Colorado Revised Statute Section 10-3-1118 – Insurance


United States:

Colorado Revised Statute Section 10-3-1118

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(May 2021) –  In the 2020 legislative
session, the Colorado General Assembly passed House Bill 20-1290.
The resulting statute, Colorado Revised Statute Section 10-3-1118,
went into effect on September 14, 2020. The new statute applies
to litigation  occurring on or after September
14, 2020, but arguably applies to the handling
of claims  arising before that date.

Section 10-3-1118 establishes specific requirements that an
insurer must meet in order to assert a failure to cooperate defense
in litigation.

1. Written Request for Information

The insurer must request information from the insured in writing
and provide the insured 60 days to respond. The written request
must be sent by certified mail or electronically if the insured
consented to receive electronic documents from the insurer.

2. Nature of the Information Requested

The insurer’s written request must be for information that
is not available to the insurer without the assistance of the
insured and that a “reasonable person would determine the
insurer needs to adjust the claim filed by the insured or to
prevent fraud.”

3. Written Notice of Failure to Cooperate and
Opportunity to Cure

Within 60 days after the insured’s failure to cooperate, the
insurer must provide written notice to the insured describing
“with particularity” the insured’s failure to
cooperate. The notice must provide the insured 60 days to cure.

Section 10-3-1118 applies to litigation “concerning an
insurance policy providing first-party benefits or
coverage…” The term “first-party benefits or
coverage” is not defined by the statute. However, similar
statutory language found in Sections 10-3-1115 and 10-3-1116 has
been interpreted to include benefits owed directly to an insured
under third-party liability policies (such as a duty to defend
under a Commercial General Liability policy).

Section 10-3-1118 limits the scope of a failure to cooperate
defense to “the portion of the claim materially and
substantially prejudiced to the extent the insurer could not
evaluate or pay that portion of the claim.” Thus, a failure to
cooperate does not necessarily provide a complete defense in
litigation.

Recognizing that the 60-day notice period and the 60-day
opportunity for the insured to cure may result in delays, Section
10-3-1118 specifically provides that an insurer is not liable for
bad faith as a result of delays caused by an insurer’s
compliance with the statutory notice and cure periods.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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