On remand from the Tenth Circuit, the United States District Court for the District of Colorado, applying Colorado law, has held that an insurer failed to satisfy its burden of proof on allocation where it neglected to ensure that an arbitration award was sufficiently detailed.  Rockhill Ins. Co. v. CFI-Global Fisheries Mgmt., 2020 WL 996882 (D. Colo. Mar. 2, 2020).  As a result, the District Court entered judgment against the insurer for the full amount of the arbitration award.

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Applying Colorado law, the United States District Court for the District of Colorado has held that a medical professional liability insurer was entitled to reimbursement of a settlement payment made on behalf of an insured to settle a dispute with a former patient.   Evanston Ins. Co. v. Aminokit Labs., Inc., 2019 WL 479204 (D. Colo. Feb. 7, 2019).

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The United States District Court for the District of Colorado, applying Colorado law, has held that an arbitration award for faulty design and construction was potentially recoverable as “damages” under a professional liability policy, but coverage was ultimately precluded by an unambiguous and broad “Faulty Workmanship” exclusion.  Rockhill Ins. Co. v. CFI-Global Fisheries Mgmt., 2018 WL 1886805 (D. Colo. 2018).

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The United States Court of Appeals for the Tenth Circuit, applying Colorado law, has affirmed that an insurer has no duty to defend a law firm against allegations of overbilling.  Evanston Ins. Co. v. Law Office of Michael P. Medved, P.C., 2018 WL 2306871 (10th Cir. May 22, 2018).  In so doing, the court recognized that billing activities are not “professional services” as defined in professional liability policies and that claims of overbilling do not arise from the provision of professional services.

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A Colorado appeals court has held that Colorado law does not recognize an independent equitable subrogation claim by an excess insurer against a primary insurer to recover a settlement paid by the excess insurer.  Preferred Prof’l Ins. Co. v. The Doctors Co., 2018 WL 1633269 (Colo. App. Apr. 5, 2018).  Rather, an excess insurer’s rights under such circumstances are derivative of the insured’s rights under the insurance policy, and therefore the excess insurer must prove that the primary insurer acted in bad faith by refusing to settle.

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A Colorado federal district court, applying Colorado law, has held that a claim against an information technology consulting firm arising from the firm’s alleged mismanagement of a project to replace its client’s systems did not involve “property damage” (including “loss of use”) under a CGL policy.  Ciber, Inc. v. Federal Ins. Co., No. 16-cv-01957-PAB-MEH (D. Colo. Mar. 5, 2018).

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In a win for Wiley Rein’s client, the U.S. District Court for the District of Colorado has held that a liability insurer had no duty to defend an Equal Employment Opportunity Commission (EEOC) charge and related lawsuit on the basis that a letter predating the charge and lawsuit was a “claim” first made prior to the policy period. Scottsdale Indem. Co. v. Convercent, Inc., 2017 WL 5446093 (D. Colo. Nov. 14, 2017). The court held that the pre-policy letter, which alleged wrongful termination based on age discrimination, sought reinstatement and threatened litigation, constituted a “claim” because it was a “demand for damages or other relief.”

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The United States Court of Appeals for the Tenth Circuit, applying Colorado law, has held that a formal investigative order issued by the U.S. Securities & Exchange Commission (“SEC”) and related subpoenas did not constitute “Claims” alleging “Wrongful Acts” as defined under a D&O policy.  MusclePharm Corp. v. Liberty Ins. Underwriters, Inc., 2017 WL 4675701 (10th Cir. Oct. 17, 2017).

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The United States District Court for the District of Colorado, applying Colorado law, has held that two lawsuits were connected by the “single scheme” of a contractor to interfere with a government contract for a surveillance camera system.  Ciber, Inc. v. Ace Am. Ins. Co., 2017 WL 2537092 (D. Colo. June 9, 2017).  The district court further held that, because the lawsuits were connected, they were part of a single claim first made prior to the inception of a claims-made professional liability policy.  As a result, there was no coverage under the policy.

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