Colorado “occurrence”

In Greystone Construction, Inc. v. National Fire & Marine Ins. Co., No. 09-1412 (10^th Cir. June 2, 2010), general contractors Greystone and Brannon were each sued by purchases of homes built by each alleging defective construction performed by subcontractors.  CGL insurer American Family Mutual Insurance Company defended both Greystone and Brannon while co-insurer National Fire & Marine Insurance Company denied a defense.  Greystone, Brannon, and American Family sued National Fire for contribution towards defense costs.  The federal district trial court entered summary judgment for National Fire.  Relying on General Security Indem. Co. v. Mountain States Mut. Cas. Co., Nos. 07CA2291 & 07CA2292 (Colo. Ct. App. Feb. 19, 2009), the court held that, because the underlying complaints did not seek damages for property damage other than to the insured’s own work, they did not allege “occurrences.”   On appeal, the U.S. Court of Appeals for the Tenth Circuit determined that, because neither the Colorado Supreme Court nor the Colorado Court of Appeals had addressed the effect of the subcontractor work exception to the “your completed work” exclusion on the “occurrence” determination, it would certify that question to the Colorado Supreme Court.  The Colorado Supreme Court subsequently declined to answer the certified question and the Tenth Circuit ultimately answered the question itself here.