two overarching issues here today requiring this court reverse the grant of summary judgment st respectfully the order for summary judgment decided to spew did issues of material fact nd and related t court did not directly address the issue of fertility before i get into the specifics of those two issues i've asked but in looking at these issues the court apply the law of colorado and determine how a colorado court would decide these questions of insurance coverage respectfully the court below creates tension by declining to apply state court rules for insurance policy interpretation that law the law of the state of colorado is that insurance policies are construed to meet the reasonable expectations of the insured and those policies are liberally construed in favor of the insured to provide the broadest possible coverage this is not turn on whether a policy is and big  the doctrine of reasonable expectations applies regardless of ambiguity and a policy colorado law also dictates that the terms that are undefined in a policy are given their plain ordinary meaning according to what a person of reasonable intelligence would understand i understand that my client may be considered a sophisticated business entity in terms of construction with precast concrete but that doesn't mean they're held to a higher standard when it comes to insurance policy understanding or interpretation the court in bailey specifically stated that courts have a heightened responsibility in reviewing insurance policies pointing out that insurance policies are not ordinary bilateral contrast not often a lot of negotiation that happens using these guiding principles rocky mount pre stressed demonstrated that its claim falls within the coverage provisions of the policy  that federal courts in colorado for its don't always agree on some of these issues but the compass case makes clear that the colorado supreme court has not uniformly followed decision by federal courts or even the majority of jurisdictions next liberty has the burden to prove that its exclusions bar coverage insurers looking to avoid coverage must do so and clear unequivocal language again not looking to exclude coverage i'll turn to the issue of for two hundred and eighty dollars and some of the disputed issues of fact in this case the district court could not determine respectfully that rocky mountain three stresses failure to do the contracted work correctly was not for two of us viewed in the light most favorable to rocky mount pre stress any deficiencies and rocky mountain pre stresses work were accidental and caused damage to the owner's property liberty's own adjuster determine the damage deals with quote sinking pillars or columns which by necessity support some other structure in the building rocky mountain priest rushed not have to waste catastrophic loss to seek insurance coverage this building should not have had to fall down on everyone before repairs could be made and before the coverage applied respectfully the court erred in applying the contract to those specific facts of this case in addition to being  foley was there in the originally replied claimed that there was some structural damage to the to the structure that were originally orgon but the only reason for changing it wasn't because the building was starting to collapse in any way but because it wasn't built according to specs is that correct as i'm understanding your question respectfully not exactly i think the issue here is you had the discovery of defective grouting to put it pretty simply there are some complicated engineering reports and complicated engineering repairs and we never got to the point of experts in this case before summary judgment was granted the be clarified sure originally claimed that there was direct physical loss or damage to the concrete columns and pillars right and that was abandoned no i think there was sinking of the columns and pillars i don't think that's been invented and i think it raises an important point that we'd request the court to go back and look at the policy because there's two provisions here the coverage provision which says quote we cover direct physical loss for damage caused by a covered peril to buildings or structures and it goes on while in the course of construction and then there is another provision under the heading perils covered the policy provides we cover risks of direct physical loss or damage unless the loss is limited or caused by  excluded i think that word risks is important in there it was up to the insured to so delineate if they intended a different result the word risk as we go through the basic definitions but again we're looking at a ordinary common person understanding here under colorado law the definition of rick's disposer to the chance of injury or loss so when you have liberties on adjustor saying they are sinking columns and pillars you certainly have exposure to the chance of injury or loss and once we come within those coverage provision the burdens on liberty to prove its exclusions apply you're saying there was evidence of that the columns were sinking i think liberty statement or excuse me liberty adjuster statement specifically says they are sinking columns and slash pillars that statement again this is where the gore got into disputed issues the fact that nobody had a chance to take any depositions of these people so we don't know if there would have been further explanation there but certainly the district court should not have stepped into the shoes of the fact finder to evaluate that statement and conclude that this couldn't possibly have been for what would it take to be for two of us the fact that it was just miss designed this constructed that's enough to make it for to exist yes i think we do have cases to say this is an implied term to the extent that liberty wanted some other meaning and fortuitous it was up to them to delineate that's the cyprus case if they intended a different result from their builders risk policy they have to put that in there this concept of or to a t is very clearly a question of fact and the level of the damage the sinking pillars and columns which by their very nature support a building would cause damage to others work and to the owner's property those are all fact russians shouldn't have been decided at this stage on summary judgment but about the exclusion for w i think in this is where we get into again to take you back to the policy you have to plug in this definition of perils covered the exclusion has an exception that specifically uses the phrase covered peril and i'm quoting from the policy but if an act effect error or admission is describe the results of the cover peril we do cover the loss or damage caused by that covered peril so if you go back and plug in the language of covered peril you get if an act error or a mission as described above results if risks of direct physical loss or damage so you're getting into the circular logic where we've brought it into the coverage provisions and then that same definition is used in this exception to the exclusion i think a person of ordinary intelligence would understand that there is coverage for that was w if there's something wrong sure i think if you just have defective grouting with no other resulting loss than you maybe the grouting is unattractive or something of that nature or you go in and fix it and it's just the grouting then you with the exclusion would be totally unnecessary then anyway you wouldn't have you wouldn't have the damage to property and i think some of the language here is confusing and that's why colorado courts emphasize the height responsibility to look for coverage not to look for exclusions to coverage because i think sometimes these insurance policies you have to bend over backwards to try to understand them so you do have to look at what an ordinary person would understand in this circumstance and i think here it's quite clear when you plug in the definitions the definitions drafted by liberty that include the word risks of direct physical loss or damage that we certainly would have coverage here i'm happy to entertain any other questions but at this point i think i'll reserve the remainder of my time thank you good morning me please the court my name is nicole gorman and i'm here on behalf of the liberty mutual fire insurance company we've included in the record the claim basically is having the adjuster repeat what it received from rocky mountain which with the allegation that there were sinking columns with respect to other projects that's how they discovered that they needed to check the project judge major allowed the parties to conduct discovery on the coverage issue both parties conducted discovery we were written we issued written discovery to the other side they had produced initial disclosure in which they identify various categories of claim damage it appeared to us that that was only related to the ground in itself but we request the documentation if there was any other evidence of damage what we received back was over eleven thousand pages of documents and  damage we would argue that's not the way the policy reads so if you look at that provision if you look at the plain language of the policy which is what the courts start to weigh when you're interpreting an insurance policy the coverage so what this requires is three things direct physical damage caused by a covered peril to buildings or structures while in the course of construction so st rocky mountain show that there was some direct physical  to get to that section yes cover the risks of direct physical damage unless the law is excluded so what this provision here is saying is there are risks that this policy is intended to cover every insurance well just briefly address some of the cases that counsel raised i'll start with the travelers in that case don't with cross motions here i think it's worth noting that we did not file across a motion for summary judgment we didn't that there were undisputed issues and that this case was ready for determination as a matter of law i think there are cases where early summary judgment motions and cross motions are appropriate  perils covered sure and i think there's a couple of things in that case that are worth noting i think the court did comment there that the language does appear circular and i think we have some of that circular language happening here and in addition in that case it was being argued that the snow brought the loss within coverage there was snow that caused the displaced connection piece to the roof i think at the technical term and that makes that slightly different than what we have here where we don't have the rain water or the snow i thought was being said for the proposition that when it talks about the wrists of loss in the perils covered by which that does not add anything here is that and again this is why i spent a lot of time talking about how colorado looked at insurance policies liberty decided to include that word risks and we've laid out the dictionary definition of the word risk but i think it's pretty straightforward word if they wanted a different result i believe under cypress it was up to them to delineate cases interpret in language like that like my state was they were saying that  traverse case interpret with that very language if you have cases contrary to that interpret in the language in the pair i think this is an issue of st impression for colorado law to the extent  there is some discussion of ensuing loss provisions i think the vision one case that cited in the briefing it's a washington case but they seem to have similar rules to colorado insurance policy interpretation i also just wanted to take a moment to talk about arcane mechanical again cross motions there and there was coverage i believe in that case for the resulting water damage under the ensuing loss provision i'll conclude just by saying that i think the fact that we are able to go back and forth about the sinking pillars and columns and what the job you j e reports say and don't say demonstrates that we do have disputed issues of fact here that would have been disputed had we gone further down the