Higgins, Hopkins, McLain & Roswell

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David McLain is a founding member of Higgins, Hopkins, McLain & Roswell.  Mr. McLain has over 22 years of experience and is well known for his work in the defense of the construction industry, particularly in the area of construction defect litigation. He is a member of the Executive Committee of the CLM Claims College – School of Construction, which is the premier course for insurance, industry, and legal professionals. Law Week Colorado recently named…
On June 24, 2019, the Colorado Supreme Court held that when a contract or insurance policy requires an “impartial” appraisal, the appraiser for a party cannot be an advocate for that party.[1]  In this situation, the appraiser must be unbiased, disinterested, without prejudice, and unswayed by personal interest.  Id. Owners Insurance Company (“Owners”) issued a policy to the Dakota Station II Condominium Association, Inc. (“Association”) that represents a 49-building multifamily residential property in…
On February 7th, Representative Garnett, with Senator Fenberg as the Senate sponsor, introduced HB 20-1290, concerning the ability of an insurer to use a failure-to-cooperate defense in an action in which the insured has made a claim for insurance coverage. If the bill were to pass, in order to plead or prove a failure-to-cooperate defense in any action concerning first-party insurance benefits, the following conditions must be met: The carrier has submitted a written…
On Tuesday, February 18th, the Colorado House Business Affairs & Labor Committee voted 10-0 to postpone indefinetely House Bill 1046.  If it had been enacted, HB 1046 would have required, for all for all construction contracts of at least $150,000: A property owner to make partial payments to the contractor of any amount due under the contract at the end of each calendar month or as soon as practicable after the end of the month; A…
Here is a rundown of the latest goings on at the Colorado State Capitol: SB 20-138 – Concerning increased consumer protection for homeowners seeking relief for construction defects. Extend Colorado’s statute of repose for construction defects from 6+2 years to 10+2 years; Require tolling of the statute of repose until the claimant discovers not only the physical manifestation of a construction defect, but also its cause; and Permit statutory and equitable tolling of the statute…
NEWS RELEASE February 12, 2020 METRO AREA MAYORS URGE NO VOTE ON SB 93 AS WRITTEN Hancock: “Now is not the time to shift Colorado into reverse and undo the great work this General Assembly has done to promote attainable housing.” Denver, CO – Today, Denver area mayors joined the chorus of business organizations, housing advocates and community leaders opposing SB20-093. Denver Mayor Michael Hancock, Lone Tree Mayor Jackie Millet, Lakewood Mayor Adam Paul, Arvada…
On January 27th, Senator Robert Rodriguezintroduced SB 20-138 into the Colorado Legislature.  The bill has been assigned to the Senate Judiciary Committee and has not yet been scheduled for its first hearing in that committee.  In short, Senate Bill 20-138, if enacted, would: 1)      Extend Colorado’s statute of repose for construction defects from 6+2 years to 10+2 years; 2)      Require tolling of the statute of repose until the claimant discovers not only the physical…
By David M. McLain The 2020 Colorado legislative session started on Wednesday, January 8th.  It seems like there will be plenty of issues this year to which home builders will want to pay close attention.  On January 13th, Senators Fenberg, Foote, and Jackson sponsored SB 20-093, known as the “Consumer and Employee Dispute Resolution Fairness Act.”   For certain consumer and employment arbitrations, the act: Prohibits the waiver of standards for and challenges for evident partiality…
With increasing frequency in the construction defect cases we defend, we are seeing commercial general liability insurance policies with “subcontractor warranty” endorsements.  Also known as contractor or subcontractor special conditions, these endorsements could have severe and negative consequences for builders that do not comply with their requirements.  In researching for this article, I reviewed six different endorsements used by six different carriers, all of which contained some or all of the following requirements: The builder must have…