The Colorado Supreme Court released two opinions on Monday, September 21. The summaries and full opinions appear below.
A.R. Wilfley & Sons, Inc., Plaintiff v. National Union Fire Insurance Company of Pittsburgh, PA; Federal Insurance Company; and United States Fire Insurance Company, Defendants. 2026 CO 64. The parties’ dispute in this insurance case centers on the umbrella/excess carrier’s obligation to defend against any occurrence “not covered” by the insured’s primary policies. The carrier and the insured offer competing interpretations of “not covered,” each yielding a different outcome. One reading construes “not covered” to mean the primary policies do not insure against the occurrence at all. The other reads “not covered” more broadly to include situations where the primary policies do insure against the occurrence but cannot pay because the primary carrier is insolvent.
Under the first reading, the umbrella/excess policies remain dormant because the occurrence is covered by the primary policies and their limits have not been reached due to the primary carrier’s insolvency. Under the second, the umbrella/excess policies are triggered because payment cannot be collected from the primary carrier even though the occurrence is otherwise covered. The choice between these interpretations is dispositive.
The certified question from the federal district court asks whether the primary carrier’s insolvency places a covered occurrence in the “not covered” category, thereby requiring the umbrella/excess carrier to drop down and provide first-dollar indemnity and defense costs. Put differently, does “not covered” include a covered occurrence when the primary carrier cannot pay? Based on the unambiguous language in the umbrella/excess policies, the supreme court
answers “no.” “Not covered,” as used in those policies, addresses the scope of coverage, not the collectibility of payment.
The policies distinguish coverage from collectability, making collectibility relevant only when the primary policies are not scheduled—and here, the primary policies are scheduled. Because the umbrella/excess policies do not insure against the financial misfortune of a scheduled primary carrier selected by the insured, they do not drop down due to the primary carrier’s insolvency. A covered occurrence remains covered even when the primary carrier is insolvent.
The division’s decision in Deisch & Marion, P.C. v. Int’l Ins. Co., 771 P.2d 19 (Colo. App. 1989), does not alter this conclusion. That case is distinguishable and its most relevant passage is dictum. In any event, to the extent Deisch is incompatible with today’s decision, it is overruled. Read the opinion.
John Litterer, Petitioner v. Vail Summit Resorts, Inc., a corporation, and Dwight McClure, Respondents. 2026 CO 65. In this case, the supreme court considers whether a plaintiff released claims against a ski resort and its employee when, after commencing litigation, the
plaintiff purchased a ski pass from the resort and executed a waiver containing a release of liability covering both defendants. The court further considers whether the plaintiff’s claim for willful and wanton conduct and prayer for exemplary damages were properly dismissed. The court first concludes that the executed waiver operated as an enforceable release agreement. Consequently, the waiver barred the plaintiff’s claims against the defendants.
The court next concludes that the plaintiff’s willful and wanton conduct claim was properly dismissed because it is not a separate, cognizable claim upon which relief may be granted, but that in any event, plaintiff’s claim was released by the waiver. Further, since there is no independent claim for relief to which the prayer for exemplary damages could attach, plaintiff’s prayer was also properly dismissed.
Finally, the court distinguishes this case from Miller v. Crested Butte, LLC, 2024 CO 30, 549 P.3d 228. Miller governs the validity of exculpatory agreements executed prior to an injury, while this case concerns a post-injury release. Accordingly, the court affirms the dismissal of plaintiff’s claims. Read the opinion.