APPENDIX 23

• Jurisdiction: Colorado

APPENDIX 23

DISTRICT COURT, ANY COUNTY, COLORADO Any County Justice Center	▲ COURT USE ONLY ▲
Plaintiff-Judgment Creditor: THE KENT CONDOMINIUM ASSOCIATION, a Colorado nonprofit corporation Defendants-Judgment Debtors: JOHN DOE, individually; KENT DEVELOPMENT CORPORATION, a Colorado corporation; and PLACER INCORPORATED a/k/a PLACER DEVELOPMENT & CONSTRUCTION a/k/a PLACER REAL ESTATE, INCORPORATED a/k/a PLACER MANAGEMENT, INCORPORATED, a Colorado corporation. Garnishees: PROTECTION MUTUAL INSURANCE COMPANY, a Florida Corporation; BEST CONTRACTORS INS. CO. RISK RETENTION GROUP, LLC, a Michigan Limited Liability Company; and NATIONAL INSURANCE COMPANY, a Wyoming Corporation
	Case No. Div.:
Attorney for Plaintiff: Local Lawyer Local Lawyer, P.C.
PLAINTIFF'S VERIFIED TRAVERSE OF INSURERS' ANSWERS TO ALL WRITS OF GARNISHMENT

Plaintiff-Garnishor, The Kent Condominium Association (the "Association"), through its attorneys, Local Lawyer, P.C., hereby traverses the Answers filed by Garnishees, Protection Mutual Insurance Company ("Protection"), Best Contractors Ins. Co. Risk Retention Group, LLC ("Best"), and National Insurance Company ("National") (collectively the "Insurers") to the Writs of Garnishment served on them by the Association, and as grounds therefor, shows the Court the following:

STATEMENT OF FACTS

I. Procedural Posture.

On February 3, 2017, following a nine-day arbitration hearing, Hon. Joe Jones (Ret.) ("Judge Jones") issued an oral arbitration ruling on the record at an in-person hearing in favor of the Association and against Defendants-Judgment Debtors John Doe, Kent Development Corporation ("Kent Development"), and Placer Incorporated ("Placer") (collectively, "Defendants"), for claims arising from construction defects in the Kent Condominium community (the "Project").

Judge Jones followed his oral ruling with a written Arbiter's Partial Final Award issued March 1, 2017, nunc pro tunc to February 1, 2017. Based on the transcript of the February 1, 2017, oral ruling (attached hereto as Exhibit 3), on March 9, 2017, this Court confirmed and entered judgment in favor of the Association and against the Defendants. See Exhibit 1, March 9, 2017, Order Confirming and Entering Judgment on February 3, 2017, Arbitration Award. On March 18, 2017, this Court amended its previous order and entry of judgment by including the Arbiter's Partial Final Award in its Amended Judgment and Order Approving Arbiter's Partial Final Award Nunc Pro Tunc to February 1, 2017, and awarding the Association $3,950,460.00. See Exhibit 2.

In his above-described rulings and orders, Judge Jones found in the Association's favor and against Defendants on the Association's negligence and negligence per se (violation of building codes) claims, premised on Defendants' legal liability for the negligence of Placer and its subcontractors. Judge Jones also found in the Association's favor and against Kent Development on the Association's breach of implied warranty resulting in property damage claim, and found the Defendants jointly and severally liable for all damages awarded to the Association. See Exhibit 2, Amended Judgment and Order at 3-5. The Association served writs of garnishment upon the Insurers, who have answered the writs, denying any liability or obligation to the Defendants. Exhibit 4, Writs of Garnishment; Exhibit 5, Answers to Writs of Garnishment.

The Association anticipates that Judge Jones will issue a final award, and that such final award will: (1) modify the award, adding a stipulated $38,142.72 for window well and lateral force resistive system repair costs; (2) make final rulings on the Association's yet unresolved misrepresentation/nondisclosure and breach of fiduciary duty claims, including any damages; and (3) award the Association taxable costs, including any attorney fees. See Exhibit 2, Amended Judgment and Order at 3. The Association reserves the right, and intends, to amend the writs of garnishment (or file and serve additional writs of garnishment) and supplement this Traverse to seek all additional damages and taxable costs, including attorney fees, awarded as part of Judge Jones's anticipated final award and amended judgment.

II. Relevant Insurance Policies and Coverage Limits.

Protection Mutual Insurance Company. In the underlying arbitration, Defendants produced Exhibit 6, which is, upon information and belief, a true and correct copy of a commercial general liability ("CGL") policy issued by Protection to Placer, affording coverage for the policy period 05/22/02 to 03/23/03, and listing Kent as an additional insured.

National Insurance Company. Exhibits 7-9 are, upon information and belief, true and correct copies of three insurance policies issued by National to Placer, affording coverage for the policy periods 04/02/03 to 04/02/04, 04/02/04 to 04/02/05, and 04/02/06 to 04/02/07. National produced Exhibits 7-9, and certified them as "true and accurate" copies of the above-described three National polices.

Best Contractors Ins. Co. Risk Retention Group, LLC. In the underlying arbitration, Defendants produced Exhibits 10-16, which are, upon information and belief, true and correct copies of seven insurance policies issued by Best to Placer, affording coverage for the policy periods 04/02/06 to 04/02/07, 09/25/06 to 09/25/07, 09/20/10 to 09/20/11, 09/20/11 to 09/20/12, 09/20/12 to 09/20/13, 11/14/13 to 11/14/14, and 11/14/14 to 11/14/15.

The following chart summarizes the stated coverages and limits afforded by the Protection, National, and Best policies (collectively the "Policies"):

Coverage Period	Policy No.	Issuer (Per Declaration Page)	Products- Completed Operations Liability Limits	Named Insured(s)
May 22, 2002- Mar. 23, 2003	05-31-004596265-0001	Protection	$1,000,000	Placer (Add'l Insured Kent Dev.)
April 2, 2003- April 2, 2004	72LP 154648	National	$2,000,000	Placer
April 2, 2004- April 2, 2005	72LP 161563	National	$2,000,000	Placer
April 2, 2005- April 2, 2006	72LP 168052	National	$2,000,000	Placer
April 2, 2006- April 2, 2007	PC1112	Best	$1,000,000	Placer
Sep. 25, 2006- Sep. 25, 2007	PC1937	Best	$1,000,0001	Placer
Sep. 20, 2010- Sep. 20, 2011	Best5026-PCA71125	Best	$1,000,000	Placer
Sep. 20, 2011- Sep. 20, 2012	Best5026-PCA71125-02	Best	$1,000,000	Placer
Sep. 20, 2012- Sep. 20, 2013	Best5026-PCA71125-DA-03	Best	$1,000,000	Placer
Nov. 14, 2013- Nov. 14, 2014	Best5026-PCA509635-DA	Best	$1,000,000	Placer
Nov. 14, 2014- Nov. 14, 2015	Best5026-PCA509635-DA-02	Best	$2,000,000	Placer

The Association does not have personal knowledge as to the contents and terms of these various Insurers' Policies, and is, for now, relying on the Policies that the Insurers and/or their assigned defense counsel have produced to date. The Association reserves the right to submit corrected or additional policies. The Association intends to subpoena true, correct, and complete copies of all the Insurers' policies issued to one or more Defendants between 2002 and July 2015 at the required C.R.C.P. 103, § 8(b) evidentiary hearing on this Traverse if the Insurers do not voluntarily disclose and produce such copies.

III. The Policies' Indemnity Provisions.

The Policies provide coverage for "occurrences" that result in "property damage" during the relevant policy period:

a. We will 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. We will have the right and duty to defend the insured against any "suit" seeking those damages....

No other obligation or liability to pay sums or perform acts or services is covered unless explicitly provided for under Supplementary Payments - Coverages A and B.

b. This insurance applies to "bodily injury" and "property damage" only if:

(1) The "bodily injury" or "property damage" is caused by an "occurrence" that takes place in the "coverage territory;" and

(2) The "bodily injury" or "property damage" occurs during the policy period.²

Exhibit 6, at 003; Exhibit 7, at 017; Exhibit 8, at 021; Exhibit 9, at 018; Exhibit 10, at 008; Exhibit 11, at 012; Exhibit 12, at 020; Exhibit 13, at 013; Exhibit 14, at 013; Exhibit 15, at 011; Exhibit 16, at 011.

The Policies define "occurrence" to mean "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." The Policies define "property damage" to mean,

a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or

b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the 'occurrence' that caused it.

Exhibit 6, at 016-17; Exhibit 7, at 030-31; Exhibit 8, at 034-35; Exhibit 9, at 031-32; Exhibit 10, at 024-26; Exhibit 11, at 027-28; Exhibit 12, at 034-35; Exhibit 13, at 033-34; Exhibit 14, at 034-35; Exhibit 15, at 034-35; Exhibit 16, at 034-35.

The Policies define "coverage territory" to mean "The United States of America." The Policies define "coverage territory" to mean "The United States of America."

Exhibit 6, at 015; Exhibit 7, at 029; Exhibit 8, at 033; Exhibit 9, at 030; Exhibit 10, at 022; Exhibit 11, at 025; Exhibit 12, at 32; Exhibit 13, at 032; Exhibit 14, at 033; Exhibit 15, at 033; Exhibit 16, at 033.

IV. Supplementary Payments Provisions.

The Policies³ contain Supplementary Payments provisions that afford the following additional coverage, in relevant part:

We will pay, with respect to any claim we investigate or settle, or any "suit" against an insured we defend:

. . .

e. All costs taxed against the insured in the "suit".

. . .

g. All interest on

...