Aspen Insurance UK, LTD v. Fiserv Inc., 1:09-cv-02770

This is a declaratory judgment action in the District of Colorado regarding defense-cost advancement and indemnification under a Bankers Professional Liability Policy issued to Fiserv Trust Company and related entities.
Underlying actions arise from four consolidated class actions and two arbitrations alleging custodial mismanagement of self-directed IRAs invested with Bernard L. Madoff Investment Securities.
Plaintiffs seek to limit defense-cost advancement and to deny indemnification based on exclusions for bankruptcy/insolvency and related grounds.
Defendants contend the policy requires contemporaneous defense-cost advancement and do not rely on a blanket indemnity denial at this stage.
Court must interpret the policy terms as a contract and apply the four-corners approach to determine duties, staying determination of indemnification until causation is resolved in underlying actions.
Court granted partial summary judgment for the defense-cost advancement duty, and denied indemnification as premature.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Plaintiffs must advance defense costs contemporaneously	Fiserv/Defendants rely on bankruptcy-related exclusions	Plaintiffs must advance costs per policy V(E)	Yes; advancement is mandatory on timely written request and contemporaneous.
Whether the exclusion for bankruptcy/insolvency governs defense-cost advancement	Bankruptcy exclusion applies to indemnity, not defense costs	Bankruptcy-related losses fall under exclusion	Exclusion does not apply to the duty to advance defense costs.
Whether advancement is at the insurer’s sole discretion	Advancement is discretionary	Policy terms require advancement upon written request	Advancement is mandatory when written request is made; limited discretion only if no prior written request.
Whether advancement is conditioned on insurer consent	Consent is not required for advancement; only for recoverable loss	Consent governs recoverable Loss	Advancement need not obtain prior consent; written request suffices.
Whether continuation of indemnification is ripe for decision	Indemnity issue independent and separable from underlying causation	Indemnity intertwined with causation in underlying actions	Indemnification issue is premature pending causation resolution.

Cyprus Amax Minerals Co. v. Lexington Ins. Co., 74 P.3d 294 (Colo. 2003) (duty to defend; exclusions must be clear and construed to favor insured)
Hecla Mining Co. v. N.H. Ins. Co., 811 P.2d 1083 (Colo. 1991) (insurer must show claims are solely within exclusions to avoid defense duty)
Cotter Corp. v. Am. Empire Surplus Lines Ins. Co., 90 P.3d 814 (Colo. 2004) (Four Corners approach; look at underlying complaint and policy)
Blackhawk-Central City Sanitation Dist. v. Am. Guarantee & Liab. Ins. Co., 214 F.3d 1183 (10th Cir. 2000) (duty to defend broad; multiple claims may trigger coverage)
Anglum v. USAA Casualty Ins. Co., 119 P.3d 1058 (Colo. 2005) (policy must be read as a whole; ambiguity resolved against drafter)
State Farm Mut. Auto. Ins. Co. v. Stein, 940 P.2d 384 (Colo. 1997) (ambiguous policy terms construed against insurer)
Massingill v. State Farm Mut. Auto. Ins. Co., 176 P.3d 816 (Colo. Ct. App. 2007) (specific provisions control over general provisions)