SUMMARY

April 21, 2022

2022COA45

No. 20CA1694, Gregory v. Safeco Ins. Co. of America —

Insurance — Property and Casualty Insurance — Homeowners’ 

Insurance — Late Notice — Notice-Prejudice Rule

A division of the court of appeals considers whether Colorado’s 

notice-prejudice rule applies to a notice-of-loss provision in a 

homeowners’ insurance policy. This rule excuses an insured’s late 

filing of a claim when the insurer is unable to demonstrate that its 

interests were prejudiced by the late notice. Concluding that the 

supreme court has not yet extended the notice-prejudice rule to 

first-party claims under homeowners’ policies — or authorized the 

court of appeals to do so — the division instead holds that the 

older, traditional rule still applies to such policies.

The division also considers whether a provision of an 

insurance policy requiring an insurer to give notice within 365 days 

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
of a covered loss is invalid under section 10-4-110.8(12)(a), C.R.S. 

2021, of the Colorado Homeowner’s Reform Act of 2013. This 

provision provides that homeowners may still file suit against their 

insurer within the applicable statute of limitations notwithstanding 

any provision in their insurance policy that requires homeowners to 

file suit within a shorter time period. The division concludes that 

the 365-day notice provision in question does not contravene this 

statute. 
COLORADO COURT OF APPEALS 2022COA45

Court of Appeals No. 20CA1694

City and County of Denver District Court No. 19CV34856

Honorable Michael A. Martinez, Judge

Karyn Gregory,

Plaintiff-Appellant,

v.

Safeco Insurance Company of America,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division II

Opinion by JUDGE KUHN

Furman and Pawar, JJ., concur

Announced April 21, 2022

Roth Milne, David Roth, Jennifer A. Milne, Denver, Colorado, for PlaintiffAppellant

Lewis Roca Rothgerber Christie LLP, Brian J. Spano, Holly C. White, Aurora 

Temple Barnes, Denver, Colorado, for Defendant-Appellee

MoGo LLC, Rodney J. Monheit, Katherine E. Goodrich, Denver, Colorado, for 

Amicus Curiae Colorado Trial Lawyers Association

Waltz Reeves, Christopher R. Reeves, Denver, Colorado, for Amicus Curiae 

Colorado Defense Lawyers Association
1

¶ 1 In this late-notice insurance coverage dispute, Karyn Gregory 

brought suit against her insurer, Safeco Insurance Company of 

America, after Safeco denied her first-party insurance claim for 

property damage as untimely under her homeowners’ insurance 

policy. Gregory appeals the district court’s grant of summary 

judgment to Safeco rejecting the applicability of Colorado’s noticeprejudice rule to policies like hers.

¶ 2 Our appellate courts have not yet considered this issue, and 

there appears to be uncertainty surrounding it in federal courts 

applying Colorado law. Gregory asks us to resolve this uncertainty. 

We conclude that only the supreme court may decide whether to 

replace the traditional rule with the notice-prejudice rule for firstparty claims under homeowners’ insurance policies. We therefore

affirm the judgment of dismissal, but we note that this case may 

present an opportunity for our supreme court to provide clarity on 

this question.

I. Background 

¶ 3 The facts of this case are undisputed. Gregory procured a 

homeowners’ insurance policy (the Policy) from Safeco that covered

specified direct physical damage to her home that “occurs during 
2

the policy period.” The Policy ran from February 15, 2017, to 

February 15, 2018, and in May 2017, a hailstorm damaged 

Gregory’s roof — a type of loss covered under the Policy.

¶ 4 But Gregory did not notify Safeco or file a claim for the loss 

until roughly eighteen months later, shortly after a contractor 

informed her of the hail damage. Safeco did not initially investigate 

the damage to Gregory’s home, but its initial review determined that 

the May 2017 hailstorm was the most recent one to occur near 

Gregory’s property.1 Based on this determination, Safeco

summarily denied her claim as untimely, citing the eighteen-month 

delay and a notice provision in the Policy specific to hail damage: 

In case of a loss to which this insurance may 

apply, you must perform the following duties:

. . .

give immediate notice to us or our agent. With 

respect to loss caused by the peril of . . . Hail, 

1 Safeco did not inspect the damage to Gregory’s roof until after she 

filed suit in December 2019. Gregory filed an affidavit by a licensed 

public adjuster who inspected her home in February 2020 — more 

than thirty-three months after the hailstorm. He believed her roof 

had visible and prevalent hail damage from the May 2017 hailstorm

that could still have been inspected more than a year after the 

damage occurred.
3

the notice must be within 365 days after the 

date of the loss . . . .

Under the same section, the Policy provides that “[n]o action shall 

be brought against [Safeco] unless there has been compliance with 

the policy provisions . . . .” And at the very beginning of the Policy, 

it states that Safeco “will pay claims and provide coverage as 

described in this policy if [Gregory] . . . compl[ies] with all the 

applicable provisions outlined in this policy.”

¶ 5 More than two years after Safeco denied her claim, Gregory 

filed suit, claiming that Safeco’s denial was a breach of contract and 

a bad-faith breach of an insurance policy, and that Safeco 

unreasonably delayed and denied payment of her claim under 

sections 10-3-1115 and -1116, C.R.S. 2021.

¶ 6 Safeco filed a motion for summary judgment under C.R.C.P. 

56(b), and Gregory responded with a motion for determination of a 

question of law under C.R.C.P. 56(h). Both motions addressed the 

same two issues Gregory appeals here:

(1) whether Colorado’s notice-prejudice rule applies, which 

would require Safeco to demonstrate it was prejudiced by 
4

Gregory’s late notice before denying her benefits for an 

untimely claim; and

(2) whether the Policy’s 365-day notice provision is invalid 

under section 10-4-110.8(12)(a), C.R.S. 2021, which 

limits insurers’ ability to contractually shorten the 

applicable statute of limitations for insureds to file suits 

like Gregory’s against them.

¶ 7 The district court ruled in favor of Safeco. It concluded that 

the 365-day notice requirement did not contravene the statute-oflimitations provision, that Gregory’s claim was untimely under the 

plain terms of the Policy, that her delay was unexcused as a matter 

of law, and that Safeco was therefore relieved of its obligation to 

provide coverage benefits for her claim. 

¶ 8 In so concluding, the court reasoned that the supreme court 

has not extended Colorado’s notice-prejudice rule to first-party 

claims under homeowners’ insurance policies like Gregory’s, and, in 

this absence, the supreme court’s precedent regarding the 

“traditional approach” required the court to strictly apply Gregory’s 

failure to abide by the Policy’s notice provision against her. The 
5

court thus determined it did not need to reach the question of 

whether Safeco was prejudiced by Gregory’s late notice.

II. Analysis

¶ 9 We review the court’s order granting summary judgment de 

novo. MarkWest Energy Partners, L.P. v. Zurich Am. Ins. Co., 2016 

COA 110, ¶ 11. Summary judgment is proper if there is no genuine 

issue as to any material fact and Safeco is entitled to judgment as a 

matter of law. Id.

¶ 10 We agree with the district court on both issues and therefore 

conclude that the court properly granted summary judgment to 

Safeco.

A. Notice-Prejudice Rule

¶ 11 Gregory does not contend that the terms of the Policy do 

anything other than unambiguously bar coverage benefits for a 

hail-damage claim unless she provides notice to Safeco within 365 

days of her loss. Travelers Prop. Cas. Co. v. Stresscon Corp., 2016 

CO 22M, ¶ 12 (“[A]n insurance policy is a contract, the 

unambiguous terms of which must be enforced as written . . . .”). 

Nor does she contend that her delay in giving notice of her claim 

was justified. E.g., Clementi v. Nationwide Mut. Fire Ins. Co., 16 
6

P.3d 223, 226-27 (Colo. 2001) (recognizing that, in certain 

circumstances, an insured may be excused for untimely notice if 

their delay in giving notice was justified).

¶ 12 Instead, Gregory argues the district court erred by not 

applying Colorado’s notice-prejudice rule to the notice-of-loss 

provision in her homeowners’ insurance policy. This rule “allow[s] 

insureds to avoid strict enforcement of a notice provision for public 

policy reasons.” Craft v. Phila. Indem. Ins. Co., 2015 CO 11, ¶ 34. 

Under it, “an insured who gives late notice of a claim to his or her 

insurer does not lose coverage benefits unless the insurer proves by 

a preponderance of the evidence that the late notice prejudiced its 

interests.” Id. at ¶ 2. If the insurer cannot show prejudice, the 

insured is “excuse[d] . . . from fulfilling a straightforward 

contractual condition — the notice requirement.” Id. at ¶ 39.

¶ 13 The supreme court has applied the notice-prejudice rule to 

notice provisions in underinsured motorist (UIM) and 

comprehensive general liability insurance policies. Clementi, 16 

P.3d at 224 (UIM policy); Friedland v. Travelers Indem. Co., 105 P.3d 

639, 641-42 (Colo. 2005) (liability policy). Gregory acknowledges 

that no Colorado court has explicitly applied this rule to 
7

homeowners’ policies like hers. Nonetheless, she argues that —

regardless of the type of insurance policy involved — supreme court 

precedent allows us to extend this rule to new types of coverage if 

we are satisfied by the public policy considerations enumerated in 

Clementi.

¶ 14 We disagree. We note the supreme court’s acknowledgement 

of the “modern trend” to extend the notice-prejudice rule to latenotice cases, Clementi, 16 P.3d at 229-30, but the court has been 

careful in applying and extending the rule — and indeed in the 

associated weighing of public policy considerations. In our view, 

applying the notice-prejudice rule to an entirely new class of 

insurance policies would still require departure from our supreme 

court’s precedent, an undertaking exclusively reserved to that 

court. See People v. Novotny, 2014 CO 18, ¶ 26. For this reason, 

we conclude the district court properly applied Colorado’s 

traditional approach to Gregory’s late-filed insurance claim. 

1. The Backdrop: Colorado’s Traditional Approach

¶ 15 Traditionally, Colorado courts did not consider insurer 

prejudice in late-notice cases, no matter the type of insurance 

policy involved. See Clementi, 16 P.3d at 226. Rather, Colorado law 
8

has held that “an unexcused delay in giving notice relieves the 

insurer of its obligations under an insurance policy, regardless of 

whether the insurer was prejudiced by the delay.” Id. at 227. This 

traditional approach is “grounded upon a strict contractual 

interpretation of insurance policies under which delayed notice was 

viewed as constituting a breach of contract, making the issue of 

insurer prejudice immaterial.” Id. at 226.

¶ 16 Yet, the traditional approach did not leave an insured without 

recourse in all circumstances when their insurer denied a late claim 

as untimely. Rather, Colorado law held that an insured could be 

excused for a delay in providing notice if the insured demonstrated 

“justifiable excuse or extenuating circumstances explaining the 

delay.” E.g., Certified Indem. Co. v. Thun, 165 Colo. 354, 360, 439 

P.2d 28, 30 (1968).

¶ 17 Colorado adhered to the traditional approach for nearly a 

century following the supreme court’s landmark 1909 case, Barclay 

v. London Guarantee & Accident Co., 46 Colo. 558, 105 P. 865 

(1909). Marez v. Dairyland Ins. Co., 638 P.2d 286, 288-89 (Colo. 

1981) (collecting cases and tracing the traditional approach to 

Barclay), overruled in part by Friedland, 105 P.3d 639. Indeed, 
9

since Barclay, Colorado courts have applied the traditional 

approach to notice provisions for first-party claims under insurance 

policies covering property and other personal loss. See Capitol 

Fixture & Supply Co. v. Nat’l Fire Ins. Co., 279 P.2d 435, 437 (Colo. 

1955) (fire insurance policy for late proof of loss); Circle C Beef Co. v. 

Home Ins. Co., 654 P.2d 869, 870 (Colo. App. 1982) (fire insurance 

policy for late proof of loss); Jennings v. Bhd. Accident Co., 44 Colo. 

68, 73-76, 96 P. 982, 984 (1908) (disability insurance policy for late 

proof of loss); Ord. of United Com. Travelers v. Boaz, 27 Colo. App. 

423, 425-28, 150 P. 822, 824 (1915) (accidental death insurance 

policy for late notice of loss), rev’d on other grounds, 69 Colo. 44, 

168 P. 1178 (1917); see also Conn. Fire Ins. Co. v. Colo. Leasing, 

Min. & Milling Co., 50 Colo. 424, 435-43, 116 P. 154, 160 (1911) 

(refusing to apply traditional approach to notice-of-loss provision in 

fire insurance policy based on court’s conclusion that the policy at 

issue did not make timely notice a condition precedent to coverage); 

Preferred Accident Ins. Co. v. Fielding, 35 Colo. 19, 22-28, 83 P. 

1013, 1015-16 (1905) (same outcome for notice-of-loss provision in

accidental injury insurance case).
10

¶ 18 In the 1981 case Marez v. Dairyland Insurance Co., the 

supreme court considered for the first time whether to abandon the 

traditional approach and adopt the notice-prejudice rule in the 

context of an automobile liability insurance case in which the 

insured failed to provide any notice to his insurer of an otherwise

covered liability claim made against him. 638 P.2d at 290. In this 

no-notice context, the supreme court concluded that the “salutary 

purposes of the notice provisions should not be set aside without 

substantial justification,” and the insured’s complete lack of notice 

“did not provide a factual context compelling a departure from the 

traditional approach.” Clementi, 16 P.3d at 227 (citing Marez, 638 

P.2d at 290-91). The court thus “refused to depart” from the 

approach it traced back to Barclay, id., concluding that the 

insured’s failure to abide by the policy’s notice provision 

constituted, as a matter of law, a breach of the policy relieving the 

insurer of its obligation to cover the claim, Marez, 638 P.2d at 286, 

288-89.

¶ 19 Gregory contends that, though the traditional approach was 

alive and well in Colorado going into the twenty-first century, the 

supreme court’s modern precedent permits this court to reject the 
11

traditional approach’s application to her first-party claim under a 

homeowners’ insurance policy.

2. Modern Cases: Adopting Notice-Prejudice 

in Limited Circumstances

¶ 20 In 2001, the supreme court in Clementi again reviewed 

whether to abandon the traditional approach — this time in the 

context of a late-notice case under a UIM insurance policy. 16 P.3d 

at 224-25. In its analysis, the court observed that it “ha[d] not 

previously considered whether the notice-prejudice rule applies in 

UIM cases,” and that the modern trend in the majority of states has 

been to apply the notice-prejudice rule “in the context of a UIM 

case.” Id. at 225, 228. The court decided to bring Colorado in line 

with that modern trend and “expressly adopt the notice-prejudice 

rule in Colorado, as it applies to UIM cases.” Id. at 232.

¶ 21 To get to this ruling, Clementi distinguished Marez, concluding 

that “because Marez involved a no-notice liability case, we find that 

Marez is inapplicable in determining whether insurer prejudice 

should be considered in the UIM late-notice case at bar.” Id. at 

228; see also Friedland, 105 P.3d at 644 n.2. Clementi, in other 
12

words, “limited [itself] to the particular context of [its] case, a UIM 

policy.” Friedland, 105 P.3d at 645.

¶ 22 In support of its adoption of the notice-prejudice rule for latenotice UIM cases, Clementi identified three public policies that other 

states had offered for justifying a departure from the traditional 

approach: (1) the adhesive nature of UIM insurance contracts, 

(2) the public policy objective of compensating innocent tort victims, 

and (3) the inequity of the insurer reaping a windfall by invoking a 

technicality to deny coverage. Clementi, 16 P.3d at 229; see also

Craft, ¶ 26. Reasoning that all three policy justifications had been 

recognized in Colorado law — at least in the particular context of 

UIM insurance — the court adopted the notice-prejudice rule for 

UIM policies, concluding that “insurer prejudice should now be 

considered when determining whether noncompliance with a UIM 

policy’s notice requirements vitiates coverage.” Clementi, 16 P.3d at 

229-30.

¶ 23 Five years later, the supreme court in Friedland again revisited 

the notice-prejudice rule in a late-notice liability case, granting 

certiorari “to determine whether the notice-prejudice rule 

announced in Clementi . . . applies to liability policies” and 
13

answering that question in the affirmative. Friedland, 105 P.3d at 

641. 

¶ 24 The parties in Friedland argued whether Clementi’s adoption of 

the notice-prejudice rule should be limited to UIM cases. Id. at 644 

n.2. The court recognized a trend in other states to apply this rule 

to liability policies, and again it reasoned that the same public 

policy justifications outlined in Clementi — this time analyzed in the 

liability insurance context — supported the extension of the noticeprejudice rule to liability policies. Id. at 646-47; see also Marez, 

638 P.2d at 293 (Quinn, J., dissenting) (analyzing public policies in 

automobile liability context). In so ruling, the supreme court 

“overrule[d] Marez to the extent it applies to late-notice liability 

cases.” Friedland, 105 P.3d at 643, 645.

¶ 25 Ten years later, the supreme court again revisited the noticeprejudice rule in two liability insurance cases — Craft and 

Stresscon. In Craft, the supreme court declined to extend the 

notice-prejudice rule to a date-certain notice requirement in a 

“claims-made” policy — that is, a policy which “covers only those 

claims brought against the insured during the policy period and 

reported to the insurer by a date certain, typically within a brief 
14

window following expiration of the policy period.”2 Craft, ¶¶ 3, 4, 7, 

32. And in Stresscon, the supreme court again declined to extend 

the rule to a different type of policy provision — a “no voluntary 

payments” clause that excluded from coverage certain payments the 

insured voluntarily made to a tort victim without the consent of 

their insurer. Stresscon, ¶¶ 2-3, 23.

¶ 26 In both cases, the supreme court noted that it had not 

previously addressed whether the notice-prejudice rule should 

apply in these contexts. Craft, ¶ 2; see Stresscon, ¶¶ 17-21. And 

for each context, the court reasoned that the public policies 

recognized in Clementi did not support the extension of the rule. 

Craft, ¶¶ 7, 43-45; Stresscon, ¶¶ 11-15. 

3. The Traditional Approach Still 

Applies to Gregory’s Policy

¶ 27 Gregory contends that the Clementi line of cases requires us to 

determine if the public policies recognized in Clementi support 

extension of the notice-prejudice rule to policies like hers. Amicus 

2 The court distinguished Friedland as involving an occurrence 

liability policy as opposed to a claims-made liability policy. Craft v. 

Phila. Indem. Ins. Co., 2015 CO 11, ¶¶ 40-45. Gregory’s policy 

covered losses occurring during, not claims made in, the policy 

period.
15

in support of Gregory argues that this line of cases establishes 

notice-prejudice as the default rule in late-notice cases that applies 

unless the Clementi policies are not satisfied.

¶ 28 We disagree with both readings of these cases. We see the 

supreme court as taking a case-by-case approach that extends the 

notice-prejudice rule to only the particular type of insurance policy 

before it. Cf. Stresscon, ¶¶ 8-9 (Clementi and Friedland’s notice 

holdings “did not . . . also implicitly extend our newly minted 

notice-prejudice rule to no-voluntary-payments or consent-to-settle 

provisions.”). The supreme court has not yet unequivocally applied 

the notice-prejudice rule to all late-notice cases. 

¶ 29 To the contrary, it has specifically limited its notice-prejudice 

holdings to UIM and liability insurance policies. In Clementi and 

Friedland, it expressly said so. Craft, ¶ 21 (“Although we limited 

our holding in Clementi to late notice in the UIM context, our 

analysis in that case laid the groundwork for our later decision in 

Friedland.”); Friedland, 105 P.3d at 643 (“In this case, we apply the 

notice-prejudice rule to liability policies.”). Moreover, both cases 

explicitly relied on public policy justifications specific to UIM and 

liability policies, respectively. Craft even noted on multiple 
16

occasions that Clementi first adopted the notice-prejudice rule “for 

UIM cases” and Friedland later “extended” it to liability policies. 

Craft, ¶¶ 7, 16, 23, 25, 26.

¶ 30 Against the historical backdrop of the traditional approach in 

Colorado, these limited holdings — and their treatment of Marez in 

particular — do not persuade us that the court has implicitly 

overruled its traditional approach for all insurance policies. As 

noted, Friedland overruled Marez “to the extent it applies to 

late-notice liability cases.” Friedland, 105 P.3d at 643, 645. And in 

Clementi, the court distinguished Marez on the basis that Clementi

involved a UIM rather than liability policy. Id. at 645. Together, 

these cases show that the court cabined Marez’s refusal to depart 

from the traditional approach to the no-notice liability context —

not the no-notice context for any type of insurance policy.3 In any 

3 While the supreme court in Clementi explicitly disapproved of this 

court’s extension of Marez to “non-liability late-notice cases,” this 

statement came in the context of the supreme court’s discussion of 

this court’s application of Marez to both UIM and liability policies. 

Clementi v. Nationwide Mut. Fire Ins. Co., 16 P.3d 223, 227-28 & n.5

(Colo. 2001) (citing court of appeals cases applying Marez to UIM 

policies). In this context, we do not read “non-liability” to mean “all 

types of policies that aren’t liability policies” but rather only the 

type before the Clementi court — a UIM policy. See Friedland v. 

Travelers Indem. Co., 105 P.3d 639, 644 n.2 (Colo. 2005) (“We 
17

event, Marez didn’t announce the traditional approach; it merely 

applied it. Id.; Marez, 638 P.2d at 286, 288. We thus disagree that 

the supreme court has jettisoned the traditional approach for all 

but no-notice cases.

¶ 31 Further, contrary to Gregory’s assertion, this court has never 

ruled that the supreme court has given us authority to use the 

Clementi justifications to extend the reach of the notice-prejudice 

rule to policies other than liability or UIM. In MarkWest, on which 

Gregory relies for this assertion, the division held that “Colorado’s 

notice-prejudice rule applies even where . . . the notice requirement 

is a condition precedent to coverage under an occurrence liability 

policy.” MarkWest, ¶ 31. But to reach this conclusion, MarkWest

did not analyze or otherwise rely on the Clementi policies, and, 

notably, MarkWest involved the same type of policy as that in 

Friedland. See id. at ¶¶ 16, 21-31. Additionally, the supreme court 

has seemingly disapproved of this court using the Clementi policies

recognize that [Clementi] might be read as reaffirming the Marez

rule as to all cases other than UIM cases. We clarify that we did not 

intend to make a holding to this effect; rather, we were

distinguishing Marez at that time and chose to leave the potential 

applicability of our Clementi rationale to a liability policy case to 

some future time.”).
18

to extend the notice-prejudice rule to new types of provisions in 

UIM and liability policies. Compare Lauric v. USAA Cas. Ins. Co., 

209 P.3d 190, 193 (Colo. App. 2009) (“Although the decision in 

Clementi involved a late notice of claim, we conclude that the 

supreme court, as evidenced by the decision in Friedland and its 

disapproval of the Hawkeye decision in Clementi, would apply the 

notice-prejudice rule to an insured's failure to notify the insurer of, 

and obtain its consent to, a settlement with a tortfeasor in a UIM 

case.”), with Stresscon, ¶¶ 8-9 (“We did not [in Friedland] also 

implicitly extend our newly minted notice-prejudice rule to novoluntary-payments or consent-to-settle provisions.”).

¶ 32 In our view, given its decision to carefully circumscribe its 

holdings rather than announce a broad rule, the supreme court has 

not yet indicated that the notice-prejudice rule should apply to all 

types of insurance policies. We therefore conclude that the task of 

deciding whether to extend the notice-prejudice rule to a new type 

of insurance policy is not one we may undertake. 

¶ 33 In concluding this, we note that federal district courts 

applying Colorado law have split, under facts nearly identical to 

those here, on whether the notice-prejudice rule applies to first-
19

party claims under homeowners’ insurance policies. Compare 

Cherry Grove E. II Condo. Ass’n v. Phila. Indem. Ins. Co., No. 

16-cv-02687-CMA-KHR, 2017 WL 6945038, at *4-5 (D. Colo. Dec. 

20, 2017) (in late-notice hail-damage case, concluding the Clementi 

policy justifications do not support extension of the notice-prejudice 

rule to “first-party insurance coverage”), with Hiland Hills 

Townhouse Owners Ass’n v. Owners Ins. Co., No. 17-cv-1773-MSKMEH, 2018 WL 4537192, at *4-6 (D. Colo. Sept. 20, 2018) 

(concluding the opposite). But even Hiland Hills seemed to 

recognize that its conclusion might not be based on controlling 

Colorado precedent, but rather on a prediction about what the 

supreme court would do with its existing precedent if faced with 

this issue. See Hiland Hills, 2018 WL 4537192, at *6 (“[T]o the 

extent that Friedland does not already control the outcome here, 

this Court is persuaded that the Colorado Supreme Court’s analysis 

in that case would yield the conclusion that the notice/prejudice 

rule is applicable in the first-party casualty insurance context as 

well.”); see also Rocky Mountain Prestress, LLC v. Liberty Mut. Fire 

Ins. Co., 960 F.3d 1255, 1259 (10th Cir. 2020) (when Colorado law 

has not addressed a specific issue, the federal court will predict 
20

what the Colorado supreme court would hold). And, while both 

cases analyzed the Clementi policy justifications to reach their 

respective conclusions, a third federal case concluded that even 

undertaking this Clementi analysis would be improper, as it would 

be premised on a prediction that the supreme court would overrule 

its existing precedent with respect to the traditional approach. 656 

Logan St. Condo. Ass’n v. Owners Ins. Co., 389 F. Supp. 3d 946, 

952-56 (D. Colo. 2019); see also 6 W. Apartments, LLC v. Ohio Cas. 

Ins. Co., No. 1:20-cv-02243-RBJ, 2021 WL 4949154, at *7 (D. Colo. 

Oct. 25, 2021) (agreeing with the analysis in 656 Logan Street and 

stating that “[t]he cases establishing notice-prejudice regimes for 

some insurance contracts contain policy justifications and broad 

language that makes their applicability to other insurance regimes 

unclear”).

¶ 34 We also acknowledge that the supreme court has, at times, 

spoken more broadly about the implications of its holdings in 

Clementi and Friedland. See Stresscon, ¶ 24 (Márquez, J., 

dissenting) (“[O]ur own precedent recogniz[es] that, where a 

provision of an insurance contract does not fundamentally define 

the scope of coverage, but instead protects the insurer’s opportunity 
21

to investigate and defend or settle claims, the insured’s violation of 

that provision should not present an absolute bar to recovery.”); 

Friedland, 105 P.3d at 645 (“Because of its reasoning and departure 

from the Barclay and Marez line of cases in favor of the noticeprejudice rule adopted by the majority of jurisdictions throughout 

the United States, we find that Clementi, not Marez, is the 

applicable stare decisis precedent.”); Friedland, 105 P.3d at 647 

(“[W]e recognize that our decision today leaves little, if any, vitality 

to Marez because disputes will likely arise only in the context of late 

notice by an insured . . . .”). Moreover, at least two states that have 

considered this issue have extended the notice-prejudice rule to 

notice provisions for first-party claims for coverage. Pitzer Coll. v. 

Indian Harbor Ins. Co., 447 P.3d 669 (Cal. 2019) (notice-of-loss 

provision in policy covering remediation for discovered pollution 

conditions); Estate of Gleason v. Cent. United Life Ins. Co., 2015 MT 

140, 350 P.3d 349 (notice-of-loss provision in cancer benefit 

insurance policy); see also Ridglea Estate Condo. Ass’n v. Lexington 

Ins. Co., 415 F.3d 474, 479-80 (5th Cir. 2005) (predicting that 

Texas law would apply the notice-prejudice rule to notice-of-loss 

provision in property insurance policy); but see GuideOne Mut. Ins. 
22

Co. v. First Baptist Church of Brownfield, 495 F. Supp. 3d 428, 

435-37 (N.D. Tex. 2020) (predicting that Texas law would not apply 

the notice-prejudice rule to proof-of-loss provision in property 

insurance policy).

¶ 35 But fundamentally, the purpose of the notice-prejudice rule is 

to allow the insured to avoid a forfeiture for reasons of public 

policy.4 Craft, ¶ 34. And in Clementi and Friedland, the supreme 

court concluded that such reasons warranted the extension of the 

rule to the insurance policies before it. But the traditional 

approach itself serves its own public policies — policies that might

counsel in favor of forfeiture in this instance. E.g., id. at ¶ 35;

Marez, 638 P.2d at 291; Stresscon, ¶ 12. Gregory, in essence, asks 

us to predict that the supreme court would conclude that the public 

policies it identified in Clementi would override the policies it has 

identified as underpinning the traditional approach.

¶ 36 For her part, Gregory argues that the three Clementi policy 

justifications provide good reasons for extending the notice4 We note that, ordinarily, this court may examine whether a 

provision of an insurance contract is void as against public policy. 

But “the notice-prejudice rule does not render a notice provision 

void,” but rather only excuses late notice. Craft, ¶ 34.
23

prejudice rule to her policy. See Friedland, 105 P.3d at 645 (“We 

have a heightened responsibility to scrutinize insurance policies for 

provisions that unduly compromise the insured’s interests . . . .”). 

First, she argues that, like in the UIM or automobile liability 

context, homeowners’ insurance contracts are adhesive, as insureds 

enter into them “for the financial security obtained by protecting 

themselves from unforeseen calamities and for peace of mind, 

rather than to secure commercial advantage as with a negotiated 

business contract,” and they are “typically provided with form 

contracts promulgated by the insurer” in which there is a disparity 

of bargaining power. Friedland, 105 P.3d at 646. Second, she 

continues, like in the UIM context, the Policy protects the 

homeowner who invokes it for damages and who should be made 

whole within the limits of the coverage. While insured homeowners

are not technically victims of a tort, Gregory notes that such 

insureds have suffered a loss — they are victims, in essence, of 

“acts of god” rather than a human tortfeasor — and coverage for 

this loss is a “fundamental purpose” of homeowners’ insurance. 

See id. And third, Gregory argues that insured homeowners pay 

premiums for this coverage, and whether an insurer’s interests 
24

would suffer because of technical late notice is exactly what the 

notice-prejudice rule is intended to determine. 

¶ 37 Gregory argues that these policy reasons warrant extension of 

the notice-prejudice rule to first-party claims in the homeowners’ 

insurance context. Maybe so, but we do not see this policy 

judgment as ours to make. See Novotny, ¶ 26 (“If a precedent of 

this Court has direct application in a case, yet appears to rest on 

reasons rejected in some other line of decisions, the Court of 

Appeals should follow the case which directly controls, leaving to 

this Court the prerogative of overruling its own decisions.” (quoting 

Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 

484 (1989))). The traditional approach already has its own built-in 

safety valve for late-filing insureds — the above-discussed doctrine 

of “justifiable excuse.” We think that only the supreme court may 

add the notice-prejudice rule to this framework. 

¶ 38 This leaves us with older supreme court cases applying the 

traditional approach to similar notice provisions in policies covering 

property loss. E.g., Capitol Fixture & Supply Co., 279 P.2d at 435 

(fire insurance case applying traditional approach to a late-filed 

proof of loss). Gregory’s policy included a requirement that she 
25

report hail damage within 365 days, and coverage benefits under 

the Policy were conditioned on complying with its terms. Under this 

approach, then, Gregory’s timely notice of loss was a condition 

precedent for her contractual right to recover for the hail damage to 

her home. See MarkWest, ¶ 13 (“[P]rinciples of contract 

interpretation . . . would ordinarily lead us to conclude that timely 

notice of [an incident triggering coverage] was a condition precedent 

that had to be satisfied before coverage under the policy would be 

extended to [that] incident[].”); Fielding, 35 Colo. at 25, 83 P. at 

1015-16 (“[W]hile notice is a condition precedent to maintaining an 

action, a failure on the part of the insured or beneficiary under a 

policy of insurance to comply with its terms with respect to notice 

after loss, will not result in a forfeiture of the policy unless, by the 

express terms thereof, or by necessary implication, such was the 

contract of the parties.”). Gregory’s unexcused late notice therefore 

relieved Safeco of its obligation to cover this loss. See Clementi, 16 

P.3d at 227. 

¶ 39 For these reasons, we conclude that the traditional approach 

still applies to the notice provision in Gregory’s homeowners’ 

insurance policy. The district court thus did not err in declining to 
26

determine whether Safeco was prejudiced by Gregory’s untimely 

notice. See id. at 226-27 (Under the traditional approach, “delayed 

notice [is] viewed as constituting a breach of contract, making the 

issue of insurer prejudice immaterial.”).

B. Statute of Limitations

¶ 40 Next, Gregory contends that the 365-day notice provision in 

the Policy violates section 10-4-110.8(12)(a) of the Colorado 

Homeowner’s Reform Act of 2013. This provision states:

Notwithstanding any provision of a 

homeowner’s insurance policy that requires

the policyholder to file suit against the insurer, 

in the case of any dispute, within a period of 

time that is shorter than required by the 

applicable statute of limitations provided by 

law, a homeowner may file such a suit within 

the period of time allowed by the applicable 

statute of limitations . . . .

§ 10-4-110.8(12)(a).

¶ 41 Gregory argues that the 365-day notice provision contravenes 

this statute because it effectively shortens the applicable statute of 

limitations to 365 days — shorter than that for her legal claims. We 

agree with the district court that a policy requirement to file a 

timely claim with an insurer has no bearing on the insured’s ability 

to file a timely lawsuit for the insurer’s alleged violations of that 
27

policy.5 We base this conclusion on principles of accrual and a 

plain reading of the 365-day notice provision in question. See 

MarkWest, ¶ 13 (“We construe insurance policies according to 

principles of contract interpretation.”).

¶ 42 First, “[i]ntegral to any statute of limitations is the time of 

accrual: the time when the proverbial clock starts ticking and the 

statute of limitations begins to run.” Rooftop Restoration, Inc. v. Am. 

Fam. Mut. Ins. Co., 2018 CO 44, ¶ 13. The basis of each of 

Gregory’s legal claims is Safeco’s allegedly wrongful handling of her 

insurance claim for coverage benefits. See Emenyonu v. State Farm 

Fire & Cas. Co., 885 P.2d 320, 324 (Colo. App. 1994). Gregory’s 

legal claims did not begin to accrue, then, until at the earliest she 

knew or should have known that Safeco wronged her in handling 

her insurance claim. See § 13-80-108(1), (6), C.R.S. 2021; 

Daugherty v. Allstate Ins. Co., 55 P.3d 224, 226 (Colo. App. 2002), 

superseded by statute as stated in Brodeur v. Am. Home Assurance 

5 Because we conclude this, we reach neither Safeco’s contention 

that Gregory’s motion for a determination of a question of law was, 

in fact, a motion for summary judgment filed after the deadline for 

dispositive motions, nor Gregory’s responses that her motion was

rather a timely filed cross-motion for summary judgment and that, 

either way, Safeco did not preserve its contention.
28

Co., 169 P.3d 139 (Colo. 2007). And by definition, Safeco could not 

even begin handling her insurance claim — much less handle it 

wrongfully — until Safeco received notice of it. Emenyonu, 885 P.2d 

at 324. Notice of Gregory’s insurance claim was thus a prerequisite

to accrual of her legal claims based on Safeco’s wrongful handling 

of that insurance claim. 

¶ 43 Second, the 365-day notice provision on its face does not bar 

Gregory from bringing suit against Safeco — either within 365 days 

or beyond. “[A]n insurance policy is a contract, the unambiguous 

terms of which must be enforced as written,” Stresscon, ¶ 12, and 

this notice provision only purports to define one of Gregory’s duties 

under the contract. Far from limiting Gregory’s window to file suit, 

this provision instead defines a circumstance in which Gregory —

not Safeco — breaches the contract and forfeits entitlement to 

coverage benefits for an otherwise covered loss.

¶ 44 The duration, or even the existence, of a provision requiring 

Gregory to notify Safeco of covered losses within a certain window 

thus has no bearing on her window to file suit for Safeco’s alleged 

wrongdoing under that contract. We therefore conclude that the 
29

365-day notice provision in Gregory’s Policy does not contravene 

section 10-4-110.8(12)(a).

III. Conclusion

¶ 45 The judgment is affirmed.

JUDGE FURMAN and JUDGE PAWAR concur.