Hecla Mining Co. v. New Hampshire Insurance Co.

COMPANY, HECLA MINING corporation,

Delaware Petitioner, NEW HAMPSHIRE INSURANCE COM- Indemnity

PANY and Industrial Company, Respondents.

No. 89SC646. Supreme Colorado, Court of

En Banc. May 1991. Rehearing Denied June Kahn,

Kelly, Garnsey & Edwin Haglund, Denver, Williams, Trine, Kahn, Green- S. Griffin, P.C., E. Dubofsky, Jean stein & Boulder, petitioner. for Leake, P.C., Crane, Crane & Robert E. Buchalter, Durango, Casey, E. Nem- James er, Rabinowitz, Younger, Fields & Victor C. Cal., Angeles, respondent Los N.H. Ins. Co. Johnson, &

Rothgerber, Appel, Powers Baumann, Goldberg, J. Charles Frederick Vogt, Spitalnick, Gregory Mark JoAnn L. Vallin, Denver, respondent A. Indus. Indem. Co. Mark, Berkowitz, Brady

Denis H. & Backus, Brady, Denver, for ami- William J. Lawyer’s Ass’n. cus curiae Trial Colo. Haik, Kaufman, Popham, Schnobrich Daniel, Ltd., Parish, Gary Wiley Y. Den- E. ver, Popham, Haik, (state) & Kauf- Schnobrich the state of Colorado man, Ltd., Heintz, Latorre, filed suit in federal district John E. Lisa I. court under the Comprehensive Response, Environmental D.C., Washington, amici curiae Ameri- Compensation and Liability Act of 1980 Assoc., Congress, can Min. Min. Colo. New- (CERCLA), (1983 42 U.S.C. §§ Corp., mont Min. Idarado Min. Home- Supp.), against Asarco, Inc., Resurrec- Cyprus stake Min. Co. and Minerals Co. Mining Company, tion and the Res-Asarco Norton, Gen., Atty. Raymond Gale A. T. alleged Joint Venture.1 The state that the Slaughter, Deputy Gen., Atty. Chief Timo- jointly severally defendants were and liable Gen., thy Tymkovich, Jacqueline M. Sol. H. liаbility provisions under the strict Berardini, Gen., Deputy Atty. D. James CERCLA, negli- and under common-law Ellman, Gen., Atty. Mary First Asst. gence theories, cleanup for the costs and Gen., Denver, Capdeville, Atty. Asst. for damages resulting other from the dis- amicus curiae State of Colo. charge heavy metals and other contami- Bradley, Campbell, Madsen, nants into California Carney & Gulch from the Yak Jacus, Golden, Tunnel.2 The state filed an John R. amended com- for amicus curiae plaint April seeking compensation Lowry The Coalition. cleanup for the costs for the entire Califor- Wilson, Denver, Geoffrey T. Anderson drainage nia system. Gulch basin P.C., Oshinsky, Eugene Kill Olick & R. The state’s CERCLA was initi- Anderson, Weiseman, Geri L. New York employees ated after of Asarco caused a City, League. for amicus curiae Colo. Mun. surge yellow sedimentary sludge to emit Steele, P.C., White & Frederick W. shoring from the Yak Tunnel when timbers Klann, Denver, for amicus curiae Ins. Envi- and accumulated debris were removed that Litigation ronmental Ass’n. impounded had the contaminated water.3 yellow The sedimentary sludge emitted Justice ERICKSON delivered the pre- from the Yak Tunnel was a limonitic Opinion of the Court. cipitate, hydroxide formed ferric and a sulfates, variety of ferric that accumulated granted We certiorari to review New drainage on the bottom of the tunnel. The Hampshire Insurance Co. v. Hecla Min- surge of contaminated turned water ing (Colo.App.1989), 791 P.2d 1154 twenty-mile stretch of the Arkansas River comprehensive which held that general orange. liability policy require insurance did not an damages insurer to defend an action for 1985, Resurrection, Asarco, January pollution resulting from the min- insured’s and Res-Asarco Joint Venture filed a third- ing activities. We reverse and party complaint against Mining remand Com- pany.4 with directions. against The Hecla seeks statutory liability present drainage 1. CERCLAcreates to allow for of the mine shafts into the disposal and former owners of sites, Gulch. hazardous waste California wastes, transporters of hazardous and arrange transport dispos- those who for the "surge” 3. A is a sudden release of water that has al of hazardous waste. 42 U.S.C. 9607. Un- § impounded surge been in a mine tunnel. A CERCLA, any party ownership der with an in- generally high produces of short duration and responsible terest in the site for the release of properly flow of water. When a tunnel is main- strictly regard- contaminants can be held liable part ongoing mining operations, tained as liability occur, less of fault or intent. Id. The under surges although do not once maintenance several, joint regardless CERCLAis of each stops, creating collapse, roof rock and timbers party’s degree responsibility ‍​‌​​​‌‌‌‌​‌​​‌​​​​​‌‌​‌‌‌​​​​‌​‌‌‌‌‌‌‌​​‌​​​​​‌​‍barriers, of fault or for the impounding debris water that has creation of the hazardous Id. condition. seeped hydraulic into the tunnel. When the pressure high enough, impounded becomes surge water Leadville, bursts the debris barrier and a 2. The Yak Tunnel is not far from surge results. Flow rates and volumes of a developed between 1923. unpredictable. tunnel extends four and one-half miles under upper Iron Hill and Breece Hill in California Gulch, designed portal Third-party complaints and was as a for the were filed also transportation adjacent companies of ore out of mines and over 200 other and individuals. oc- and unintended discharges the was into contribution scope was thus outside from 1938 currence and Yak Tunnel that occurred appeals coverage. Hecla was a shareholder The court 1953 when ownership Industrial, interest one-third New had a nor concluded that neither Mining Company. The Res- Resurrection defend or Hampshire, had a gold, Mining Company mined sil- urrection indemnify liability resulting Hecla for mine. ver, Resurrection and lead ore by mining its generated activities. connect mine shafts Two of Resurrection’s the terms of Hecla’s hold that under We Yak From into the Tunnel. with and drain policies, Industrial and both CGL held lease inter- Hecla also a 1981 to duty Hecla Hampshire have a impound- tailings est in a mill and several The action. against the state’s CERCLA in located the lower California ments Hampshire’s or New issue of Industrial’s Gulch. indemnify only Hecla can be deter- has been de- liability mined after of Hecla Indеmnity provided Company Industrial termined, liability ripe reso- general is therefore not comprehensive of a series (CGL) covering proceedings.5 policies stage Hecla of the insurance lution 1, 1974, January through January from Hampshire Company Insurance 1982. New I year insur-

provided a of one CGL series January policies for Hecla ance to issued The CGL insurance January Hecla re- through Hampshire by Industrial and New Hecla Industrial and New quested that both liability coverage prop- defense and to limit against the Hampshire provide a defense by an The erty damage caused occurrence. third-party complaint. In- joint venture’s in defined Hecla’s word “occurrence” is coverage and filed a declar- denied dustrial policies as: in Denver District atory judgment action accident, re- including or an continuous judicial of determination Court obtain conditions, which re- peated exposure to duty to defend the third- had damage, bodily property in or injury sult claim, duty it had a party and whether expеcted nor intended from neither indemnify any liability resulting Hecla for standpoint of insured. 57; from the lawsuit. C.R.C.P. Bulletin, Casualty Surety Aat-1 Fire 13-51-101, (1987). New 6A C.R.S. § coverage (1986) (commenting on CGL agreed to Hampshire originally defend interpretations of occurrence forms and Hecla, right its subject to a reservation of provisions). Hec- trigger and claims-made coverage. Hampshire later deny exclusions that policies also contain la’s in de- coverage and intervened denied scope coverage as defined limit the brought In- claratory judgment by action pertinent The ex- insuring agreement. dustrial. is: at issue here clusion summary entered district court apply does not ... This insurance Hecla, finding that judgment in favor of damage arising bodily property or injury Hampshire had and New Industrial dispersal, release or discharge, out action, and the CERCLA soot, fumes, smoke, vapors, escape of indemnify that the issue alkalis, chemicals, acids, liquids toxic ap resolution. The court of ripe not irritants, gases, materials or other court, waste holding рeals reversed district contaminants, upon into pollutants known of a Hecla knew or should have that land, any atmosphere or water mining ac probability its substantial water; body of but this exclu- dam course or result in environmental tivities would discharge, resulting damage apply sion not such age, does and therefore if indemnify have a Industrial or New defend and the 5. The City indemnify premature, and not Hecla is should separate Johnstown v. and distinct. re- claims are be made until Ins. 877 F.2d Bankers Standard (2d Cir.1989). Any Id. at 1153. of whether solved. determination dispersal, is sudden escape release or court determines the damage was un- accidental expected unintended, .... discharge pollution was not sudden and accidental added.) (Emphasis policy pro- This CGL and is therefore not covered under the CGL liability vides defense policies. insurance damage that results from an occurrence, and unintended including damage by discharge pollu- caused A

tion, discharge unless that is sudden and accidental.6 appeals The court of conсluded that damage caused mining oper Hecla’s discharge Hecla contends unexpected, ations was not and therefore heavy metals into California Gulch was nei- was not an occurrence covered expected, intended, ther nor conse- policies. insurance The court appeals quence mining of its activity, and that al- reasons were that: though discharge heavy metals con- pollution, stitutes discharge was sud- The results of one’s intentional acts den and accidental. Hecla therefore con- cannot be if they are the tends that both Hamp- Industrial and New ordinary consequences of those acts. shire are liable for defense and indemnifi- Here, Hecla knew or should have cation costs associated with the state’s known of a probability substantial CERCLA action. mining its activities would result in envi-

Industrial and Hampshire New both con- damage. ronmental The Colorado Mined tend that the contamination of Act, 34-32-101, California Land Reclamation § reasonably Gulch was (1984), foreseeable and thus expresses C.R.S. the General As- expected was and not an sembly’s occurrence under intent to “aid in protection the terms of policies. aquatic Industrial of wildlife and resources ... and Hampshire argue and New health, that even if promote this safety, general Following widespread insured, prosecution operations by such such contractor actions, subcontractor; policy CERCLA or or the standard CGL was (ii) for, operations if the are to test moni- provides: amended and now tor, remove, contain, treat, up, detoxify clean 2. Exclusions. neutralize, to, any way respond or inor or apply This insurance does not to: pollutants. assess the effects of Subparagraphs (a) (d)(i) apply do not f.(l) “Bodily injury” "property damage” or "bodily injury” damage” "property arising or actual, arising out of the or threatened heat, out of smoke or fumes from a hostile discharge, dispersal, seepage, migration, re- fire. exclusion, escape pollutants: lease or As used in this a hostile firе means (a) one which any premises, becomes uncontrollable or breaks At or from site or loca- out from where it was intended to be. (2) Any any tion which is or was at time owned or loss, expense arising cost or out of to, occupied by, any or rented or loaned in- any: sured; (a) Request, any demand or order that in- (b) any premises, At or from site or loca- for, monitor, up, sured or others test remove, contain, treat, clean any by tion which is or was at time used or neutralize, detoxify or any handling, insured or others for the to, any way respond or or assess the effects of storage, disposal, processing or treatment of pollutants; or waste; (b) by gov- Claim suit or or on behalf of a (c) any Which are or were at time trans- authority damages ernmental testing because of handled, stored, treated, of, ported, disposed for, monitoring, cleaning up, remov- processed by any or as waste or for insured or ing, containing, treating, detoxifying or neu- any person organization you or for whom to, tralizing, any way responding or in or may legally responsible; or assessing pollutants. the effects of (d) any premises, At or from site or loca- solid, any liquid, gaseous Pollutants means any any tion on which insured or contractors contaminant, including thermal irritant or working directly or subcontractors or indi- smoke, soot, fumes, acids, alkalis, vapor, rectly any performing on insured’s behalf are chemicals and waste. Waste includes materi- operations: recycled, als to be reconditioned or reclaimed. (i) pollutants brought Bulletin, F-l, (No- if the on or to the Casualty Surety Fire -2 premises, 1990). site or location in connection with vember the insured’s intentional act. The Second people of this state.” Sec- welfare said: Circuit 34-32-102, (1984).... 14 C.R.S. tion Thus, contrary showing, general, injuries the Act or dam- absent a what make ages expected or rather than intended provides notice to all mine constructive knowledge intent accidental are the their activities could cause operators that enough It is that an of the insured. not damage. environmental damages might insured was warned that damage Accordingly, the that oc- ... that, actions, once ensue from its ordinary consequence of curred was an warned, to take insured decided law, As matter Hecla’s actions. proceed as calculated risk before. unexpected. only in- Recovery will if the be barred Mining Ins. v. Hecla Co. can damages, intended the or if it sured omitted). (citations at 1157 791 P.2d were, in a damages be said that appeals reasoning sense, er- The court of broader “intended" the insured that the dam- ror. The Mined Land Reclama- because insured knew Colorado ages directly would flow and immediate- provide tion Act does not notice to all mine ly from its intentional act .... mining operators that could cause environ- appeals, damage. mental (citations omitted). Id. at 1150 also Act, Mined failed interpreting the Land Casualty Law Aetna Brooklyn School v. (2d Cir.1988). it re- entire section which consider 849 F.2d & Sur. 34-32-102, holding. persuaded lied for its Section 14 We are the Second Circuit (1984), phrase expected and hold that the “nеither begins: C.R.S. only nor intended” be read to ex- should policy It to be is declared knew damages clude those that the insured that the extraction of minerals and state directly immediately flow and from would by reclamation of land affected such the its act. intentional necessary prop- extraction are both and complaint The con state’s CERCLA It is er activities. further declared be The asserting liability. strict tains claims policy that the of state both such complaint against Helca does third-party compatible. are activities should and allege expected that Hecla or intended not general assembly It is the intent of the damage result from its environmental of by the enactment this article to allow mining operations. allegation There is no development of for the continued the damage by proof and that the caused no state, re- mining industry of this while expected inci Hecla was or intended. The quiring persons mining those involved must be an occur dent therefore deemed by reclaim land affected operations to rence under the terms of the CGL operations such .... determining purposes of the insur the added.) Contrary to the court (Emphasis ers’ defend. analysis, Mined Act appeals of the Land mining necessary proclaims a and that is B promoted by proper activity, and should be Indemnity and New contend of the state Colorado. discharge that even if the is an occurrence policies pro Hecla’s CGL insurance by discharge is policies, covered the the is an accident that vide that occurrence subject exclusionary the clause because from the expected nor intended is neither a dis- it was not sudden and accidental City standpoint of the insured. charge, continuously but rather occurred of Insur years. v. Bankers Standard period many Johnstown of con- Cir.1989), Co., (2nd phrase 877 F.2d 1146 the tends because the ance that sudden damages only ambiguous, that must Circuit held accidental is be con- Second they against if knew the insurance carriers to the insured strued intended unexpected immediately from mean and unintended.7 directly and would flow damage by discharge the the focuses on whether caused definition of occurrence 7. The

1089 Co., Hills v. Ins. Cincinnati its seeking insurer to avoid 9 Ohio St.3d An heavy 555, 177, (1984). an insured bears to defend 459 N.E.2d 558 the Since City v. Bankers Johnstown burden. is to defend broader than the Co., Ins. Standard An 877 F.2d at 1149. insurer in indemnify, the must defend the the to defend arises when insurer’s pollution if sured the could have occurred insurer underlying against the suddenly accidentally. Whether cover alleges facts any might fall within the age ultimately con available under the v. Douglass Hart policy. coverage question by tract is a of fact to be decided Ins. 934, (10th 602 F.2d 937 Cir. ford of fact. Reliance Insurance Co. the trier 1979). liability “The actual of the insured Ill., Martin, Ill.App.3d 94, 81 to the claimant is not the which criterion Ill.Dec. N.E.2d places upon company the insurance the ob See (1984). Casualty Fire Bulle Surety Rather, ligation obligation defend.” tin, (not (1990) necessary Aa-1 alle that all allegations arises gations coverage). scope come within complaint, sustained, which if im appropriate course of Id. action pose liability policy.8 covered an insurer who believes that it is under no insurer’s to defend is “[W]here defend, obligation provide is to a defense apparent pleadings from the in the case under a insured, the insured reservation of its do but the rights argu seek reimbursement should potentially state a claim which is prove facts at trial ably policy coverage, there is incident result within ing poli theory liability was not covered some as to whether a of re doubt covery policy cy, been or to file a action within has adjudic pleaded, accept the insurer must the de after case has been Martin, City Willoughby Reliance v. claim.” Ill. fense of the ated.10 unintended, (1989) ("when pollution unexpected was N.E.2d an exclusion pollution upon deny exclusion clause focuses coverage, in clause is relied discharge demonstrating surer has burden of that the Casualty unintended. Claussen v. Aetna & Sure- ‘allegations pleading cast that (1989). ty Ga. 380 S.E.2d 686 exclusions, solely entirely policy within the toto, and, further, allegations, that the are in 263, Co., Gray v. 8.See also Zurich Ins. Cal.2d 65 subject interpretation’”) (emphasis other to no 168, 276-77, 113, Cal.Rptr.104, 177 54 419 P.2d omitted); (citation original) Manage in Waste (1966) (insurer obligated even to defend insured Co., v. Peerless N.C. ment 688, 690-93, Carolinas Ins. 315 of application excluding assuming of clause cover 374, (in (1986) S.E.2d 340 377-78 age intentionally damage, caused since the of duty to defend is measured facts surer’s alleged complaint might sup in the facts have alleged pleadings, any and doubt as to cover in negli ported judgment merely a based on the insured). age insured, in favor of is to be resolved gent of the the conduct which is within coverage policy); of the Hawaiian & Guar. Ins. Blanco, 9, -, 876, 72 Co. v. Haw. 804 P.2d Similarly, complaint alleges the facts where 9. (1990) (duty 879-80 to defend arises whenever a which would "establish reasonable likelihood allege might pleadings potentially facts which alleged insured] that the tortious conduct of [the liability); Ins. lead to indemnification Zurich ...,” coverage may is the insurer excluded from 51, Indus., 23, Raymark Co. Ill.2d 112 v. 118 declaratory judgment the to determine seek a 684, 697, 150, (1987) Ill.Dec. 514 N.E.2d 163 duty Troelstrup to defend. v. District insured’s obligat (although may ultimately be insurer 1010, Court, (Colo.1986); see 712 P.2d 1012-13 insured, indemnify defend ed to insurer ‍​‌​​​‌‌‌‌​‌​​‌​​​​​‌‌​‌‌‌​​​​‌​‌‌‌‌‌‌‌​​‌​​​​​‌​‍must Bank in also First Nat’l Bristol v. South Carolina bring complaint alleges insured if facts which 520, 522, 569, Co., Tenn. 341 S.W.2d 570 Ins. 207 coverage potential indemnity within the claim (1960) (insurer has no to defend where Vanguard policy); Republic Co. v. of the Ins. policy within cov- facts fall exclusion to 327, 331, 426, Buehl, Minn. 204 N.W.2d 295 erage). (where (1973) allegations the a com 429-30 plaint of terms of state cause of action within the beyond permitted go If the trial were policy coverage, the insurer 10. must undertake complaint and the to determine Industrial’s insured); Fire the Graber v. State Farm defend defend, Hampshire’s would Co., 214, (Mont.1990) P.2d & Cos. (same); 797 217 N.J.Super. likely Co., place in the dilemma of establish- v. Home MacDonald Ins. 97 declaratory -, 480, (same); ing al- (1967); action that 501, A.2d 235 482 responsible discharge though of Corp. for the Elecs. v. American Assur. Technicon Home 66, 533, Gulch, Co., 73, 531, pollution dis- 544 N.Y.S.2d 542 into the California 74 N.Y.2d 1090 590, solely 97, complaint 467

App.3d at 81 Ill.Dec. at N.E.2d v. City Willoughby Hills Cin- 290; entirely within the exclusions in the insur- Co., Id. An insurer cinnati Ins. policy. 558. De- not excused N.E.2d at ance 459 there termining based on the from its defend unless is no lеgal factual or basis on which the insurer allegations contained within legitimate might eventually ex- be held liable to indemni- comports with insured’s Group Ins. defense, See Hartford fy pectation prevents the insured. Court, v. District 1013, evading coverage filing a 625 P.2d 1018 insurer City see also v. (Colo.1981); Johnstown declaratory judgment action when com- Co., Bankers Standard Ins. against in plaint the insured is framed 877 F.2d at contemplated by liability coverage 1149. terms Ins. policy.11 insurance Hartford a duty The determination of Court, Group v. District 1013, P.2d 625 in depends defend this case on the terms in (Colo.1981). 1018 policy, interpretation the insurance policy upon principles

In order to avoid cover of those terms based Dairy Marez v. interpretation. age, an insurer must establish that contract Co., land Ins. 286, (Colo. particular in exemption applies claimed 638 P.2d 288-89 Benham v. 1981); case, and that the exclusions are not sub Manufacturers Exchange, Indem. Wholesalers ject interpreta any other reasonable 685 P.2d v. City Johnstown Bankers 249, (Colo.App.1984). 253 Hecla’s CGL in tions. Co., Standard Ins. meaning F.2d аt 1149. surance do not define the 877 Koncilja Trinity v. Ins. also Universal phrase “sudden and accidental.” Co., 939, 27, interpretation phrase Colo.App. 528 P.2d “sudden (1974) (having affirmatively expressed dependent cov accidental” is therefore erage promises, phrase ambiguously in through broad the insurer is used any policy’s exclusionary assumes a to define limitations the context of Ambiguous upon explicit language in clear and must clause.12 terms). The insurer has a in favor of the insured and construed policy. insurer the insurer drafted the unless the can establish that who charge defense, discharge was both sudden accidental. This was sudden and accidental for the purposes the most reasonable and effective in exclusion. See Farm action, Hammer, declaratory judgment unduly Bureau Mut. Auto. Ins. Co. F.2d compromise 793, (4th Cir.1949); Hecla’s defense the CERCLAac- Lane v. Fire Hartford (E.D.Mo.1972); F.Supp. tion where the liability is based on strict Ins. 85-86 claim. Gray v. Zurich Ins. 65 Cal.2d Cal.Rptr. P.2d If the action were imposed The burden on Industrial and New discharge result a determination Hampshire by requiring that the accidental, was neither sudden nor allegations in the be determined com- intended, state, expected but was and then the negligible plaint compared are with the burden action, only in the need amend its defending declaratory imposed CERCLA to include intentional dis- beyond judgment action which looks to facts charge invoke the doctrine of collateral complaint. See Ins. estoppel against Group Hecla. Ins. v. Hartford Hartford Court, Group v. 1017. 1013, District 625 P.2d at Court, (Colo.1981). 625 District P.2d 1016 However, Hampshire pro- if Industrial and victim, Requiring average auto accident to the vide Hecla with defense state’s CERCLA average home owner to bear the onerous or action, and it is there determined that Hecla they proving are financial burden of that enti- liable, any judgment not insurer avoids liability tled to a defense from claims asserted liability under its insurance contract. If Hecla against deny protec- would them insured rights been a reservation of had defended under liability policy. afforded tion sought no been hаd to the and Hecla was found to liable state CERCLA, have 12. Some courts determined that terms under that determination have ambiguous by subsequent declaratory pro- “sudden and accidental” are no on a had effect they by Indemnity ceeding brought Hamp- fact and New mere are not defined insur- seeking policy. Buckeye Liberty ex- ance See Union Ins. v. shire reimbursement for defense 127, Chem., penses, App.3d since a determination as to strict liabili- Solvents & 17 Ohio 477 (1984). ty negligence does resolve whether N.E.2d 1227

1091 Ekstrom, Northern Ins. Co. N. Y. v. 393, (1989). 784 A.2d 397-99 See also Great 320, (Colo.1989); Royal Kane v. P.2d 323 Corp. Lakes Container v. National Union America, Ins. 678, Co. 768 P.2d Pittsburgh, Fire Ins. Co. 680 727 F.2d 30 (Colo.1989); Republic Jernigan, Ins. Co. v. (1st Cir.1984) (complaint alleged pollu 229, (Colo.1988). 753 P.2d 232 Terms used continuous); tion Amer was deliberate ambiguous they a contract are when Maryland ican v. States Ins. Co. Casualty susceptible to than more one reasonable Co., F.Supp. (E.D.Mich.1984) 587 1549 interpretation. Northern Ins. Co. v. Ek Indiana, (same); Barmet Inc. v. Securi strom, 784 P.2d at 323. ty Group, Ins. 425 N.E.2d 201 (Ind.App. 1981) (same); v. Techalloy Co. Reliance majority A addressing of the courts Cо., Ins. 1, Pa.Super. 338 meaning phrase 487 A.2d 820 “sudden and acci (1984) (same). dental” as used in insurance CGL phrase ambigu have determined that the determining plain When ous and therefore must be construed words, ordinary meaning of definitions in a insurer to mean recognized dictionary may be considered. and unintended. See Claussen v. Aetna People v. Forgey, 781, (Colo. 770 P.2d 783 Co., Casualty & 333, Sur. 259 Ga. 380 1989). so, doing In we find that a number (1989); Fidelity United States S.E.2d 686 recognized dictionaries differ on the Co., Specialty & Guar. v. Coatings 180 meaning of the term “sudden.” Webster’s 378, 386, Ill.App.3d 306, 311, 129 Ill.Dec. Third New International Dictionary 2284 1071, Upjohn (1989); 535 N.E.2d Co. 1077 (1986) attaches a number of definitions to Co., v. New Ins. Mich.App. 178 “sudden.” Webster’s first defines “sud 706, 714, 813, (1989); 444 N.W.2d 817 “happening previous den” as without notice Serv., Realty Broadwell Fidelity Inc. v. & occurring unexpectedly ... ... not fore N.Y., Casualty Co. 516, N.J.Super. 218 synonyms seen.” Webster’s then lists 531-35, 76, 528 A.2d (App.Div.1987); 84-85 “sudden” “prompt” include and “im Co., Allstate Ins. Co. v. Klock Oil 73 mediate.” Dictionary Random House 486, 488, 603, A.D.2d 426 N.Y.S.2d 605 English (2 Language 1987) ‍​‌​​​‌‌‌‌​‌​​‌​​​​​‌‌​‌‌‌​​​​‌​‌‌‌‌‌‌‌​​‌​​​​​‌​‍1900 ed. (1980); Kipin Indus., Inc. v. American temporal defines the word “sudden” in a Universal Ins. 228, App.3d 41 Ohio “happening, made, coming, sense as 231, 334, (1987); 535 N.E.2d United 338 quickly.” done Dictiоnary Black’s Law Union, Pac. Ins. Co. v. Van’s Westlake (5th ed.1979) 1284 defines “sudden” as Inc., Wash.App. 664 P.2d 1262 “[hjappening previous without notice or Reclamation, Ltd., (1983); Just v. Land notice; very coming with occurring brief 155 Wis.2d Wis.2d unforeseen; unexpectedly; unprepared (1990). N.W.2d 575-76 Other courts for.” have determined that “sudden and acciden temporal quality tal” has a and means im Casualty Claussen Aetna mediate, unexpected, and unintended. Surety 333, 335, 259 Ga. 380 S.E.2d Fidelity United States & Guar. Co. v. (1989), Georgia Supreme Court Coals, Inc.,

Star Fire (6th 856 F.2d stated: Cir.1988); American Motorist Ins. v.Co. Perhaps, secondary meaning is so Corp., General Host F.Supp. is, common in the vernacular in- (D.Kan.1987); Fireman’s Fund Ins. Co. v. deed, difficult to think of “sudden” with- Corp., Ex-Cell-O 1317, 702 F.Supp. 1326 temporal out a connotation: (E.D.Mich.1988); a sudden Corp. Outboard Marine flash, Co., speed, a sudden burst of Liberty Mutual Ins. a sudden 212 Ill.App.3d But, bang. on reflection 156 Ill.Dec. one realizes 570 N.E.2d 1154 Carolinas, (1991); that, Management popular usage, even in its Waste “sudden” Inc. v. Peerless Ins. 688, 693, usually does not 315 N.C. describe the duration of (1986); event, Lower Paxton 340 S.E.2d an unexpectedness: 379 but rather its Township Fidelity v. United storm, States a sudden a sudden turn in the Guar. 558, 566, road, Pa.Super. 383 sudden death. Even when used to event, policies extend to the word Hecla’s CGL of an

describe the onset The connotation that accidental occurrence. temporal a sudden and has an elastic Suddenly, it’s expectations: is- varies with trial resolved the court English Dictio- spring. also Oxford summary judgment. No by entering a sue examples (1933) usage nary, (giving at 96 the CERC- allegations made in either were dating e.g., “She heard a back com- third-party LA or in the her”; and, “A sudden step behind sudden by plaint damage caused Hecla’s path my As unex- little river crossed tunnel discharge the contents of Yak comes.”). serpent pected as a proof expected intended. No was either or by Indemnity or New was offered either reasonably can be Although “sudden” Hampshire, discovery proceedings had not immediate, it can abrupt mean or defined to completed, and the factual issues had been unex- reasonably be mean also defined the tri- Accordingly, not been determined. Since the term pected and unintended. In- concluding court not err in al did susceptible to more than one "sudden” is demnity and New had the definition, ambigu- term is reasonable to defend Hecla. ous, phrase and therefore construe we against the insur- “sudden and accidental” court of We reverse remand unexpected and unintended.13 er to mean appeals with directions reinstate If we “sudden and acci- were construe against entered the trial court temporal solely a connota- dental” to have Indemnity Hampshire. and New tion, defi- the result would be inconsistent policies. In the nitions CGL within dissents, MULLARKEY, J., occurrence, defining portion J., ROVIRA, C.J., KIRSHBAUM, include accident is defined to “continuous join in the dissent. conditions, repeated exposure to which or damage, bodily injury property or result dissenting: Justice MULLARKEY expected neither nor intended respectfully majority’s I from the dissent standpoint of the insured.” If “sudden” opinion. this is an I do believe that given temporal connotation were appropriate case which determine the immediate, abrupt “sud- phrase then solely insurers’ duties to defend based discharge” den accidental would mean: com- underlying immediate, abrupt and continuous or plaints. Although insurers filed this discharge. phrase repeated “sudden action, case declaratory judgment is inherently thus and accidental” becomes motion for us as result Hecla’s before contradictory meaningless. City summary judgment. I would reverse the Chevron, U.S.A., Inc., 634 Northglenn v. granting motion trial court order (D.Colo.1986); F.Supp. United summary judgment dispositive because Co., 653 v. Conservation Chem. States of fact remain to be resolved before issues (W.D.Mo.1986); F.Supp. 203-04 Van’s a court can decide whether the insurers Union, Inc., Wash.App. Westlake have in this ease. duties 711-15, P.2d at 1265-66. remand, the On trial would have com Neither the state’s CERCLA discovery proceed discretion either with con plaint, third-party complaint nor action and to expected asserting that Hecla tains claims pollutants resolve the issue of the insurers’ duties to discharge into or intended declaratory hold action in as a result of its min defend or to the California Gulch abeyance ing operations. until the claim (Colo.1990), type Troelstrup, P.2d 13. The determination that “sudden and acciden- "this ambiguous phrase supported dispels tal” is an comprehensive debate the insurer’s large conflicting authority. amount of Al- language exclusionary the contention that is though conflicting the mere author- existence Ltd., Reclamation, clear.” Just v. Land 456 ity ambiguity the of a con- does establish N.W.2d at 578. term, see Co. v. tract Allstate Insurance

1093 - (10th 21, 1991) ap- (Westlaw Hecla is resolved. the first Under Cir. March 35967) proach, permit (concluding, the trial court could based “extensive findings underlying of fact in parties proceed discovery with to devel- [an case] indicating op pollution that the at issue complete more factual record which ... defendants,” by pol- was intended that the the trial to determine will enable court lution was granting not “accidental” and damages alleged whether the summary insurer’s motion for releases constitute an occurrence within that it did duty not have a to defеnd or and, so, the insurance if indemnify); Corp. Great Lakes Container the releases fall within the exclu- v. National Union Fire Ins. If, Co. Pitts- policies. in sion clauses of the alter- (1st burgh, Pennsylvania, 727 F.2d 30 Cir. native, declaratory the trial court held the 1984) (“Under law, abeyance, require action in I would complaint policy may and the alone be suf- provided Hecla be with a defense to the ficient for a coverage. determination of no underlying underlying claim until the claim Independent evidence, course, may is resolved. Then the insurers could seek complaint needed if the in the along reimbursement for defense costs action does not on its face establish lack of with a determination of their duties to de- (citations coverage.”) omitted); Atlantic indemnify fend and to Hecla. Cook, Mut. Fire Ins. Co. Savannah v. (5th Cir.1980) (“[I]n 619 F.2d 555 I. declaratory action to determine an insur- I acknowledge general that the rule for duty defend, may er’s the court take determining duty an insurer’s purpose deciding evidence for the requires examining allegations of the duty insurer’s in regard, defend underlying complaint comparison with [underlying] where the facts See, policy. the terms of the insurance petition are sufficient to establish ... liabil- Co., e.g., Casualty Lee v. Aetna Surety ity part on the of the insured but are silent (2d Cir.1949) (“[I]t 178 F.2d 751 is the as to the facts or characterization thereof duty claim which determines the insurer’s exclusion.”) upon policy (con- relied for a defend; is irrelevant law); struing Boyce Thompson Alabama may get insurer in information from the Research, Institute Plant Inc. v. In- sured, else, anyone or from which indi Am., F.Supp. surance N. Co. cates, demonstrates, injury even that the (S.D.N.Y.1990) (denying summary judg- ”); not in fact is ‘covered.’ Travelers In duty ment on the issue of insurer’s dent. Dingwell, Co. v. A.2d 227 defend, despite controlling authority that (Me.1980) (insurer had to defend be by allega- determined poten cause the “disclose[d] underlying complaint, tions of because liability tial within development further factual was warrant- allegation no of facts which contain[ed] damage, ed to determine whether as al- necessarily coverage.”) exclude legеd complaint, occurred while the (emphasis original); Technicon Elec premises being contemplated were used as Corp. tronics v. American Home Assur policy); American States Ins. v.Co. Co., 66, 78, 74 N.Y.2d ance N.Y.S.2d Maryland Casualty 587 F.Supp. 531, 533, (1989) 542 N.E.2d (E.D.Mich.1984) judg- (declaratory (“The duty to defend insureds ... is de where, ment despite action insurer state allegations rived from of the authority to defend is deter- policy.”). and the terms of the allegations mined based on com- cases, however, Many plaint, “subsequent have held that an looked dis- covery insurer’s to defend is determined testimony trial” to discern gained by looking based on evidence be- “continuous nature of insured’s See, yond complaint. dumping” the insurer and held that had no e.g., indemnify); Kepner American Motorists Ins. Co. v. Gen- to defend or — 88-1503, Corp., eral No. Host F.2d Western Fire Ins. 109 Ariz. present in (1973) (holding, authority Both of these rationales are despite

P.2d 222 duty underlying the to the general proposition for that this case. Both CERCLA the allega- the complaint determined based on in complaint third-party defend is and thе that an insurer had complaint, merely tions the case served notice of functions. underlying the to where duty third-party complaint no defend The also was framed by the based on policy prior claim was covered discovery, party to before the third pleaded complaint in but other the complainants facts could know facts that would complaint ex- appearing permit facts not specific allegations.1 more coverage); v. Barmet Indiana cluded Moreover, complaint against the because (Ind. Group, 425 N.E.2d 201 Security Ins. merely notified Hecla of a strict lia- (holding, based on factual de- Ct.App.1981) CERCLA, bility claim under the com- by trial in declara- terminations made plaint’s allegations to specify did not need tory proceeding, that insurer had expected to either that Hecla intended or discharges were duty no to defend because pollute alleged or not that releases were accidental); not Bituminous sudden and majority and accidental. As the sudden Bartlett, Corp 307 Minn. Casuаlty notes, ownership an any party with interest (1976) (holding, on based N.W.2d in the responsible the site for release deposition revealed that defective which strictly un- contaminants can be held liable was materials were used construction fault regardless der CERCLA or intent. standards, workmanship contrary to that op. at n. 1. Maj. See also U.S.C. duty no to defend because dam- insurer had Thus, need the there no § ages expected by been should have party allege complaint third facts in its to insured); Ins. Co. v. Transamerica which, concerning intent if the insured’s Sunnes, Or.App. 711 P.2d 212 in proven, result a denial of cover- would (1985)(insurer duty not did have age. purposes It is immaterial of liabil- indemnify in to the court or case submitted ity under whether dam- CERCLA facts). parties’ stipulation of See also age or unintended City v. Bankers Standard Johnstown alleged releases were sudden Ins., (2d Cir.1989) (“[W]e F.2d 1146 accidental. hold did not meet their that insurers they no showing burden of that had addition, third-party complaints were City CERCLA action. defend against filed more than 200 other defen- This is so whether is measured entirely imрlausi- in this case. It is dants ‍​‌​​​‌‌‌‌​‌​​‌​​​​​‌‌​‌‌‌​​​​‌​‌‌‌‌‌‌‌​​‌​​​​​‌​‍against CERCLA complainants expect third-party ble to whole.”) alone or the record as knowledge allege have sufficient added). (citations omitted) (emphasis intent of than 200 defendants and the more alleged releas- nature those defendants’ have Several rationales been offered for many naming es. The of so defendants beyond allegations of un- looking case, complaint in this third-party how- derlying complaints to determine whether ever, necessary is a result CERCLA. an has to defend. Two of insurer designed require CERCLA is defendants are summarized well in these rationales potential seek contribution from Kepner, 509 P.2d at 224: 109 Ariz. may (1) rules, myriad of other defendants who also pleading under modern com- pollution or strictly be held liable for the plaint serves notice function and is Findley R. prior discovery which contamination at issue. See crystal- framed case; (2) Farber, (1988) D. Law many lizes the facts Environmental CERCLA], cases, alleged (“[Under joint liabil- proof facts will deter- several obligation ity general gоvernment rule. of the insurer is the mine the under obligation join all policy. thus is relieved of merely allegations, might prove able 1. I believe that a an insured do not “knowing” discharges, its conduct fell within the terms of "intentional" creating example, policy, remove insurer’s thus insurer’s to de- allegations. Despite based on those such fend. (PRPs) potentially responsible parties action to determine duty their to prove indemnify to individual contributions its and New burden of in the the hazardous waste sites. The intervened action. Rath- proving divisibility proceeding discovery of harm the defen- er than with is on to deter- seeking liability. to limit his this mine the two insurers’ duties dant to defend or situation, however, subject indemnify, of Hecla refused contribution to an- great espe- among importance, interrogatories produce PRPs is of swer doc- govern- to those cially requested whom the uments as Industrial Indemni- initially proceed ty Hampshire, citing ment chooses to recov- the rule that response costs.”). duty ery makes the an to defend is This insurer’s determined duty allegations сomplaint. determination of an insurer’s to de- based on of the Order; allegations third-party fend in a for a based Motion Protective seeking complaint Opposition contribution under Hecla’s to Plaintiff’s Motions to particularly Compel An inappropriate. CERCLA and For Extension of Time.3 summary judgment, Hecla moved for rely- The second rationale from also Kepner ing rule. majority on the same then to applies this case. Because is a CERCLA questions resolves all in favor liability statute, proof strict though of Hecla even Hecla moved for required liability facts establish the summary judgment though and even Hecla obligation will not determine the cooperate discovery refused to with to de- under the issue. It the insurers at revealing velop facts whether Hecla’s con- necessary for third-party is not com- claim brings duct within the insurance plainants to establish any whether policies and exclusions this case. No unintended, damage or far in gone precluding case has so an insur- any alleged sudden releasеs were proving er duty had no accidental, liability. to establish Hecla’s defend. ownership during peri- time Mere relevant liability.2 suffice to ods would establish

III.

II. approved Colorado has of the use of de- peril claratory brought by The facts of this case actions illustrate always determining duty an insurer’s insurer to determine insurer’s solely allegations prior defend based on the the trial of the underlying complaint. Troelstrup Court, Defense of ac- CERCLA action. Dist. Thus, 1986). can extremely costly. (Colo. tions In- In Troelstrup, P.2d 1010 we Indemnity filing dustrial took the said: step of determining expectedness, chance

2. The that facts insur- or accidental suddenness nature proved to defend would be in the alleged damages discharges ers’ would be de- underlying CERCLA action is further reduced termined CERCLA case. provisions by various of CERCLA which are designed specifically encourage settlements. Research, Boyce Thompson Inst. Plant Cf. Farbes, See, e.g., Findley R. & D. Environmental Inc., (“Coloring analysis F.Supp. at 1144 our ("[S]ection 122(a) directs Law [regarding denial of insured’s motion for practicable public and in the inter- '[w]hen-ever est,’ summary respect judgment with to the insurer’s agreements sought in settlement should be discovery the fact that defend] [has expedite order superfund effective remedial actions Thus, evidence which concluded]. could litigation. sites and to minimize Sec- questions respect resolve these to the [with in 122(e) procedural tion designed includes a new element very emerge could defend] surer’s well among agreements to facilitate PRPs. now that the issues near future have been prepare It ing preliminary for the President to 'non-bind- calls focused.”). Kepner, See also 109 Ariz. responsibility’ allocation of (one looking 509 P.2d rationale for (NBAR), allocating percentages total re- of the beyond PRPs, to deter sponse among costs at a site after mine an insurer’s to defend is that "the completion investigation of a 'remedial and fea- ’’). sibility study.' a notice serves function and is The fact that the statute is discovery proceedings designed crystalize to foster settlements reduces further framed before intent, case.") added). (emphasis the chance that a determination of facts of approved has also of factual Colorado dispute that insurance beyond It is declaratory judg- determinations such declara- right to seek a company has the 13-51-113 of the actions. Section a ment rights and duties under tion of its Declaratory Judgment provides as fol- Act of Resolution policy of insurance.... declaratory lows: in the the issue as framed in a of result determination action will in- proceeding When a under this article in- duty to defend insurer’s] [the [the the of an issue of volves determination underlying action. The ... sured] fact, may and such issue be tried deter- of this “is existence or nonexistence in same manner as issues of mined the invok- ground sufficient for proper a in determined other facts are tried and under the of the courts ing jurisdiction in in which the civil actions the act, judgment declaratory the pending. proceeding is controversy.” justiciable presents Baumgartner Schey, v. 143 also Colо. (citations 1012 Troelstrup, 712 P.2d at (authoriz- 373, 378, (1960) 353 P.2d 377 omitted). have held that We also disputed questions ing jury trial of the trial court’s discretion

not an abuse declaratory judgment proceedings fact in delay declaratory judgment action on to declaratory in re- “the which where action indemnify and defend an insurer’s duties to at sought have been an action lief is ac- underlying of the until after the trial to permitted it been mature with- law had Court, Group v. Dist. Ins. tion. Hartford declaratory proce- out the intervention (Colo.1981). 625 P.2d 1018 dure.”).4 Declaratory Judgment Colorado’s contemplates Act that contracts will thus Troelstrup Ins. In both and Hartford light interpreted in of facts determin- be Group, emphasized the discretion we Corp. McDonald’s the time. able at respect declaratory trial court with Cf. McDonald’s, Inc., Rocky Mountain Troelstrup, 712 P.2d at judgment actions. (1979) P.2d Colo.App. Group, 625 P.2d at 1012; Ins. Hartford Declaratory Judg- (“Although the Uniform court in Hart- addition, the trial 1016. 57(e) provide that ments Law and C.R.C.P. Group, Ins. approved we of the where ford prior may interpreted a contract be declaratory until delay proceeding inapplicable breach, provisions action, these underlying found trial of the after requires interpreta- dispute underlying action where pleadings that the facts which are not light tion in of extrinsic “clearly to defend.” indicate[d] determinable.”) omitted) (em- (citation Group, yet Ins. P.2d at 1016. Hartford added). in Troelstrup phasis Finally, it is settled Colo- pointed in Conversely, we out for party where a moves sum- of the al- rado that “the nature and character mary declaratory judgment in a complain- leged giving rise to facts [the determining scope of cover- proceeding a reasonable ... case ant’s] established] party “the age policy, an insurance conduct under that the tortious likelihood summary judgment moving for has excluded from cover- insured] [was] [the demonstrating ‘clearly the ab- Troelstrup, 712 P.2d at Fi- burden age.” any genuine issue of fact’ order compared preju- sence of nally, in both cases we Mut. v. State Farm prevail.” O’Herron including respective parties, dice to the Co., 156 Colo. 164, 172, Ins. 397 P.2d the Auto. defending the insured in burden on Boyce Thompson (1964). See also declaratory action on issue Research, Inc., Plant Institute defending insurer in the burden on the Troelstrup, (“[Insured’s] motion for F.Supp. at 1144 712 P.2d underlying claim. Group, respect to insur- Ins. 1012-13; summary judgment 625 P.2d [with Hartford as must denied er’s at 1016-17. defend] ("Moreover, Troelstrup, beyond 712 P.2d at 1012 looked 4. We also pleadings produced subsequent complaint support approval to the our of the use of arguably underlying complain- prior supported proceeding [the actions.”). underlying Troelstrup. ant’s] trial of the action may question because a ex- the insurers seek premature factual reimbursement resolve.”). discovery underlying their costs after the may further defense ists which By requiring action is resolved.5 an insur- IV. subject provide (although er to the defense declaratory pro- duration of cost reimbursement), we ensure in- that the ceedings determine an insurer’s provid- sured does not bear burden of cases, vary greatly. defend can In some ing its The insured will own defense. also dictate facts be forced reimburse insurer cases, In other clear results. resolution unless the can costs of the defense insurer potential less clear. The burden and the prove that insured’s out- the conduct was parties determining the prejudice the to policy. scope comports side the of the This before or after duty to defend resolution expectations the with of both reasonable claim between underlying vary the also will case, insurer. In insured and the Thus, in view of the trial court’s cases. example, expect could not reasonably Hecla to de- respect substantial discretion with provided to with a to be defense intentional actions, permit I claratory judgment would clearly poli- conduct that falls outside the the trial to decide in this case wheth- court cy’s coverage. currently proceed to dis- er with further addition, placed In the burden the on covery necessary find facts to resolve to defending against potential insured in post- to the insurers’ duties to defend or seeking claim the insurer reimburse- declaratory pone judg- of the resolution underlying ment for defense costs after the until after claim underlying ment action the than the action is much less the burden on is resolved. required the insured to insured where is making determination, the trial In such a prior duty insurer’s to establish the weigh prejudices the court can relative underlying of the The resolution action. burdens the insured and the insurers. parties have the benefit of further will of a If the trial court finds that resolution and, cases, discovery, pleadings, some to the declaratory prior action findings, they trial records on which unduly preju- action underlying would not help determine rely can factual issues insured, may the trial order dice the court duty to The re- relating to the defend. declaratory resolution of immediate the necessary litigate the sources issue hand, if judgment action. On the other the duty the after the resolution to defend the de- litigating trial court concludes that may claim re- underlying the therefore be claratory judgment proceeding prior to the that, greatly. likely duced It also is after underlying overly prejudice action would claim, underlying in- of the the resolution insured, either cost and the because of the in a sured and insurers will be involved litigation, the of con- duration of out regarding action declaratory judgment action, estoppel in underlying cerns of duty indemnify.6 The issue insurer’s may postpone the trial court resolution re- the insurer’s defend can be after action until declaratory proceeding. same solved in the underlying proceeding is resolved. Thus, much less of a it is burden on that, litigate hold insured to the issue of an insurer’s I also would event after un- postpone duty trial decided to resolution of to defend resolution of the declaratory while liti- proceeding, derlying simultaneously the insurers action required gating indemnify with a provide Hecla the issue be litigate than underlying defense of action it is to but majority "[a]ny [In- holds in this action that determination of whether Industrial Because defend, demnity] have a insurers or New have insurers indemnify premature, appаrently cannot for the seek reimbursement and should defending underlying re- they incur in the un- claims are costs Hecla in be made until derlying Maj. op. action. solved.” at 1086 n. 5. CERCLA likely 6. This most Will be the situation present majority correctly The case. holds to resolu- prior action separate in a

issue LUSTGARDEN, underlying action. tion Ira D. Petitioner-Appellant, v. V. Director, KAUTZKY, Executive Walter majority can by the reached result Corrections; Department Colorado rigidly ad- expected a court too where Woodard, Attorney General and Duane determining an insur- heres to the rule of Colorado, Respondents- the State of on the defend based er’s Appellees. complaint regardless of underlying GRENEMYER, Reed Dennis type asserted in of claim Petitioner-Appellant, in the de- conduct complaint, the insured’s proceeding, or who claratory judgment my summary judgment. moved GUNTER, Respondent-Appellee. Frank however, unfairly preju- this result opinion, 90SA500, 91SA25. Nos. tac- and rewards evasive dices insurers Colorado, Supreme court order trial Court tics the insured. summary judg- En Banc. motion for granting Hecla’s should be reversed. ment May decide, remand, ‍​‌​​​‌‌‌‌​‌​​‌​​​​​‌‌​‌‌‌​​​​‌​‌‌‌‌‌‌‌​​‌​​​​​‌​‍can the trial court On Rehearing in 91SA25 Denied discretion, proceed its within 3, 1991. June can make discovery the trial court with so necessary findings to decide the factual In- Hampshire and Industrial

whether New or, defend, in demnity have alternative, declaratory judg- hold the respect to the insur- proceeding

ment with until the abeyance ers’ duties to defend In the latter underlying claim is resolved. situation, require the insurers to I would under- a defense in the provide Hecla with lying subject reimbursement action the insurers’ duties pending resolution fol- declaratory proceeding to defend in a underlying claim.7 lowing resolution respectfully dissent. Accordingly, I KIRSHBAUM, J., ROVIRA, C.J., and join this dissent. City, pro Lustgarden,

Ira David Canon se. Gen., Norton, Atty. Raymond T. A.

Gale Gen., Deputy Timo- Slaughter, Atty. Chief Gen., Farley, Tymkovich, M. Paul thy Sol. Lizza, Gen., Deputy Atty. August John conduct defense is not allow the insurers to would be 7. The issue of whether insurers requiring of interest them this issue to involved in a conflict before us. I would therefore leave counsel, possibly provide independent the trial court to resolve. choosing, consent or to obtain Hecla's

Case Details

Case Name: Hecla Mining Co. v. New Hampshire Insurance Co.

Court Name: Supreme Court of Colorado

Date Published: May 13, 1991

Citation: 811 P.2d 1083

Docket Number: 89SC646

Court Abbreviation: Colo.