Beruflich Dokumente
Kultur Dokumente
SEP 22 2000
PATRICK FISHER
Clerk
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The nature of the malpractice claims and the relevant policy provisions are
described more fully in the discussion below.
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the judgment under Fed. R. Civ. P. 59(e). While the motion was pending, Coregis
filed its motion for 2202 relief. Both post-judgment motions, and others filed in
the interim, were denied by a written order issued March 19, 1999. These appeals
timely followed.
Discussion
A.
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Coregis summary judgment position, which the district court accepted, was
that the language of Exclusion E is unambiguous and that it necessarily excludes a
malpractice claim alleging as injury that the client suffered a loss in value of real
property. According to the opinion of a Colorado appellate court construing a
coverage provision of a general liability policy, the loss of use of tangible
property includes such property that has diminished in value or been made useless
irrespective of any physical injury to the property . . . . Hommel v. George, 802
P.2d 1156, 1158 (Colo. Ct. App. 1990). 2 The Healys two malpractice claims
concerned real estate agreements and conveyances that, allegedly due to DeCaros
negligence, failed to provide for ingress to and egress from certain tracts of land
owned by the Healys and failed to reserve or grant such easements as reasonably
necessary to provide ingress and egress from the Healys land. (Aplt. App. at
221, 223.) Both claims sought damages measured by the value of the easement,
and the reduction in the value of the [tracts] caused by the lack of ingress and
egress . . . . (Aplt. App. at 221-22, 223.) Therefore, in the view of Coregis and
the district court, Exclusion E plainly applies to the Healys claims under
Hommel. We reach a different conclusion.
We begin by noting Colorados rules for interpreting insurance policies:
not allege property damage as defined by the insurance policy. The definition
included loss of use of tangible property which has not been physically injured
or destroyed . . . . Id. at 1247. The court concluded, however, that the
purchasers claim only that the property which they bought was worth less than
they expected and that these alleged damages are not the equivalent to the loss
of use of tangible property. Id. at 1247.
Similarly, here, the damages alleged by the Healys are the value of a lost
easement and the concomitant reduction in the value of their land. This claim is
not one for a loss of use of tangible property for two reasons. First, an easement
is not tangible property. [T]angible property is that which is capable of being
handled, touched, or physically possessed. Lamar Truck Plaza, Inc. v. Sentry
Ins., 757 P.2d 1143, 1144 (Colo. Ct. App. 1988). In common parlance, an
easement is an interest in land owned by another that entitles its holder to a
specific limited use or enjoyment. Websters Ninth New Collegiate Dictionary
393 (1985). In other words, it is merely an intangible property right. DeCaros
alleged failure to obtain the desired easements for the Healys deprived them of
the use of someone elses land and not their own.
Second, the diminution in value of the Healys land allegedly caused by
DeCaros conduct does not constitute a loss of use of the land in the ordinary
sense of those words. Nowhere in the Healys third-party complaint do they
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allege that the lack of easements caused them to lose the use of their tracts of
land. Instead, the complaint merely seeks damages measured by a difference in
the value of the Healys land with and without the easements. This allegation of
economic injury does not compel a conclusion that there was a loss of use of
their land. Unlike Hommel, which opines that the phrase loss of use of tangible
property in a coverage provision should be broadly construed, the phrase here
appears in an exclusionary provision. A reasonable interpretation of an exclusion
requires a more restrictive reading, so that a mere diminution in value of property
would not rise to the level of a loss of use of it. To lose the use of tangible
property connotes an inability to employ or apply it or to enjoy the benefit of
using it. It does not connote a simple decrease in its monetary worth.
Therefore, we reject the district courts conclusion that Exclusion E plainly
applies to exclude the Healys malpractice claims against DeCaro from coverage
under Coregis insurance policy. For the reasons above stated, we conclude that
Coregis did not establish that its claimed exemption fits the particular facts
presented and that Exclusion E is not subject to any other reasonable
interpretation. Thus, Coregis was not entitled to summary judgment in its favor
or to a declaratory judgment that it had no duty to indemnify or defend DeCaro
from the Healys malpractice claims.
B.
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