1 Opinions of the Colorado Supreme Court are available to the
2 public and can be accessed through the Judicial Branch’s homepage at
3 http://www.courts.state.co.us. Opinions are also posted on the
4 Colorado Bar Association’s homepage at http://www.cobar.org.
5
6 ADVANCE SHEET HEADNOTE
7 June 27, 2016
8
9 2016 CO 53
0
1 No. 15SC87, Pinnacol Assurance v. Hoff—Workers’ Compensation Insurance—
2 Promissory Estoppel—Certificates of Insurance—Notice of Cancellation.
3
4 In this case, the supreme court considers whether an insurer had a contractual or
5 statutory obligation to notify a non-insured holder of a certificate of insurance when the
6 insurance policy evidenced by the certificate was cancelled. Because the certificate said
7 notice of cancellation “will be delivered in accordance with the policy provisions” and
8 the insurance policy did not promise notice to certificate holders, the supreme court
9 concludes that the insurer had no contractual obligation to provide notice of
0 cancellation to the certificate holder. The supreme court further concludes that no
1 provision or public policy contained in the Workers’ Compensation Act required the
2 insurer to provide such notice either. Therefore, the supreme court reverses the
3 judgment of the court of appeals.
4
1
2 The Supreme Court of the State of Colorado
3 2 East 14th Avenue • Denver, Colorado 80203
4 2016 CO 53
5 Supreme Court Case No. 15SC87
6 Certiorari to the Colorado Court of Appeals
7 Court of Appeals Case No. 13CA1798
8 Petitioner:
9 Pinnacol Assurance,
0 v.
1 Respondents:
2 Norma Patricia Hoff; Hernan Hernandez; Alliance Construction & Restoration, Inc.; MDR
3 Roofing, Inc.; and Industrial Claim Appeals Office of the State of Colorado.
4 Judgment Reversed
5 en banc
6 June 27, 2016
7 Attorneys for Petitioner:
8 Pinnacol Assurance
9 Harvey D. Flewelling
0 Denver, Colorado
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2 Attorneys for Respondent Norma Patricia Hoff:
3 Scott A. Meiklejohn, LLC
4 Scott A. Meiklejohn
5 Denver, Colorado
6
7 Worstell & Associates
8 David Worstell
9 Thomas J. Connell
0 Denver, Colorado
1
2 Attorneys for Amici Curiae American Insurance Association and Property Casualty
3 Insurers Association of America:
4 White and Steele, PC
5 John Lebsack
6 Denver, Colorado
1 No appearance by or on behalf of Hernan Hernandez; Alliance Construction &
2 Restoration, Inc.; MDR Roofing, Inc.; and Industrial Claim Appeals Office of the
3 State of Colorado.
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0 JUSTICE HOOD delivered the Opinion of the Court.
1 JUSTICE GABRIEL concurs.
2 JUSTICE COATS dissents, and CHIEF JUSTICE RICE and JUSTICE EID join in the
3 dissent.
2
¶1 In this workers’ compensation insurance case, we consider whether an insurer
had a legal obligation to notify a non-insured holder of a certificate of insurance when
the insurance policy evidenced by the certificate was cancelled. Based on the certificate
at issue here and the relevant statute, we conclude that the insurer had no such
obligation. We therefore reverse the court of appeals’ judgment to the contrary.
I. Facts
¶2 Norma Hoff owns a house that she rents out through a property management
agency. When the roof of the house sustained hail damage, Hoff and her husband
contracted with Alliance Construction & Restoration, Inc. (“Alliance”) to repair it.
Without Hoff’s knowledge, Alliance subcontracted the roofing job to MDR Roofing, Inc.
(“MDR”). MDR employed Hernan Hernandez as a roofer.
¶3 While working on Hoff’s roof, Hernandez fell from a ladder and suffered serious
injuries. He sought medical and temporary total disability benefits for these
work-related injuries, but MDR’s insurer, Pinnacol Assurance (“Pinnacol”), denied the
claim because MDR’s insurance coverage had lapsed. Neither Hoff nor Alliance had
workers’ compensation insurance. Hernandez then brought an action under the
Workers’ Compensation Act (“WCA” or “the Act”), §§ 8-40-101 to 8-47-209, 8-55-101
to -105, C.R.S. (2015), seeking benefits against MDR, Alliance, Hoff, and Pinnacol.
¶4 The facts relevant to this claim are best summarized chronologically.
¶5 In July 2010, MDR applied for workers’ compensation insurance from Pinnacol
through Pinnacol’s agent, Bradley Insurance Agency (“Bradley”). Shortly thereafter,
Pinnacol issued a policy to MDR.
3
¶6 In October 2010, before starting the roofing job on Hoff’s property, Alliance
obtained from Bradley a certificate of insurance1 which verified that MDR had a
workers’ compensation insurance policy in effect from July 9, 2010, to July 1, 2011.
¶7 On February 10, 2011, Pinnacol informed MDR by certified letter that MDR’s
insurance policy would be cancelled if Pinnacol did not receive payment of a past-due
premium by March 2, 2011. Pinnacol also mailed a copy of this letter to Bradley.
Alliance was not notified of the pending cancellation.
¶8 MDR did not pay the past-due premium, and the policy was therefore cancelled
effective March 3, 2011. Pinnacol sent letters to MDR and Bradley advising them of the
cancellation, but it did not send a letter to Alliance.
¶9 One week later, on March 10, 2011, Hernandez’s injuries occurred.
¶10 On March 11, 2011, MDR’s owner went to Bradley’s office and asked to reinstate
the policy. Bradley personnel informed MDR’s owner that the policy could be
reinstated only if the owner paid the outstanding premium, paid a reinstatement fee,
and signed a “no-loss” letter, which is a statement by an insured certifying that no
injuries have occurred since the insured’s policy was cancelled. MDR’s owner made the
necessary payments and, although he knew Hernandez had been injured since the
policy’s cancellation, signed and submitted the no-loss letter. He did not inform
Bradley of Hernandez’s accident. That same day, upon receiving the payments and
1This certificate is attached as an appendix (“Appendix”) to this opinion. A certificate
of insurance is “[a] document acknowledging that an insurance policy has been written,
and setting forth in general terms what the policy covers.” Certificate of Insurance,
Black’s Law Dictionary (10th ed. 2014).
4
no-loss letter, Pinnacol reinstated MDR’s policy retroactively to the March 3
cancellation date.
¶11 On March 16, 2011, MDR’s owner returned to Bradley’s office to report
Hernandez’s March 10 injuries. Bradley contacted Pinnacol to advise it of the claim.
Pinnacol contested the claim on coverage grounds and later cancelled the policy.
II. Procedural History
¶12 After conducting a hearing on Hernandez’s workers’ compensation claim, an
administrative law judge (“ALJ”) determined that Pinnacol’s March 3 cancellation of
MDR’s insurance policy was proper. The ALJ further determined that MDR’s owner’s
failure to disclose Hernandez’s injuries when he signed the no-loss letter was a material
misrepresentation that rendered void the March 11 reinstatement of the policy. As a
result, MDR had no workers’ compensation coverage on March 10—the day of
Hernandez’s injuries—and Pinnacol could not be held liable on the claim.
¶13 The ALJ also concluded that, in addition to MDR, who was Hernandez’s direct
employer, Hoff and Alliance were Hernandez’s statutory employers under sections
8-41-402 and 8-41-401 of the WCA, respectively. Finding that none of these three parties
had a workers’ compensation insurance policy in effect on March 10, 2011, the ALJ held
them jointly liable for Hernandez’s benefits.
¶14 On appeal to the Industrial Claim Appeals Office (“ICAO” or “the Panel”), Hoff
argued that, under the doctrine of promissory estoppel, Pinnacol should be barred from
denying coverage because the certificate of insurance required Pinnacol to notify
Alliance that MDR’s policy was being cancelled, she and Alliance relied on the
5
certificate as proof that MDR had insurance, and Pinnacol failed to notify Alliance of the
policy’s cancellation. The Panel rejected this argument and affirmed the ALJ’s order.
¶15 Hoff then appealed the Panel’s order to the court of appeals,2 again asserting a
claim of promissory estoppel. In Hoff v. Industrial Claim Appeals Office, 2014 COA
137M, __ P.3d __, a division of the court of appeals reversed, with each of the division’s
three judges writing separately. Although the division unanimously rejected the
Panel’s promissory estoppel analysis,3 id. at ¶¶ 28–30; id. at ¶ 46 (Casebolt, J.,
concurring in part and dissenting in part); id. at ¶ 69 (Berger, J., concurring in part and
dissenting in part), it disagreed as to how the estoppel claim should be resolved.
¶16 The majority (Judges Dailey and Berger) held that the certificate required
Pinnacol to notify Alliance if MDR’s insurance policy was cancelled and that any
contrary disclaimer language4 in the certificate was void; accordingly, this notice
obligation satisfied the “promise” element of Hoff’s promissory estoppel claim as a
2 Neither Alliance nor MDR joined in this appeal or filed an appeal of its own.
3 The court also was unanimous in determining that Hoff had standing to bring a claim
for promissory estoppel. Hoff, ¶¶ 2 & n.1, 14–24. The issue of Hoff’s standing is not
before us, and we therefore do not address it further.
4 The following statement appears at the top of the certificate:
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
HOLDER. THIS CERTIFICATE DOES NOT . . . AMEND, EXTEND OR
ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS
CERTIFICATE . . . DOES NOT CONSTITUTE A CONTRACT BETWEEN
THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR
PRODUCER, AND THE CERTIFICATE HOLDER.
See Appendix. Later, the certificate also states: “THE INSURANCE AFFORDED BY
THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.” See id.
6
matter of law. See id. at ¶¶ 2, 31–43 (majority opinion); id. at ¶ 70 (Berger, J., concurring
in part and dissenting in part). Judge Casebolt dissented from this holding, instead
finding that the certificate was ambiguous and that “the kind and nature of the
promises and disclaimers contained in the certificate present[ed] factual issues that the
ALJ should first decide” on remand. See id. at ¶ 51 (Casebolt, J., concurring in part and
dissenting in part).
¶17 The majority (Judges Dailey and Casebolt) also held, however, that the question
of whether the other elements of promissory estoppel were satisfied was a factual issue
best resolved by the ALJ in the first instance and that remand was therefore necessary.
Id. at ¶¶ 2, 44 (majority opinion); id. at ¶ 46 (Casebolt, J., concurring in part and
dissenting in part). Judge Berger dissented from this holding. In his view, the facts
relevant to all elements of Hoff’s promissory estoppel claim were undisputed, and the
court therefore should have resolved the claim as a matter of law. Id. at ¶¶ 68–69
(Berger, J., concurring in part and dissenting in part). Applying the law to the facts,
Judge Berger would have held that Pinnacol was estopped from denying coverage for
Hernandez’s benefits. See id. at ¶¶ 69–76.
¶18 We granted Pinnacol’s petition for certiorari.5
5 We granted certiorari to review the following issues:
1. Whether the court of appeals erred in holding, contrary to Broderick
Inv. Co. v. Strand Nordstrom, 794 P.2d 264 (Colo. App. 1990), and
decisions by the Industrial Claim Appeal Office (ICAO) which follow
Broderick, that a certificate of insurance evidencing the issuance of a
workers’ compensation insurance policy required the insurer to inform
the certificate holder of the cancellation of the policy, where the
certificate states that notice of cancellation “will be delivered in
7
III. Analysis
¶19 We begin our analysis by addressing the appropriate standard of review and
rejecting Pinnacol’s contention that we should defer to the ICAO’s interpretation of the
WCA. We then turn to Hoff’s promissory estoppel claim and, after summarizing the
applicable law, examine whether the court of appeals properly determined that the
initial, promise element of Hoff’s claim was established as a matter of law.
¶20 In doing so, we first consider the court of appeals’ determination that the
certificate of insurance promised that the insurer, Pinnacol, would notify the certificate
holder, Alliance, of policy cancellation. We conclude that the unambiguous language of
the certificate contains no such promise.
¶21 Next, we consider the court of appeals’ holding that public policy expressed in
sections 8-41-402 and 8-41-404 of the WCA required it to construe the certificate as
promising notice to Alliance. We conclude that nothing in the WCA supports imposing
such a promise either.
¶22 Pinnacol was therefore under no obligation to notify Alliance of policy
cancellation. Because Pinnacol did not promise to provide such notice, Hoff’s
accordance with the policy provisions,” and the policy only requires
the insurer to provide notice of cancellation to the policy holder.
2. Whether the court of appeals erred in interpreting section 8-41-404,
C.R.S. (2014), to create a public policy mandate that invalidates the
“disclaimers and exculpatory language” in a certificate of insurance to
require that notice of cancellation of a policy be provided to certificate
holders where section 8-44-110, C.R.S. (2014), does not require such
notice and the certificate of insurance form containing such language
was approved by the commissioner of insurance pursuant to section
8-44-102, C.R.S. (2013).
8
promissory estoppel claim fails for lack of a necessary element. Accordingly, we
reverse the judgment of the court of appeals.
A. Standard of Review
¶23 Pinnacol argues the court of appeals erred in not deferring to the ICAO’s
interpretation of the WCA. Because the ICAO has not rendered a decision addressing
the precise issues before us here, we disagree that deference is owed.
¶24 Judicial review of the Panel’s disposition of a workers’ compensation claim is
governed by the WCA. See Fulton v. King Soopers, 823 P.2d 709, 712–13 (Colo. 1992).
Section 8-43-307 allows dissatisfied parties to appeal a Panel order to the court of
appeals, see § 8-43-307(1), and several subsequent sections circumscribe the nature and
scope of that court’s review, see §§ 8-43-308 to -310. Section 8-43-313, in turn, allows a
still-dissatisfied party to seek review of the court of appeals’ decision in this court. If
we grant review, our inquiry is limited “to a summary review of questions of law.”
§ 8-43-313. In evaluating a Panel order under these provisions, appellate courts defer to
the agency’s factual findings but review its conclusions of law de novo. See City of
Brighton v. Rodriguez, 2014 CO 7, ¶¶ 11–12, 318 P.3d 496, 501; Kieckhafer v. Indus.
Claim Appeals Office, 2012 COA 124, ¶¶ 8, 12, 284 P.3d 202, 205–06.
¶25 So, the presumptive standard of review is de novo for the questions of law
central to this case—i.e., the proper construction of the certificate, the insurance policy,
and certain provisions of the WCA. See Specialty Rests. Corp. v. Nelson, 231 P.3d 393,
397 (Colo. 2010) (“Statutory construction is a question of law . . . .”); Meier v. Denver
9
U.S. Nat’l Bank, 431 P.2d 1019, 1021 (Colo. 1967) (“The construction of a written
instrument [is] a question of law . . . .”).
¶26 But, as Pinnacol points out, this typically unfettered review is sometimes
restricted when it comes to interpreting provisions of the WCA. Although appellate
courts ultimately are not bound by the Panel’s legal interpretations, see Rodriguez, ¶ 12,
318 P.3d at 501, or by its earlier decisions, Kieckhafer, ¶ 8, 284 P.3d at 205, courts
nonetheless traditionally give deference to the Panel’s reasonable interpretations of
WCA provisions, see Specialty Rests., 231 P.3d at 397; Kieckhafer, ¶ 8, 284 P.3d at 205.
¶27 Pinnacol seizes on this deference principle, claiming that the court of appeals’
prior decision in Broderick Investment Co. v. Strand Nordstrom Stailey Parker, Inc.,
794 P.2d 264, 266 (Colo. App. 1990), set forth a rule that certificates of insurance create
no rights for a certificate holder and that, although Broderick did not involve workers’
compensation, the ICAO has long applied this rule in the workers’ compensation
context. As support, Pinnacol cites four prior ICAO decisions, in addition to the Panel’s
decision here, and asserts these decisions “implicitly interpret the Act as not creating
any contractual duty for the benefit of a certificate holder where, as here, the certificate
is specifically limited to an informational document only which is subject to the terms of
the policy.” Accordingly, Pinnacol argues the ICAO has interpreted the WCA as not
requiring notice to certificate holders, and the court of appeals erred in failing to accord
deference to this interpretation.
¶28 None of these ICAO decisions, however, interpreted the statutory provisions on
which the court of appeals relied in this case. The ICAO did not examine whether
10
public policy underlying sections 8-41-402 and 8-41-404 of the WCA required insurers
to notify certificate holders about policy cancellations and rendered void any
disclaimers that would prevent certificates from serving their intended purpose under
the Act.
¶29 In fact, three of the four prior decisions, as well as the decision below, merely
applied Broderick as controlling precedent without tying that case or its purported rule
to any WCA provision at all. See Hernandez v. MDR Roofing, Inc., W.C. No. 4-850-627-
03, 2013 WL 858028, at *4 (Colo. ICAO Feb. 27, 2013); Lopez-Najera v. Black Roofing,
Inc., W.C. No. 4-565-863, 2004 WL 2107582, at *3 (Colo. ICAO Sept. 13, 2004); Gomez v.
Gonzales, W.C. Nos. 4-447-171 & 4-449-330, 2004 WL 348737, at *8 (Colo. ICAO Feb. 18,
2004); Wilson v. H & S Constr., W.C. No. 4-472-849, 2002 WL 2018806, at *3 (Colo. ICAO
Aug. 30, 2002). And the other prior decision squared Broderick with a statutory
provision extraneous to the court of appeals’ analysis here. See Suttles v. Sherman,
W.C. No. 4-308-510, 1997 WL 730627, at *4–6 (Colo. ICAO Oct. 31, 1997) (citing
§ 8-45-112, C.R.S. (1997)). It neither interpreted sections 8-41-402 and 8-41-404 nor
considered what those provisions require of insurers vis-à-vis certificate holders. Id.
¶30 Thus, Pinnacol’s argument suffers from the false premise that the ICAO has
rendered an interpretation of the WCA provisions central to the case at hand. In other
words, there is no interpretation to which we or the court of appeals could defer. We
therefore apply traditional de novo review.
11
B. Promissory Estoppel Does Not Apply Because
There Was No Promise
¶31 We now turn to Hoff’s claim that Pinnacol is estopped from denying coverage
for Hernandez’s workers’ compensation benefits. In order to place the issues on which
we granted certiorari in context, we first briefly summarize the law of promissory
estoppel. We then consider whether there is a promise here, based on the certificate of
insurance or the WCA. We conclude there is not.
1. Promissory Estoppel Generally
¶32 Promissory estoppel is a quasi-contractual cause of action that, under certain
circumstances, provides a remedy for a party who relied on a promise made by another
party, even though the promise was not contained in an enforceable contract. See
Wheat Ridge Urban Renewal Auth. v. Cornerstone Grp. XXII, L.L.C., 176 P.3d 737, 741
(Colo. 2007). A claim for promissory estoppel consists of four elements: (1) a promise;
(2) that the promisor reasonably should have expected would induce action or
forbearance by the promisee or a third party; (3) on which the promisee or third party
reasonably and detrimentally relied; and (4) that must be enforced in order to prevent
injustice. See, e.g., Cherokee Metro. Dist. v. Simpson, 148 P.3d 142, 151 (Colo. 2006).
Where these elements are present, a promise becomes binding and may be enforced
through the normal remedies available under contract law. Bd. of Cty. Comm’rs v.
DeLozier, 917 P.2d 714, 716 (Colo. 1996).
¶33 Here, the court of appeals concluded that Hoff qualified as a third party
beneficiary of the alleged promise made to Alliance and thus could bring a claim based
12
on that alleged promise. Hoff, ¶¶ 2 & n.1, 22–24. The court also concluded that,
although Bradley issued the certificate, Bradley was acting as Pinnacol’s agent when it
did so and therefore was an entity legally indistinguishable from Pinnacol for purposes
of analyzing Hoff’s claim. See id. at ¶¶ 29 & n.5, 38 n.6. Pinnacol does not challenge
these conclusions, and we accept them as true for purposes of this appeal.
¶34 In addition, the court of appeals majority declined to decide whether Hoff had
established all the elements of a claim for promissory estoppel. Id. at ¶¶ 2, 44. Rather,
as to all but the promise element, the majority determined that factual issues remained
and therefore remanded the case to the ALJ to address those issues in the first instance.
See id. at ¶¶ 2 & nn.2–3, 44. Pinnacol does not challenge this remand decision either.
Instead, Pinnacol focuses only on the court’s disposition of the promise element.
¶35 The question for us, then, is whether the court of appeals properly determined
that the promise element of Hoff’s claim was satisfied as a matter of law. We turn to
that question now.
2. Application
¶36 Based on both the language of the certificate’s cancellation provision and
perceived public policy underlying certain provisions of the WCA, the majority below
construed the certificate as promising that Pinnacol would notify Alliance if MDR’s
workers’ compensation policy was cancelled. See id. at ¶¶ 2, 31–43. The majority also
concluded that the same public policy considerations voided the certificate’s
disclaimers. See id. at ¶¶ 31, 39–43.
13
¶37 We disagree. Considering each of the majority’s dual rationales in turn, we
conclude that Pinnacol was under no obligation to notify Alliance of policy cancellation.
We also find it unnecessary to address the validity of the certificate’s disclaimers.6 Even
assuming that, despite the disclaimers, the certificate could have contained enforceable
promises, we still would conclude that a promise to give notice of policy cancellation to
Alliance was not one of them. It follows that, regardless of the disclaimers’ validity,
Hoff’s promissory estoppel claim fails for lack of a promise.
a. Nothing in the Language of the Certificate Promised
Notice to Alliance
¶38 The certificate’s notice provision is unambiguous, and it did not promise notice
to Alliance.
¶39 In construing a document, we look to its terms and apply them as written unless
they are ambiguous. See USI Props. E., Inc. v. Simpson, 938 P.2d 168, 173 (Colo. 1997).
To determine whether an ambiguity exists, we ask whether the document’s plain
6 As a result, we need not consider the broader issue of the legal status of certificates of
insurance that contain such disclaimers, or the parties’ related contentions concerning
Broderick, 794 P.2d 264. We note that courts in other jurisdictions have reached
divergent conclusions on the question of whether—and if so, under what
circumstances—such certificates can give rise to legal rights, compare, e.g., Criterion
Leasing Grp. v. Gulf Coast Plastering & Drywall, 582 So.2d 799, 800–01 (Fla. Dist. Ct.
App. 1991) (per curiam) (certificate gave rise to legal rights), Bucon, Inc. v. Pa. Mfg.
Ass’n Ins. Co., 547 N.Y.S.2d 925, 927 (N.Y. App. Div. 1989) (same), and Marlin v. Wetzel
Cty. Bd. of Educ., 569 S.E.2d 462, 469–73 (W. Va. 2002) (same), with T.H.E. Ins. Co. v.
City of Alton, 227 F.3d 802, 805–06 (7th Cir. 2000) (certificate did not give rise to legal
rights), W. Am. Ins. Co. v. Meridian Mut. Ins. Co., 583 N.W.2d 548, 550–51 (Mich. Ct.
App. 1998) (per curiam) (same), and Bradley Real Estate Tr. v. Plummer & Rowe Ins.
Agency, Inc., 609 A.2d 1233, 1234–35 (N.H. 1992) (same), and that Broderick belongs to
the latter camp, see 794 P.2d at 265–67. We have not yet weighed in on this larger
question, and because this case does not require it, we decline to do so today.
14
language “is reasonably susceptible on its face to more than one interpretation.” See
Allen v. Pacheco, 71 P.3d 375, 378 (Colo. 2003). If the document is unambiguous, we
will “neither rewrite [it] nor limit its effect by a strained construction.” Id.
¶40 The certificate here lists MDR as the “insured” and Pinnacol as an “insurer
affording coverage.” See Appendix. Below this information, and within a box entitled
“coverages,” the certificate lists two types of insurance policies: “general liability” and
“workers compensation and employers liability.” Id. Several details, such as the policy
number and dates of coverage, are included for each of the policies. Id. Further below
still, and within a box entitled “certificate holder,” the certificate lists Alliance. Id.
Finally, in a separate, adjacent box entitled “cancellation,” the certificate includes the
statement central to this case:
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE
CANCELLED BEFORE THE EXPIRATION THEREOF, NOTICE WILL BE
DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.
Id.
¶41 We conclude this language is reasonably subject to only one interpretation and is
therefore unambiguous. In its first clause, the provision refers to the cancellation of
“ANY OF THE ABOVE DESCRIBED POLICIES.” This language clearly refers to the
general liability and workers’ compensation liability policies referenced within the
“coverages” box on the certificate. In its second clause, the provision states that, if one
of those policies is cancelled, “NOTICE WILL BE DELIVERED IN ACCORDANCE
WITH THE POLICY PROVISIONS.” Beginning at the end, “the policy,” when read
15
together with the first clause, refers to whichever of the two above-referenced policies
has been cancelled, and “provisions” refers to the provisions of that policy.
¶42 This leaves us with the word “notice.” Again, we find no ambiguity. Aside
from specifying that policy cancellation is the event for which notice will be given, the
language of the cancellation provision leaves the word “notice” unqualified. Thus,
while we agree with the majority’s observation that “[t]he cancellation provision does
not specify to whom notice of cancellation must be given by Pinnacol,” Hoff, ¶ 35, we
conclude that the parties consigned the entire question of notice, including to whom it
must be given, to the provisions of the policy being cancelled.
¶43 Unlike the court of appeals, we do not believe that, “because Pinnacol was
already required, by the terms of the policy, to give notice of termination to MDR,” our
construction fails to “give reasonable meaning to . . . the certificate.” See id. at ¶ 37.
This reasoning simply begs the question: to conclude that the certificate duplicates a
notice obligation contained in the policy, one must necessarily assume that the
certificate imposes a notice obligation that exists independent of the policy to begin
with. We reject the premise and thus reject the conclusion. Likewise, we discern no
tacit meaning from the proximity of the box identifying Alliance as the certificate holder
to the box containing the cancellation provision.
¶44 Looking to the two “above described” policies available, the one whose
cancellation is at issue in this case is MDR’s workers’ compensation policy. The
relevant provisions of that policy, in turn, oblige Pinnacol to give notice of cancellation
to MDR and stipulate that such notice must comply with certain timing and delivery
16
specifications. Nothing in these provisions states that notice will be provided to anyone
other than MDR.
¶45 Because the plain language of the certificate promises only that notice will be
delivered in accordance with the provisions of MDR’s insurance policy, and because the
provisions of that policy contain no promise to give notice to certificate holders, we
conclude that Pinnacol was under no contractual obligation to notify Alliance when it
cancelled MDR’s policy.
¶46 We next consider whether, as the court of appeals majority determined, the WCA
requires us to impose such an obligation anyway.
b. Nothing in the WCA Requires Insurers to Provide Notice of
Policy Cancellation to Certificate Holders
¶47 No provision or public policy contained in the WCA required Pinnacol to notify
Alliance if MDR’s insurance policy was cancelled.
¶48 Our primary task in construing a statute is to effectuate the intent and purpose of
the legislature. See Pulsifer v. Pueblo Prof’l Contractors, Inc., 161 P.3d 656, 658 (Colo.
2007). “We determine legislative intent primarily from the plain language of the
statute.” Id. We also look to statutory language to determine whether public policy
affects our construction of an insurance provision. See Bailey v. Lincoln Gen. Ins. Co.,
255 P.3d 1039, 1045 (Colo. 2011); see also Rocky Mountain Hosp. & Med. Serv. v.
Mariani, 916 P.2d 519, 525 (Colo. 1996) (“Statutes by their nature are the most
reasonable and common sources for defining public policy.”). In interpreting the WCA,
we construe its language “so as to give effect and meaning to all its parts.” Pulsifer,
17
161 P.3d at 658. If the statutory language is clear, we apply it as written. See Specialty
Rests., 231 P.3d at 397. We construe the legislature’s failure to include particular
language not as an oversight, but as a deliberate omission reflecting legislative intent.
See id.
¶49 Applying these principles here, we note first that no WCA provision expressly
requires that an insurer provide notice to certificate holders when the underlying
insurance policy is cancelled. The only WCA provision that addresses notice of
cancellation—section 8-44-110—states that a carrier of workers’ compensation insurance
“shall notify any employer insured by the carrier . . . and any agent or representative of
such employer, if applicable, by certified mail of any cancellation of such employer’s
insurance coverage.” § 8-44-110. The provision does not mention certificates of
insurance or certificate holders. Id.
¶50 The ALJ determined, the Panel agreed, and Hoff essentially concedes that the
terms of section 8-44-110 required only that Pinnacol notify MDR and Bradley when it
cancelled MDR’s policy, and that Pinnacol did so. Hoff does not contend that Alliance
was an “employer insured by the carrier,” and for good reason. Even if the term
“employer” as used in section 8-44-110 included statutory employers like Alliance,
neither applicable law nor the certificate rendered Alliance an “insured” for purposes of
that section: Alliance never contracted with Pinnacol for insurance coverage, and
neither Hoff nor the court of appeals goes so far as to assert that the certificate itself
amounted to an insurance policy or contract of insurance. Cf. Certificate of Insurance,
18
Black’s Law Dictionary (10th ed. 2014) (stating that a certificate of insurance is “a
document acknowledging that an insurance policy has been written”).
¶51 Nonetheless, the majority below looked to other provisions of the WCA—
namely, sections 8-41-402 and 8-41-404—and concluded based on these provisions that,
“by legislative mandate, certificates of insurance play a critical role in the workers’
compensation system” and that this role “would be wholly undermined if . . . notices of
termination need not be provided to certificate holders.” Hoff, ¶ 40. Consequently, the
majority reasoned that “Colorado’s public policy, as described in the Act, requires that
courts give effect to the reasonable meaning and purpose of certificates,” which, to the
majority, meant that it “must . . . construe the certificate as requiring notice to the
certificate holder of termination of coverage.” Id. at ¶ 41.
¶52 We respectfully disagree. Examining sections 8-41-402 and 8-41-404 in the
context of the WCA’s insurance and liability scheme, we find nothing that warrants
imposing the notice requirement that the court of appeals imposed here. A brief
journey through these provisions bears this out.
¶53 The “comprehensive insurance scheme” set forth in the WCA is designed to
protect injured workers by ensuring the quick and efficient payment of benefits. See
Kelly v. Mile Hi Single Ply, Inc., 890 P.2d 1161, 1163 (Colo. 1995); see also § 8-40-102(1).
To that end, any “employer” subject to the Act must “secure compensation for all
employees” by maintaining workers’ compensation insurance. § 8-44-101(1)(a)–(d).
The WCA embraces a broad conception of the term “employer,” see Finlay v. Storage
Tech. Corp., 764 P.2d 62, 64 (Colo. 1988); see also § 8-40-203 (defining “employer”), and
19
“contains several provisions rendering certain entities who are not ‘direct’ employers of
injured persons ‘statutory employers’ within the meaning of the Act,” Krol v. CF&I
Steel, 2013 COA 32, ¶ 25, 307 P.3d 1116, 1121.
¶54 Section 8-41-402 is one of these provisions. Section 8-41-402 governs repairs to
real property and states that every owner of real property who contracts out work done
on that property to “any contractor, subcontractor, or person who hires or uses
employees in the doing of such work shall be deemed to be an employer under the
[WCA].” § 8-41-402(1). Hoff is Hernandez’s statutory employer under this provision.
¶55 Section 8-41-402(1) further provides that such owner-employers “shall be liable”
for workers’ compensation claims resulting from work-related injuries on their property
and “shall insure and keep insured all liability” for workers’ compensation imposed
under the Act. Id. To offset this financial responsibility, subsection (1) gives such
owner-employers the affirmative right to recover the cost of workers’ compensation
insurance from the “contractor, subcontractor, or person” that they hire. Id.7
¶56 But, as the majority recognized, see Hoff, ¶ 40, section 8-41-402(2) imposes a
conditional limitation on such owner-employers’ obligation to pay compensation
benefits. Specifically, it provides that, if the “contractor, subcontractor, or person doing
7 It is worth noting that this subsection also says the WCA does not apply to “the owner
or occupant, or both, of residential real property which meets the definition of a
‘qualified residence’ under [the Internal Revenue Code], who contracts out any work
done to the property . . . .” § 8-41-402(1). The applicable section of the Code, in turn,
defines “qualified residence” as including a taxpayer’s principal residence. See
26 U.S.C. § 163(h)(4)(A)(i)(I) (2012). Thus, the qualified-residence exception effectively
shields an ordinary homeowner from workers’ compensation liability arising from
work done to the home in which he or she lives. This exception does not apply here
because Hoff uses the house where Hernandez’s injuries occurred as a rental property.
20
or undertaking to do any work for an [owner-employer] . . . is also an employer in the
doing of such work and . . . insures and keeps insured all liability for compensation,”
then “neither said contractor, subcontractor, or person nor any employees or insurers
thereof shall have any right of contribution or action of any kind” against the owner-
employer. § 8-41-402(2) (emphases added).
¶57 Separately, section 8-41-404 addresses workers’ compensation insurance in the
specific context of construction work. Section 8-41-404 states in part that “a person who
contracts for the performance of construction work on a construction site shall either
provide . . . workers’ compensation coverage for, or require proof of workers’
compensation coverage from, every person with whom he or she has a direct contract to
perform construction work on the construction site.” § 8-41-404(1)(a) (emphases
added). Hoff is “a person who contracts for the performance of construction work on a
construction site” for purposes of this provision. See § 8-41-404(5)(a)–(b) (providing
broad definitions of “construction site,” in paragraph (a), and “construction work,” in
paragraph (b), that encompass the roofing work done at Hoff’s rental house).8 Critical
to the majority’s decision here, the provision defines “proof of workers’ compensation
coverage” as including a certificate of insurance. See § 8-41-404(5)(c).
8 Like section 8-41-402, section 8-41-404 includes a “qualified residence” exception and
therefore does not apply to a homeowner contracting to have work done to the home in
which he or she lives. See § 8-41-404(1)(a), (4)(a)(I). But, as noted above, Hoff does not
qualify for this exception. Moreover, section 8-41-404 also does not apply to an owner
of real property who hires someone “specifically to do routine repair and maintenance”
on that property. § 8-41-404(4)(a)(II). Here, the ALJ found that this exception does not
apply to Hoff because the roof repair job was not “routine.” Hoff does not challenge
this determination, and we therefore accept it for purposes of this appeal.
21
¶58 Unlike section 8-41-402, section 8-41-404 does not render the persons to whom it
applies statutory employers or impose liability for injured workers’ benefits. Compare
§ 8-41-402(1), with § 8-41-404. Rather, persons who fail to provide or obtain proof of
insurance as required by section 8-41-404 may be subjected to the administrative fine
provisions of section 8-43-409(1)(b) of the WCA. See § 8-41-404(3) (“A violation of
subsection (1) of this section is punishable by an administrative fine imposed pursuant
to section 8-43-409(1)(b).”).9
¶59 Reading sections 8-41-402 and 8-41-404 together, the majority below determined
that “the Act specifically recognizes certificates of insurance as a mechanism to protect
an owner from precisely the types of liabilities [i.e., liability for workers’ compensation
benefits] imposed on Hoff in this case.” Hoff, ¶ 42 (citing §§ 8-41-402, 8-41-404(5)(c)).
But we see nothing in the Act that supports this statement.
¶60 Sections 8-41-402 and 8-41-404, though related, impose separate and distinct
liabilities: the former imposes liability for workers’ compensation benefits, § 8-41-402(1),
and the latter imposes liability for administrative fines, § 8-41-404(3). It is only within
the framework of section 8-41-404, however, that the legislature has carved out a role
for certificates of insurance. As noted above, section 8-41-404 requires that the persons
to whom it applies either provide, or obtain proof of, workers’ compensation insurance,
see § 8-41-404(1)(a), and specifies that a certificate qualifies as such proof, see
9 Section 8-43-409(1)(b) imposes fines of either a maximum of $250, for an initial
violation, or a minimum of $250 and a maximum of $500, for any subsequent violation,
“[f]or every day that the employer fails or has failed to insure or to keep the insurance
required by [the WCA].” See § 8-43-409(1)(b)(I)–(II).
22
§ 8-41-404(5)(c). It then immunizes persons who obtain proof of insurance from liability
under its administrative fine provision. See § 8-41-404(1)(c).
¶61 By contrast, section 8-41-402 does not mention certificates or any other proof of
insurance. Unlike section 8-41-404, section 8-41-402 does not offer the entities to which
it applies the option of obtaining proof of insurance in lieu of supplying insurance. See
§ 8-41-402(1). Nor does it provide any safe harbor equivalent to section 8-41-404(1)(c).
See § 8-41-402. Although it does immunize an owner-employer from contribution and
other lawsuits when the entity it employs is insured “and keeps insured,” § 8-41-402(2)
(emphasis added), nothing in the statute indicates that this other insurance negates the
owner-employer’s independent obligation to secure insurance for itself or that any
proof of this other insurance can insulate the owner-employer from liability in the event
the other insurance lapses, see § 8-41-402.10
10 Although this interpretation could, in theory, lead some owner-employers to
conclude that their safest bet would be to secure workers’ compensation insurance of
their own, we do not see such a result as inevitable. For example, an owner-employer
might instead choose to be more proactive in verifying that the coverage identified in a
certificate remains in effect on the date work is to be performed. This the owner-
employer can do with no trouble at all: at the legislature’s behest, the Division of
Workers’ Compensation has created a searchable online database through which
anyone can confirm that a given employer has insurance in effect on the date the search
is conducted. See Colo. Dep’t of Labor & Emp’t, Insurance Coverage,
https://perma.cc/6FUK-RK22; see also § 8-47-111(2) (“[T]he division shall develop a
procedure for verifying whether or not all employers doing business in . . . Colorado
comply with the [insurance] requirements of [the WCA].”). And even where an owner-
employer opts to acquire insurance, section 8-41-402 expressly allows it to recover the
cost of that insurance from the entity it hires. See § 8-41-402(1). Moreover, to the extent
there may be circumstances in which both the owner-employer and its hired entity
obtain insurance, we note that this consequence fully comports with the fundamental
goal of the WCA: “to assure the quick and efficient delivery of . . . benefits to injured
workers at a reasonable cost to employers, without the necessity of any
23
¶62 Thus, contrary to the court of appeals’ conclusion, nothing in section 8-41-402 or
section 8-41-404 states, or even suggests, that the legislature intended for certificates of
insurance to shield owner-employers from liability for workers’ compensation benefits.
Because the clear language of these provisions, including the absence, in section
8-41-402, of any exception to an owner-employer’s statutory obligations, refutes the
majority’s interpretation of them, we reject that interpretation. See Specialty Rests.,
231 P.3d at 397.
¶63 Moreover, the role certificates play within section 8-41-404 is not undermined if
insurers of the policies evidenced by the certificates do not notify certificate holders in
the event those policies are cancelled. Section 8-41-404(1)(c) provides that, if a person
who must secure or require proof of workers’ compensation insurance under section
8-41-404(1)(a) “exercises due diligence by . . . requiring proof of workers’ compensation
insurance as required by this section,” then that person “shall not be liable” for the
administrative fines imposed under section 8-41-404(3). § 8-41-404(1)(c). By its terms,
this safe-harbor provision requires only that a person exercise due diligence by
obtaining a certificate. See id. Nothing in the provision ties the availability of its
litigation.” § 8-40-102(1). Not only does encouraging both statutory and direct
employers to maintain coverage more adequately protect injured workers, it also
ensures that those employers receive the primary benefit that the WCA is designed to
give them—namely, immunity from common-law tort liability. See Curtiss v. GSX
Corp. of Colo., 774 P.2d 873, 874–75 (Colo. 1989). Indeed, the legislature has expressly
declared its belief that “it is in the best interests of the public to assure that all
employers who fall under the provisions of [the WCA] have in effect current policies of
insurance or self-insurance for workers’ compensation liability.” § 8-47-111(1)
(emphasis added).
24
protections to the continued validity of the insurance policy underlying that certificate.
Id.
¶64 In sum, we disagree with the majority below regarding the role certificates play
under the WCA and find no support for its conclusion that “Colorado’s public policy,
as described in the Act,” required it to construe the certificate here as mandating notice
of policy cancellation to the certificate holder. Because no provision of the Act expressly
imposes this requirement either, we conclude that the WCA did not require Pinnacol to
notify Alliance when it cancelled MDR’s policy.
¶65 Requiring notice to all certificate holders may be sensible, but it is not our place
to legislate what we perceive as a more sensible result. We cannot simply rewrite the
statute. See Dove Valley Bus. Park Assocs., Ltd. v. Bd. of Cty. Comm’rs, 945 P.2d 395,
403 (Colo. 1997).
* * *
¶66 Pinnacol was under no obligation to notify Alliance in the event MDR’s workers’
compensation insurance policy was cancelled. Because Pinnacol did not promise to
provide notice, Hoff cannot establish the initial, promise element of her promissory
estoppel claim, and her claim must fail. The court of appeals erred in concluding
otherwise.
IV. Conclusion
¶67 Neither the terms of the certificate of insurance nor any provision or public
policy contained in the WCA required Pinnacol to notify Alliance in the event MDR’s
insurance policy was cancelled. Pinnacol therefore did not “promise” to provide such
25
notice, and Hoff’s claim for promissory estoppel must fail for lack of the requisite
promise element. For these reasons, we reverse the judgment of the court of appeals.
JUSTICE GABRIEL concurs.
JUSTICE COATS dissents, and CHIEF JUSTICE RICE and JUSTICE EID join in the
dissent.
26
APPENDIX
1
JUSTICE GABRIEL, concurring.
¶68 Because I believe that the majority has correctly set forth the applicable law and
has reached the result dictated by that law, I concur in the majority’s opinion. I write
separately, however, to express my view that the result that I believe the law dictates
here is arguably inequitable and warrants legislative action to clarify the purpose and
effect of a certificate of insurance, as well as the rights and obligations of those who
provide and those who obtain such certificates.
I. Applicable Statutes
¶69 Like the majority, see maj. op. ¶¶ 47–64, I cannot say that the applicable statutes
impose a duty on insurers to give notice of a policy’s cancellation to certificate holders.
¶70 Section 8-44-110, C.R.S. (2015), requires every insurance carrier authorized to
transact business in Colorado, including Pinnacol Assurance, to notify “any employer
insured by the carrier or Pinnacol Assurance, and any agent or representative of such
employer, if applicable, by certified mail of any cancellation of such employer’s
insurance coverage.” I see nothing in the applicable definitions of “employer” to
suggest to me that the term “employer” as used in this section includes a statutory
employer like Hoff here. See § 8-40-203, C.R.S. (2015) (defining the term “employer” for
purposes of the Workers’ Compensation Act (the “Act”)); see also § 8-40-302, C.R.S.
(2015) (delineating the scope of the term “employer” under the Act).
¶71 Even if the term “employer” as used in section 8-44-110 did include statutory
employers, however, neither applicable law nor the certificate of insurance at issue
renders such an employer an “insured” for purposes of that section. The certificate of
1
insurance is not itself an insurance policy or contract of insurance. Rather, it is “[a]
document acknowledging that an insurance policy has been written, and setting forth in
general terms what the policy covers.” Certificate of Insurance, Black’s Law Dictionary
(10th ed. 2014).
¶72 Accordingly, in my view, the applicable statutes did not require that notice of
cancellation be provided to the certificate holder in this case.
¶73 I am not persuaded otherwise by section 8-41-404, C.R.S. (2015). Subject to
certain exceptions not pertinent here, section 8-41-404(1)(a) requires a person who
contracts for the performance of construction work on a construction site either to
provide workers’ compensation coverage for, or to require proof of workers’
compensation coverage from, every person with whom he or she has directly contracted
to perform the construction work. Section 8-41-404(1)(c) then provides that any person
who contracts for the performance of such work and who exercises due diligence by
either providing workers’ compensation coverage or requiring proof of such coverage
from every person with whom he or she has a direct contract “shall not be liable under
subsection (3) of this section.” Section 8-41-404(3), in turn, provides for an
administrative fine for violating subsection (1).
¶74 I see nothing in section 8-41-404 that renders a certificate holder an insured for
purposes of the Act generally or section 8-44-110 in particular. To the contrary, section
8-41-404, on its face, makes clear that a certificate constitutes proof that someone else
has obtained workers’ compensation coverage.
2
¶75 Notwithstanding the foregoing, I acknowledge that section 8-41-404 suggests the
importance of certificates of insurance in this context, particularly given that those who
contract for the performance of construction work often rely on such certificates and on
the insurance coverage reflected thereon. As a result, it may well be sound public
policy to require insurers to provide notice of an insurance policy’s cancellation to those
holding certificates of insurance concerning the subject insurance policy. Such a public
policy decision, however, is for the legislature and not the courts to make.
¶76 Accordingly, I would respectfully encourage our General Assembly to consider
the public policies implicated by this case, particularly with respect to the purpose and
effect of a certificate of insurance and the rights and obligations of those who provide
and those who obtain such certificates.
II. Certificate of Insurance
¶77 Having determined that the applicable statutes did not require that notice of
cancellation be provided to the certificate holder in this case, I must next consider
whether the certificate itself required such notice. This question, in turn, requires me to
assess first whether the disclaimers and exculpatory language contained in the
certificate are void as against public policy and second whether the certificate is
ambiguous.
¶78 The certificate at issue contains a disclaimer that states:
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR
NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE
AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF
3
INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE
ISSUING INSURER(S)’ AUTHORIZED REPRESENTATIVE OR
PRODUCER AND THE CERTIFICATE HOLDER.
¶79 The certificate further states, “NOTWITHSTANDING ANY REQUIREMENT,
TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH
RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE
INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO
ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.”
¶80 Because I perceive nothing in the applicable statutes that imposes a duty on
insurers to give notice of a policy’s cancellation to certificate holders, I cannot say that
those statutes render the above-quoted provisions, which merely explain the limits of
the certificate, void as against public policy. Accordingly, I proceed to address whether
the certificate at issue is ambiguous.
¶81 Whether a written contract is ambiguous is a question of law that we review de
novo. Pub. Serv. Co. v. Meadow Island Ditch Co., 132 P.3d 333, 339 (Colo. 2006). “A
contract is ambiguous when it is reasonably susceptible to more than one meaning.” Id.
¶82 To determine whether a contractual provision is ambiguous, we examine the
provision’s language and construe that language in harmony with the plain and
generally accepted meaning of the words employed. Ad Two, Inc. v. City & Cty. of
Denver, 9 P.3d 373, 376 (Colo. 2000). We may also consider “extrinsic evidence
regarding the meaning of the written terms, including evidence of local usage and of
the circumstances surrounding the making of the contract,” but in determining whether
4
a contract term is ambiguous, we may not consider “the parties’ extrinsic expressions of
intent.” Pub. Serv. Co., 132 P.3d at 339.
¶83 Here, Hoff contends that the certificate is ambiguous because the language
concerning the notice of cancellation is encompassed in a box including the identity of
the certificate holder. She argues that the clear import of the location and language of
the notice provision is that it is a message to the certificate holder directly. Her
argument may be correct insofar as it goes, but it does not establish any ambiguity as to
whether and when notice to the certificate holder is required, which is the issue before
us.
¶84 Specifically, although I agree with Hoff that the juxtaposition of the identity of
the certificate holder with the notice provision suggests that the notice referred to is
notice due the certificate holder, nothing in the juxtaposition of these provisions
suggests to me that notice must always be given to the certificate holder. To the
contrary, the notice provision states that notice will be delivered “in accordance with
the policy provisions,” and Hoff does not suggest any ambiguity as to the meaning of
that phrase.
¶85 Accordingly, Hoff has not established that the certificate at issue is ambiguous.
III. Conclusion
¶86 For these reasons, I respectfully concur in the majority’s opinion and the
judgment of the court.
5
JUSTICE COATS, dissenting.
¶87 Because I disagree with the majority’s construction of the controlling statutes and
would, instead, largely affirm the judgment of the court of appeals, I respectfully
dissent. Quite apart from the outcome of this particular case, however, I fear that the
majority’s myopic, and at various points in the analysis questionable, construction is
likely to have unintended, and substantially deleterious, consequences for the
protection of both workers and employers. I write separately, therefore, to identify
what I consider to be the central flaw in the majority’s reasoning and to emphasize the
magnitude of its departure from the underlying philosophy of the workers’
compensation scheme.
¶88 Unlike the majority, I believe the court of appeals was entirely correct in its
assessment that “[t]he Act expressly contemplates that a person or entity in the chain of
contract or work on a construction contract may obtain a certificate of workers’
compensation insurance to protect itself from the types of liabilities at issue here.”
However, unlike the court of appeals, which clearly considered its hands tied by our
half-century-old opinion in Chevron Oil Co. v. Industrial Commission, 456 P.2d 735
(Colo. 1969), and the structuring of Hoff’s assignment of error to circumvent its
subsequent interpretation by other panels of that court, and therefore felt compelled to
articulate its holding in a roundabout way, in terms of a combination of promissory
estoppel principles and the public policy expressed in the Act, I believe this court
should cut through the circuity and simply hold that the certificate issued by Pinnacol
made Alliance an insured employer within the contemplation of section 8-44-110, C.R.S.
1
(2015), and that Pinnacol’s failure to provide notice to Alliance as required by that
statute therefore resulted in Pinnacol’s continued coverage of the injured worker. I
think it a relatively straightforward task to distinguish Chevron, which concerned a
dispute among three different insurance companies over which would be liable to
compensate for a worker’s death and, as relevant here, merely stood for two peripheral
propositions: first, that an administrative rule of the Industrial Commission could not
modify the statutory scheme by adding a requirement to give prior notice of a
cancellation to the Commission itself, and second, that in any event, the insurer was not
a proper party to complain about non-compliance with that administrative rule, the
purpose of which was for the protection of the claimant entitled to compensation. In
light of its subsequent broad interpretation by the intermediate appellate court, see First
Comp Ins. v. Indus. Claim Appeals Office, 252 P.3d 1221 (Colo. App. 2011), I consider it
the duty of this court to clarify this holding of Chevron by express limitation.
¶89 As an aside, I applaud the majority for concluding, at least with regard to the
workers’ compensation statutes at issue here, that this court is not limited by any prior
interpretation of the ICAO. I consider it counterproductive, however, to continue to
mouth, as does the majority, confusing (if not deceptive) language to the effect that
“courts nonetheless traditionally give deference to the Panel’s reasonable
interpretations of WCA provisions.” Maj. op. ¶ 26. While no great harm can come of
our showing deference, in the sense of a respectful consideration for the Commission’s
views, deference to the Panel’s “reasonable interpretations” of WCA provisions implies
actual acceptance of the Commission’s choice among multiple reasonable
2
interpretations of ambiguous WCA statutes, more in the vein of modern federal
administrative jurisprudence. See generally John H. Reese, Bursting the Chevron
Bubble: Clarifying the Scope of Judicial Review in Troubled Times, 73 Fordham L. Rev.
1103 (2004). As we have indicated elsewhere, we have never adopted the federal
administrative model, and it remains the obligation of the judiciary to interpret the
statutes of this jurisdiction. Mile High Cab, Inc. v. Colo. Pub. Utilities Comm'n, 2013
CO 26, ¶ 12, 302 P.3d 241, 245–46.
¶90 The court of appeals’ emphasis on the role given by the General Assembly to
certificates of insurance in the workers’ compensation scheme derives not only from the
Act’s specific provision for such certificates in the context of construction work but,
more generally, from the fundamental compromise upon which workers’ compensation
was predicated. The statutory scheme was designed to grant an injured employee
compensation from his or her employer without regard to negligence, and in return, the
responsible employer would be granted immunity from common-law negligence
liability. Frank M. Hall & Co. v. Newsom, 125 P.3d 444, 446 (Colo. 2005) (citing Finlay
v. Storage Tech. Corp., 764 P.2d 62, 63 (Colo. 1988)). Our statutory scheme has also long
provided an extra layer of protection for the employees of subcontractors by imposing,
with some exceptions, employer liability not only on the subcontractors by whom these
employees are directly employed, but also on the property owners or companies
contracting out work to those subcontractors. Id. (citing San Isabel Elec. Ass'n, Inc. v.
Bramer, 510 P.2d 438, 440 (Colo. 1973)). The central mechanism through which this
3
swift and certain compensation would become possible was to be statutorily required
insurance, covering the liability statutorily imposed on each of these employers.
¶91 The scheme therefore imposes a duty on such “statutory employers” to insure
and keep insured this broad statutorily created liability, permitting them even to
recover the costs of such insurance from their subcontracting employers. By the same
token, however, the scheme makes clear that neither subcontractors with employees of
their own, who maintain insurance coverage for their employees as required by statute,
nor their employees themselves have a right of contribution against their statutory
employers. Unless the scheme intends the enrichment of workers’ compensation
carriers by requiring that premiums be paid by statutory employers, notwithstanding
existing adequate coverage by their subcontracting employers, and forcing
subcontracting employers to bear not only the cost of their own coverage but also that
of their statutory employers, it necessarily contemplates some means of establishing
definitively whether the liability of persons or entities contracting or subcontracting
with statutory employers remains adequately covered.
¶92 With regard to construction work in particular, where the phenomenon of
subcontracting employers is virtually universal, the statutory scheme actually imposes
an administrative fine upon any person who contracts for the performance of
construction work and fails to either provide coverage himself or require proof of
coverage by every person with whom he has a direct contract. Because the statute
expressly exonerates from this administrative fine any person who contracts for the
performance of construction work and requires proof of coverage by those with whom
4
he directly contracts, the majority concludes that proof of coverage has significance only
in the context of administrative fines and plays no broader role with regard to the
liability of statutory employers. By contrast, I believe proof of coverage provided by an
insurance carrier to a statutory employer—a company or property owner who would be
liable for injury or death to the employees of its contractors or subcontractors but for
adequate coverage by those entities themselves—actually defines the scope of the
carrier’s statutory obligation to provide notice before cancelling an insurance policy
upon which that statutory employer’s liability is contingent.
¶93 Because the effectiveness of the Workers Compensation Act depends on the
maintenance of adequate insurance coverage against the liability of employers for
injuries to their employees, the statute requires notice to “any employer insured by the
carrier or Pinnacol Assurance” before it will be permitted to cancel that employer’s
coverage. See § 8-44-110. The majority accepts without reflection that in order to be an
“employer insured by the carrier,” an employer must actually be in privity of contract
with the carrier, but this gloss is certainly not implied by the term “insured” itself, and
there is every reason to believe it was not intended by the legislature. The statutory
phrase “any employer insured by” clearly refers to any employer whose liability for
injury to his employees is insured against, rather than simply an employer who has
insured his personal well-being. Where the statutory scheme creates multiple levels of
liability, in the form of statutorily designated employers, all of whose liability for
subcontractor employee injury is statutorily insured against by the policy of any
subcontracting employer, the better reading of the phrase “any employer insured by the
5
carrier or Pinnacol Assurance” includes all of those statutory employers to whom the
insurer has certified coverage against their statutorily imposed liability.
¶94 Apart from the majority’s failure to give any serious consideration to the
meaning of the notice of cancellation provision, much less to examine it in light of the
policy expressed by the scheme as a whole, I believe the majority’s cramped reading of
the role that certificates or other proof of insurance play in the workers’ compensation
scheme derives in part from its misunderstanding of the relationship between sections
8-41-402 and 404, C.R.S. (2015). Sections 401 and 402 treat of persons, companies, or
corporations that lease or contract out any part of the work of their business, or that
own any real property or improvements thereon and contract out any work done on
that property. Section 404 deals with contracting for a particular kind of work—work
on construction sites. Because a person who contracts for the performance of
construction work on a construction site can (and almost certainly will) be a person,
company, or corporation governed by section 401 or 402, the majority’s suggestion that
the administrative fine imposed by section 404 is somehow unrelated to the liability
imposed on statutory employers by section 402 is not simply too mechanical, but in fact
untenable.
¶95 From section 404’s provision for a fine in the construction site context, and its
express exoneration from that fine upon obtaining proof of coverage by a direct
employer, the majority concludes not only that proof of coverage serves no purpose
other than the exoneration of an employer from administrative fines, but also that the
statutory scheme intends for separate coverage to be required of statutory employers,
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even in the face of proof of adequate existing coverage by the direct employer. Not only
does this interpretation (or more accurately imputation) imply a legislative intent to
bestow a windfall on insurance carriers, in the form of double premiums for single
coverage, but in addition, it effectively thwarts the fundamental goal of the scheme—to
ensure coverage for all injured employees, in lieu of obliging them to seek recovery
from uninsured employers. To construe the phrase in section 8-44-110, “shall notify any
employer insured by the carrier or Pinnacol Assurance,” as including every employer to
whom the insurer has provided proof that the employer’s statutory liability is insured
against, would guarantee that each such statutory employer is given an opportunity to
exercise its statutory right to renew coverage and pass on the cost, if it chooses, to the
contractor, subcontractor, or person with whom it contracts.
¶96 Because our opinion in Chevron actually involved the impact of an
administrative rule on the statutory scheme rather than construction of a cancellation
provision of the Act, first appearing in 1989, see ch. 69, sec. 1, § 8-44-114, 1989 Colo.
Sess. Laws 417, 418, I do not believe our holding in that case presents any impediment
to this construction. To the extent it could be read to adversely affect the standing of a
statutory employer to challenge the cancellation of a policy upon which its liability is
contingent, I would expressly limit or overturn it. To construe the Workers
Compensation Act so narrowly as to relieve Pinnacol of any obligation to notify
Alliance of its intent to cancel, after certifying to Alliance sufficient coverage to protect
it from claims of injury by its statutory employees, flies in the face of the fundamental
compromise upon which the Act was predicated. While I therefore agree with the court
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of appeals’ understanding of the policy supporting the Act, because I believe that in the
absence of notice to Alliance, the coverage by Pinnacol remained in existence, I see no
need for a remand concerning reliance by Hoff.
¶97 I therefore respectfully dissent.
I am authorized to state that CHIEF JUSTICE RICE and JUSTICE EID join in this
dissent.
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Pinnacol Assurance v. Hoff
Court: Supreme Court of Colorado
Date filed: 2016-06-27
Citations: 2016 CO 53, 375 P.3d 1214, 2016 Colo. LEXIS 678, 2016 WL 3574393
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