BITCO General Insurance Corporation v. Front Range Excavating, Inc., 1:13-cv-00399

Bituminous Casualty Corporation seeks a declaratory judgment on whether it has a duty to defend or indemnify Front Range under Bituminous’ 2004–2005 primary and umbrella policies for two underlying state-court lawsuits.
Wrap-up (wrap) policy exclusions exclude coverage for projects covered by a consolidated wrap-up program, including Gold Peak at Palomino Park project.
Wrap exclusions were added purportedly as endorsements tied to premium adjustments for wrap-up participation; there is a dispute whether Front Range assented to these endorsements.
Two underlying lawsuits (Tri-Star and Gold Peak) allege Front Range’s grading work caused project defects; timing of Front Range’s work relative to wrap exclusions is disputed.
The court denies summary judgment on all counts, finding genuine issues of material fact regarding (a) whether wrap exclusions are valid enforceable policy endorsements, (b) whether damage arose from pre-/post-exclusion work, and (c) the effective dates of wrap exclusions.
A trial was set for February 3, 2015 to resolve these issues.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Are the wrap exclusions valid and enforceable endorsements to the Bituminous policies?	Bituminous contends Front Range assented via premium-audit-related actions.	Front Range argues the exclusions constitute unilateral policy modifications without consideration.	Genuine issue of material fact; summary judgment denied.
Did Front Range’s alleged defective grading cause the damages, or were they caused by vegetation stripping and silt fence work?	Damage stemmed from Front Range’s grading work within the wrap- excluded scope.	Damage could arise from vegetation stripping/silt fence work; timeline ambiguous.	Genuine issue of material fact; summary judgment denied.
When did the wrap exclusions become effective (Jan. 31, 2005 vs Jun. 1, 2005)?	January 31, 2005 date controls; exclusion already in place for Gold Peak project.	Date control unresolved; June 1, 2005 could be the effective date.	Genuine dispute; summary judgment denied.

Compass Ins. Co. v. City of Littleton, 984 P.2d 606 (Colo. 1999) (duty to defend arises from allegations that could be covered; high burden on insurer to show no potential duty)
Hecla Mining Co. v. New Hampshire Ins. Co., 811 P.2d 1083 (Colo. 1991) (duty to defend arises if any alleged facts might fall within policy coverage)
Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138 (10th Cir. 2000) (standard for summary judgment and drawing inferences in favor of non-movant)
Schrader v. E.G. & G., Inc., 953 F. Supp. 1160 (D. Colo. 1997) (discussion of evidence sufficiency and summary judgment standards)