specially concurring.
I concur with my colleague in the majority that we must enforce insurance contracts as written, giving the words and phrases their plain and ordinary meaning; that the coverage was triggered; and that the judgment should be affirmed, the result he reaches. My colleagues feel they must either follow Browder v. United States Fidelity & Guaranty Co., 893 P.2d 132 (Colo.1995), as does my colleague in dissent; or distinguish it within the context of its analysis as does my colleague in the majority.
I write separately because, in my view, Browder should be limited to its unique facts and its analysis should not be applied to commercial general liability insurance coverages or, in the alternative, it should be revisited. While I can only suggest the latter, I feel compelled to do the former. I conclude that Browder has no application to this case.
In Browder, the insured constructed, operated, and then sold a motel to the plaintiffs. Apparently, during the later few months of the construction phase and then into the operation phase, the insured was insured under, among other policies, a special multi-peril insurance policy issued by the insurer.
The policy provided that the insurer would pay all sums the insured was obligated to pay for “property damage ... caused by an occurrence and arising out of the ownership, maintenance or use of the insured premises and all operations necessary or incidental to the business of the named insured conducted at or from the insured premises.” “Occurrence” was defined as “an accident,” which was defined as “including injurious exposure *301to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” Property damage meant “injury to or destruction of tangible property.” Browder, supra, 893 P.2d at 134. The policy also had an “owned property” exclusion which provided, “This insurance does not apply ... to property damage to property owned or occupied by or rented to the insured.” Browder, supra, 893 P.2d at 135.
The insurance policy expired by its own terms on the date of the transfer of the motel to the plaintiffs, and the policy was assigned by the insured to the plaintiffs at closing. Several years later, while the motel was owned by the plaintiffs, defects in the construction of the motel manifested themselves in the form of severe cracks in the structure. The plaintiffs sued the insured under a negligent construction theory for the damage to the motel and obtained judgment in the amount of $572,000.
The plaintiffs then sued the insurer on indemnification and assignment theories. The court characterized the plaintiffs’ claims on appeal as: “They did not sue [insurer] as insureds but sought recovery as injured third parties, claiming their losses were covered by the policy and that they became subrogated to [the insureds’] rights.” Browder, supra, 893 P.2d at 133.
Subrogation is defined as the substitution of “one person ... in the place of another with reference to a lawful claim, demand or right of the other in relation to the debt or claim, and its rights, remedies or securities.” See Browder, supra, 893 P.2d at 135 n. 4 (citing Black’s Law Dictionary 1427 (6th ed.1990)).
It is clear to me that the plaintiffs in Browder asserted a first-party claim for indemnification as subrogees of the insured. It appears to me that both the majority and concurring opinions treated the plaintiffs’ claim as a first-party property damage claim. The majority held that the plaintiffs could not recover under either of two theories, each of which was sufficient unto itself for denying coverage. Therefore, one is dictum. The majority stated:
We find the [plaintiffs] did not sustain actual damage to their property during the applicable policy period and therefore no insurance coverage was triggered under the ... policy. Even assuming that coverage exists under the policy, the [plaintiffs] cannot recover as subrogees due to the owned property exclusion which prevents [the insured] from maintaining any claim against [the insurer] to which the [plaintiffs] could be subrogated.
Browder, supra, 893 P.2d at 136.
Justice Erickson, in his concurring opinion, stated as much:
No claim has been made against [the insured] or [the plaintiffs] that any injuries occurred as a result of the ownership, maintenance, or use of the motel.
As the owner of the property, [the insured] could not have brought an action against [the insurer] under the ... policy. If the [plaintiffs] sued as [subrogees], they would only acquire the rights of [the insured]. The ... policy did not provide coverage to [the insured] for negligence in the construction of the building.
Browder, supra, 893 P.2d at 137 (Erickson, J., concurring).
Because (1) the language limits liability coverage to claims arising out. of the operation of a business on the insured premises; (2) the concurring opinion states that the policy covered a motel operation and did not cover the insured for negligence in construction of the motel; (3) the court of appeals stated in its opinion, see Browder v. U.S. Fid. & Cas. Co., 873 P.2d 16 (Colo.App.1993), that construction was completed in July 1975; and (4) the effective date of the policy was February 17, 1975, it is apparent to me that the policy covered a motel operation.
It is my opinion that the facts that the policy was a “special multi-risk insurance policy” covering a motel operation and not a “commercial general liability policy’ and that the plaintiffs were suing as subrogees make all the difference. The named insured could not have brought a construction defect claim under the policy because the policy did not insure against negligent construction and, in any event, the insured would be claiming *302damages to its property arising'froni its own negligence. Therefore, it was the'nature of the coverages and the subrogation that dictated the result in Browder. Based on these circumstances, Browder, in my view, haü no application here.
Here, we are dealing with a commercial general liability policy issued to a “contractor.” The policy (1) requires the insurer to “pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ ” “to which this insurance applies”, (2) provides that it applies to “bodily injury” and “property damage” that “is caused by an ‘occurrence’ that , takes place in the ‘coverage territory’ ... and occurs during the policy period”; and (3) defines “coverage territory” as the United States of America (including its territories and possessions), Puerto Rico, Canada, international waters and airspace (with limitations), and all parts of the world (with limitations). It lacks the language of limitation which appears in the Browder that the liability must arise out of the operation of a particular business on defined premises.
Here, the allegations of negligence relate to the design and installation of the footings, which occurred during the policy period. The parties have stipulated that (1) there was property damage to the homes; (2) the property damage resulted from an “occurrence”, (3) the “occurrence” was during the policy period; and (4) the property damage to the homes during the policy period was $200,000.
The only issue presented here is whether the current owners were required to own the homes during the policy period when both the occurrence and the damage’ occurred. This is not a first-pkrty property damage case. Here, the liability provisions are not limited to a particular business activity unrelated to the construction of the homes. That, in my view, is the end of the inquiry. In my view,-the insurer has stipulated itself into liability under'its policy.
I am aware that Browder has been applied to’ comprehensive general liability insurance policies' for its holding that the plaintiff must own the property during the policy period in order to recover on a negligence theory, or, at least, Browder has been cited for that proposition. See Hoang v. Monterra Homes (Powderhorn) LLC, 129 P.3d 1028 (Colo.App.2005) (cert. granted Mar. 20, 2006, 2006 WL 1586645); Globe Indem. Co. v. Travelers Indem. Co., 98 P.3d 971 (Colo.App.2004); Leprino v. Nationwide Prop. & Cas. Ins. Co., 89 P.3d 487 (Colo.App.2003); Union Pac. R.R. v. Certain Underwriters at Lloyd’s, London, 37 P.3d 524 (Colo.App.2001). For the reasons stated, I would not follow these eases, nor would I cite Browder for that proposition.
Finally, I find support for my position in what I view as .an incongruity in the majority opinion in Browder. The majority cited with approval Hoppy’s Oil Service, Inc. v. Insurance Co. of North America, 783 F.Supp. 1505 (D.Mass.1992), and rejected the analysis and conclusion reached in Trustees of Tufts University v. Commercial Union Insurance Co., 415 Mass. 844, 616 N.E.2d 68 (1993). Both construe and apply the law of the State of Massachusetts. In Hoppy’s, a federal court, without the benefit of any Massachusetts authority, construed and applied a special mul-ti-risk insurance policy and concluded, as did the majority in Browder, that the plaintiff must have owned the' property during the policy period in order to recover for damage to the property occurring during that period. Subsequently, in Trustees of Tufts University, the Supreme Judicial Court of Massachusetts, construed and applied a commercial general liability policy and declined to follow Hoppy’s. Therefore, dare I say it, I agree with the Supreme Judicial Court of Massachusetts that Hoppy’s and, ergo Browder, has no application here.
I join in affirming the judgment.