Originally from:
Fundamentals of Insurance Coverage in all 50 States - 3rd Edition - Hardcover
Fundamentals of Insurance Coverage in all 50 States - 3rd Edition - Electronic
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Colorado
Bradley W. Matthiesen, Gary L. Wickert & Douglas W. Lehrer
I. THE CONTRACT OF INSURANCE
A. Proving the Existence and Terms of Insurance Policies
Under Colorado law, a party has the burden of proof as to the elements of his
case, Exchange Nat’l Bank v. Sparkman, 191 Colo. 534, 554 P.2d 1090 (Colo.
1976). The party asserting the affirmative of an issue has the burden to prove that
issue. Atlantic & Pacific Ins. Co. v. Barnes, 666 P.2d 163 (Colo. Ct. App. 1983).
Thus, it is likely the insured has the burden of proving the insurance contract and
its terms, as well as the loss. The insurer must prove the contents of any exclusions
or limitations on the coverage amount on which it relies in defense. West v. Credit
Life Ins. Co., 30 Colo. App. 455, 494 P.2d 601 (Colo. 1972).
B. Missing Insurance Policies
1. Extent of the Burden of Proof
No Colorado court has yet addressed the evidentiary standard relating to a
missing insurance policy.
2. Proof of Contents of Missing Policies
The best evidence rule provides that, with some exceptions, no evidence
other than the original of a writing is admissible to prove the contents of a writing.
C.R.E. § 1002 (1995). Before secondary evidence is admissible, the absence of
primary evidence must be explained. Hartford Fire Ins. Co. v. Smith, 3 Colo. 422
(Colo. 1877). Where a party has negligently or fraudulently destroyed primary
evidence, he cannot introduce secondary evidence. Breen v. Richardson, 6 Colo.
605 (Colo. 1883). In general, to recover on a lost instrument, the evidence of the
former existence, execution, delivery, loss and instrument contents should be clear
and convincing. Gooch v. Rodewald, 164 Colo. 88, 432 P.2d 755 (Colo. 1967).
COLORADO
I. The Contract of Insurance
A. Proving the Existence and Terms of Insurance Policies
B. Missing Insurance Policies
1. Extent of the Burden of Proof
2. Proof of Contents of Missing Policies
II. Procedural Considerations
A. Law Governing the Insurance Policy
B. Direct Action Statutes
C. Statutes of Limitations
1. Breach of Contract
2. Tort--Bad Faith
III. Construction and Interpretation
A. What Is an Ambiguity?
B. General Contract Rules for Resolving Ambiguities
C. Rule That Ambiguities Are Resolved against Insurer
D. Limitations of "Constructions against Insurer" Rule
IV. Extent of Risks and Coverage
A. Insurable Risks
1. Expectations of the Parties
2. Liability Created or Enlarged during Policy Period
B. Insurability of Punitive Damages
C. Assignment and Transfer of Policies of Insurance
1. Transfer of Insured Property
2. Assignability of Policy
3. Consent of the Insurer
4. Exceptions to Consent Requirement
5. Reorganizations and Acquisitions
V. Rights and Obligations of the Parties
A. Duty of Insurer to Defend
1. Trigger of the Duty
2. Control of the Defense
VI. Insurer's Duty of Good Faith and Fair Dealing
A. Insurer's Duty to the Insured
1. Statutory Source/Unfair Competition--Deceptive Practices
(C.R.S. § 10-3-1104 (1989)
2. Implied Covenant of Good Faith and Fair Dealing
VII. Policy Defenses
A. Cooperation
B. Notice
C. Misrepresentation
1. False Statements
2. Materiality
3. Intent
D. Breach of Warranty
E. Failure to Pay Premiums
VIII. Environmental Issues and Insurance Law
A. Duty to Defend in Absence of Lawsuit
B. Occurrence/Accidental Event
1. Property Damage and Trigger of Coverage
2. Expected/Intended
C. Damages and Equitable Relief
D. Allocation
E. Personal Injury Liability Coverage
F. Policy Exclusions
1. Insured's Owned Property Exclusion Clause
2. Pollution Exclusion Clause
