Ironshore v. Pool

24CA0996 Ironshore v Pool 04-24-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0996
Adams County District Court No. 22CV30798
Honorable Arturo G. Hernandez, Judge

Ironshore Specialty Insurance Company, an Arizona corporation, as subrogee
of Brinkman Construction, Inc.,

Plaintiff-Appellant,

v.

Pool and Spa Company, a Colorado limited liability company,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE KUHN
Welling and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 24, 2025

Nicolaides Fink Thorpe Michaelides Sullivan, LLP, Matthew J. Fink, Denver,
Colorado; Michael A. Yanof, Dallas, Texas, for Plaintiff-Appellant

Tyson & Mendes LLP, Michael D. Drews, Greenwood Village, Colorado, for
Defendant-Appellee
¶1 Plaintiff, Ironshore Specialty Insurance Company, appeals the

trial court’s judgment entered upon jury verdicts in favor of

defendant, Pool and Spa Company (Pool & Spa), on Ironshore’s

breach of contract and negligence claims. We affirm.

I. Background

¶2 We glean the following factual and procedural background

from the record and evidence the jury heard at trial.

¶3 This construction defect dispute concerns the development of

a hotel in Westminster, Colorado. In 2019, the hotel’s owner,

Marriott International, hired Brinkman Construction, Inc., to serve

as the general contractor for the project. A few months later, Pool &

Spa entered into a subcontract with Brinkman, in which it agreed

to design and build an outdoor swimming pool and spa in the

hotel’s courtyard for $160,500. Pool & Spa began working on the

project in April 2020 after obtaining all the necessary approvals

from Brinkman and its architect, Worth Group Architects and

Designers. In July of that year, Pool & Spa completed the

installation of the pool and spa, the structures passed a final

inspection, and Pool & Spa requested payment of $35,000, the

outstanding contract balance.

1
¶4 Brinkman rejected the payment request. Instead, it informed

Pool & Spa that it was terminating the contract because the

structures contained numerous material defects that Pool & Spa

had failed to correct. Specifically, the termination letter alleged that

Pool & Spa, among other things, hadn’t properly installed the

coping and handrails and had failed to install “auto fill components”

and a “chemical feeder” for the pool.

¶5 Roughly two months later, in November, Brinkman sent

Pool & Spa notice of claim under section 13-20-803.5, C.R.S. 2024.

In addition to the previously identified defects, and as relevant on

appeal, Brinkman alleged that Pool & Spa and Pool & Spa’s

subcontractor had failed to design and install a leak collection

system that a civil engineering company, Kumar & Associates, had

recommended in a 2017 geotechnical soils report (the Kumar

report). Brinkman alleged that the defects in Pool & Spa’s

workmanship “ha[d] led to water leaks, potential safety issues, and

surrounding soils movement.” Considering the nature of the

alleged defects, Brinkman asserted that “the only workable solution

[was] to demolish, remove and replace the swimming pool in its

entirety.” After Pool & Spa denied liability for the claimed defects,

2
Brinkman paid approximately $647,000 to replace the pool, the

spa, and the surrounding concrete pool deck.

¶6 In June 2022, Brinkman and its insurer, Ironshore, sued Pool

& Spa. About seven months later, Ironshore paid Brinkman

roughly $540,000 under its policy in exchange for a release of any

claims relating to the pool project. Then, as Brinkman’s subrogee,

Ironshore filed an amended complaint and asserted against Pool &

Spa claims for general breach of contract, breach of the indemnity

clause in article 9.1.1 of the contract, negligence, and professional

negligence. In the meantime, Pool & Spa filed a third-party

complaint against several entities that had participated in the

project, including Worth Group and Aquatic Engineering

Consultants, LLC (AEC), the subcontractor that Pool & Spa had

hired to design the pool and spa. The trial court eventually

dismissed the third-party defendants from the suit, and Ironshore’s

claims against Pool & Spa proceeded to a six-day jury trial.1

1 Specifically, Pool & Spa stipulated to AEC’s dismissal from the

case before trial. It also settled with Worth Group, which Pool &
Spa designated as a nonparty at fault shortly before trial.

3
¶7 The jury returned special verdicts finding that (1) Pool & Spa

breached the pool contract with Brinkman, but Brinkman failed to

substantially perform its obligations under that contract; (2) Pool &

Spa didn’t breach the indemnification clause; (3) Brinkman and

Pool & Spa were both negligent; (4) Pool & Spa was 15% at fault for

Brinkman’s damages and Brinkman was 85% at fault; and

(5) Ironshore wasn’t entitled to any damages on its claims.

Consequently, the trial court entered judgment in favor of Pool &

Spa.

II. Analysis

¶8 On appeal, Ironshore contends that the trial court reversibly

erred by entering judgment on the jury’s special verdicts because

the evidence was insufficient to support the jury’s findings that

Brinkman (1) breached the contract with Pool & Spa and (2) was

85% negligent. Ironshore also contends that the jury erred by

finding that (3) Pool & Spa didn’t breach the indemnity clause in the

contract, and (4) Ironshore wasn’t entitled to recover any damages

because the evidence was insufficient to support those findings and

the findings were inconsistent with other aspects of the jury’s

4
verdicts. We set forth the applicable standard of review before

addressing each of Ironshore’s contentions.

A. Standard of Review

¶9 We review sufficiency of the evidence claims de novo.2

Northstar Project Mgmt., Inc. v. DLR Grp., Inc., 2013 CO 12, ¶ 14. In

doing so, “we must determine whether the evidence, viewed as a

whole and in the light most favorable to the prevailing party, is

sufficient to support the verdict.” Parr v. Triple L & J Corp., 107

P.3d 1104, 1106 (Colo. App. 2004). We also must “draw every

reasonable inference from the evidence in favor of [the prevailing]

2 Pool & Spa contends that “[s]ufficiency of the evidence to support

a jury’s finding is not a question of law reviewed [de novo].” In
support of its position, Pool & Spa appears to argue that de novo
review only applies when a sufficiency of the evidence claim relates
to an underlying question of law. This argument misses the mark.
See Coors v. Sec. Life of Denver Ins. Co., 112 P.3d 59, 66 (Colo.
2005). Our sufficiency review doesn’t turn on whether the
underlying issue is one of law or fact because we don’t review de
novo the jury’s ultimate conclusion. See Mince v. Butters, 616 P.2d
127, 129 (Colo. 1980) (noting that while the sufficiency of the
evidence in awarding damages is a question of law, whether to
award those damages lies in the discretion of the trier of fact).
Instead, as the supreme court has observed, we merely “review all of
the relevant evidence de novo in the light most favorable to the
verdict” to decide whether it sufficiently supported the jury’s
decision. Northstar Project Mgmt., Inc. v. DLR Grp., Inc., 2013 CO
12, ¶ 14.

5
party.” Averyt v. Wal-Mart Stores, Inc., 2013 COA 10, ¶ 18 (quoting

Harris Grp., Inc. v. Robinson, 209 P.3d 1188, 1201 (Colo. App.

2009)). It is the sole prerogative of the jury to resolve disputes of

fact and to determine the weight of the evidence, the inferences to

be drawn from it, and the credibility of the witnesses. Fisher v.

State Farm Mut. Auto. Ins. Co., 2015 COA 57, ¶ 40, aff’d, 2018 CO

39. Accordingly, we won’t disturb a jury’s verdict if there is

competent evidence in the record to support it, even if reasonable

people could reach a different conclusion based on the same facts.

Id.; see also People in Interest of S.G.L., 214 P.3d 580, 583 (Colo.

App. 2009).

¶ 10 Likewise, we won’t reverse a jury’s verdict for inconsistency

when the jury has been adequately instructed on the law and the

verdict is supported by sufficient competent evidence in the record.

Hock v. N.Y. Life Ins. Co., 876 P.2d 1242, 1259 (Colo. 1994). We

review the jury instructions, the jury verdict forms, and the

evidence presented at trial to answer this question. Id.; see also

Hall v. Frankel, 190 P.3d 852, 863 (Colo. App. 2008). “If there is a

view of the case that makes the jury’s verdict consistent, we have a

duty to reconcile the verdict in that way.” Hall, 190 P.3d at 863.

6
B. Ironshore’s Sufficiency Challenge
to the General Breach of Contract Verdict

¶ 11 Ironshore contends that there was insufficient evidence

supporting the jury’s finding that Brinkman also breached the pool

contract, which means its ultimate conclusion that Ironshore

therefore couldn’t prevail on its general breach of contract claim is

also unsupported. We disagree.

1. Applicable Law

¶ 12 To prove a breach of contract, a plaintiff must show (1) the

existence of a contract; (2) performance by the plaintiff or some

justification for nonperformance; (3) failure to perform the contract

by the defendant; and (4) resulting damages to the plaintiff. Univ. of

Denver v. Doe, 2024 CO 27, ¶ 46.

¶ 13 “The ‘performance’ element in a breach of contract action

means ‘substantial’ performance.” McDonald v. Zions First Nat’l

Bank, N.A., 2015 COA 29, ¶ 50 (quoting W. Distrib. Co. v. Diodosio,

841 P.2d 1053, 1058 (Colo. 1992)). “A party has substantially

performed when the other party has substantially received the

expected benefit of the contract” and is therefore bound to pay the

contract price to the performing party. Stan Clauson Assocs., Inc. v.

7
Coleman Bros. Constr., LLC, 2013 COA 7, ¶ 9; Diodosio, 841 P.2d at

1058. “Failure to substantially perform constitutes a breach of

contract.” Stan Clauson Assocs., Inc., ¶ 9.

2. There Was Sufficient Evidence to Support the Jury’s Finding
that Brinkman Failed to Substantially Perform the Contract

¶ 14 The parties’ dispute at trial centered around the

uncontroverted fact that Pool & Spa didn’t design and install the

leak collection system that the Kumar report had recommended.

The report stated that because of expansive soils at the project site,

“[t]he pool should include a leak collection system to reduce the

potential for leak-induced post-construction heave.” The contract

between Brinkman and Pool & Spa didn’t include the quoted

language or explicitly state that the pool must be equipped with the

recommended system. Instead, article 13 of the contract

incorporated several other documents by reference, including the

Kumar report. The contract included as an exhibit the cover page

of the Kumar report but not the remainder of the document. The

contract noted that the “[f]ull report [was] available in Sharefile” and

that “[a] link w[ould] be provided with the Subcontract Agreement.”

8
¶ 15 Ironshore argued at trial that because the Kumar report

recommended a leak collection system, and that report was

referenced in the contract, Pool & Spa breached the contract by

failing to design and install the leak collection system underneath

the pool, or to at least confirm with Brinkman whether it was

expecting the pool to have such a system. That failure, Ironshore

contended, led to the build-up of leaking pool water in the

expansive subsoils, which, in turn, caused the pool and the

surrounding concrete deck to shift. As a result of these defects,

Brinkman had to spend roughly $647,000 on demolishing and

replacing the pool, spa, and concrete deck. And because the costs

associated with this corrective work exceeded the unpaid balance of

the contract price, Ironshore’s position was that Brinkman properly

withheld final payment in accordance with the contract’s plain

terms.

¶ 16 For its part, Pool & Spa didn’t dispute that its contract with

Brinkman referenced the Kumar report and that the pool it built

lacked the leak collection system. Pool & Spa argued that it

nonetheless completed all the work that Brinkman had hired it to

do because the disputed leak collection system wasn’t within the

9
scope of its work. In support of this argument, Pool & Spa

highlighted evidence suggesting that the design and installation of

the recommended leak collection system weren’t required under the

bid request that it had received from Brinkman, its proposal to

Brinkman, or the shop drawings that the parties had negotiated

and agreed upon. Pool & Spa also highlighted that Brinkman’s

engineer and Worth Group signed off on the design, which didn’t

explicitly contain a leak collection system. Finally, Pool & Spa

pointed out that Brinkman didn’t provide anything more than the

first page of the Kumar report until after the pool design had been

completed by AEC, approved by Brinkman, and submitted for

approval by Worth Group.

¶ 17 The jury ultimately found in favor of Pool & Spa on Ironshore’s

general breach of contract claim. In a special verdict addressing

this claim, the jury answered in the affirmative the following

question: “Did the defendant [Pool & Spa] and/or its

subcontractors, or anyone employed directly or indirectly by any of

them for whose acts any of them may be liable, fail to follow the

requirements in the contract between [Brinkman] and [Pool & Spa].”

But the jury also answered “No” to the next question: “Did . . .

10
Brinkman . . . substantially perform its part of the contract.” The

jury therefore determined that Ironshore didn’t prevail on its

contract claim against Pool & Spa.

¶ 18 We conclude that there was sufficient evidence supporting the

jury’s decision.3 While the contract generally referenced the Kumar

report, other evidence in the record suggested that Pool & Spa

wasn’t responsible for the design and installation of the leak

collection system, creating a factual dispute for the jury to resolve.

For example, it was undisputed that Brinkman’s request for bid and

Pool & Spa’s proposal — which reflected the eventual contract price

and was also incorporated by reference in the contract — didn’t list

3 In reaching this conclusion, we note that portions of Pool & Spa’s

answer brief addressing Ironshore’s sufficiency challenges only
include a bare laundry list of witnesses and record cites for the
testimony purportedly supporting the jury’s verdicts. Pool & Spa
doesn’t discuss the contents of the witnesses’ statements in its
brief, let alone indicate how they relate to its argument. While
Pool & Spa nonetheless prevails on this and other sufficiency
challenges raised in this appeal, we caution against this approach.
See C.A.R. 28(a)(7)(B), (b) (providing that a party’s arguments must
contain “a clear and concise discussion of the grounds” upon which
the party is relying in advancing its position, including proper
citations to the authorities and relevant parts of the record);
Brighton Sch. Dist. 27J v. Transamerica Premier Ins. Co., 923 P.2d
328, 335 (Colo. App. 1996) (noting that, as the reviewing court, we
don’t have the duty to search the record for evidence in support of a
party’s arguments), aff’d, 940 P.2d 348 (Colo. 1997).

11
those services as a separate line item. T.J. Kate, a civil structural

engineer who was qualified “as an expert in the fields of civil and

forensic engineering and swimming pool contracting,” opined that

he would have expected Brinkman’s bid to include a leak collection

system as a separate item because it was “a very specialized kind of

thing.” Indeed, the owner of Pool & Spa testified that he hadn’t

installed such a system in the past because that was considered

soil mitigation work, an area outside of his and Pool & Spa’s

expertise. He noted that Pool & Spa “do[es] not do any soil

mitigation. Zero. We don’t do leak collection systems. We don’t

overexcavate. We build the swimming pool.”

¶ 19 Moreover, Kate and another expert witness, Aaron Bagley,4

testified that the final shop drawings that AEC prepared on Pool &

Spa’s behalf didn’t contain a design for the leak collection system.

The record shows that Brinkman and Worth Group approved those

drawings after several rounds of revisions and after engaging in

extensive communications with AEC. Kate opined that because the

4 Bagley was qualified as an expert on the standard of care in

contract compliance with plans and specifications and the
reasonableness of a pool replacement.

12
drawings didn’t include the leak collection system, that feature

wasn’t part of the plans, specifications, and approved submittals

that Pool & Spa was required to follow under the contract:

Well, the pool and spa, per plans, this was a
design-build contract. And the plans were
prepared by [Pool & Spa] and its . . . engineer
[AEC]. And so those are the plans that [Pool &
Spa was] building to, and those are the plans
that they bid off of. And those are the plans
with their specs that were included as part of
those plans. That’s what they submitted back
to Brinkman and ultimately to the architect to
Worth [Group] for approval, and so that
becomes the approved submittals.

And so when you look at the plans,
specifications and approved submittals, that’s
what they are. And nowhere in there was
there any kind of leak collection system.

¶ 20 Kate further opined that Pool & Spa’s work complied with the

approved shop drawings and that Pool & Spa completed all the

services for which it was hired by Brinkman. And Justin Tuck,

Brinkman’s former project manager and an expert on “construction

management and the standard of care required for [the] design and

construction of pools,” testified that the contract provision allowing

Brinkman to correct defective work and withhold from the contract

13
price the costs associated with that work assumed that the defects

were within Pool & Spa’s original scope of work.

¶ 21 Viewing this evidence in the light most favorable to Pool & Spa

as the prevailing party, a reasonable juror could have concluded

that the leak collection system was outside of Pool & Spa’s scope of

work, and in that case, Brinkman wasn’t entitled to withhold

payment of the remaining contract price. Accordingly, we conclude

that sufficient evidence supported the jury’s determination that

Brinkman didn’t substantially perform its obligations under the

contract. See Parr, 107 P.3d at 1106; see also Air Sols., Inc. v.

Spivey, 2023 COA 14, ¶ 9 n.2 (noting that we view in the light most

favorable to the verdict the jury’s “determination of the terms of the

contract”). And because Ironshore failed to establish the

“performance” element of its breach of contract claim, there was

sufficient evidence supporting the jury’s finding in favor of Pool &

Spa on that claim. See Univ. of Denver, ¶ 46; McDonald, ¶ 50; Stan

Clauson Assocs., Inc., ¶ 9.

14
C. Ironshore’s Sufficiency Challenge
to the Negligence Verdict

¶ 22 Ironshore next contends that there was insufficient evidence

from which the jury could find that Brinkman was negligent in

connection with the pool project, and accordingly, to support the

jury’s apportionment of 85% of the fault to Brinkman. We again

disagree.

1. Applicable Law

¶ 23 To prevail on a negligence claim, a “plaintiff must show a legal

duty of care on the defendant’s part, breach of that duty, injury to

the plaintiff, and that the defendant’s breach caused the plaintiff’s

injury.” Day v. Johnson, 255 P.3d 1064, 1068-69 (Colo. 2011).

However, “Colorado is a comparative negligence jurisdiction.” Ferrer

v. Okbamicael, 2017 CO 14M, ¶ 35, superseded by statute on other

grounds, Ch. 147, sec. 1, § 13-21-111.5(1.5)(c), 2021 Colo. Sess.

Laws 863. While comparative negligence is an affirmative defense,

its purpose “is to ameliorate the harshness of the complete bar [to

recovery] resulting from common law contributory negligence.”

Gordon v. Benson, 925 P.2d 775, 777 (Colo. 1996) (quoting

Montgomery Elevator Co. v. Gordon, 619 P.2d 66, 70 (Colo. 1980));

15
Dickinson v. Lincoln Bldg. Corp., 2015 COA 170M, ¶ 25.

Accordingly, section 13-21-111(1), C.R.S. 2024, provides that a

plaintiff who was negligent may nonetheless recover damages if the

plaintiff’s negligence was less than the negligence of the person

against whom recovery is sought. But if the plaintiff’s proportion of

negligence was equal to or greater than the negligence of the person

against whom recovery is sought, then the court must enter a

judgment for the defendant. § 13-21-111(3).

2. There Was Sufficient Evidence to Support the Jury’s Finding
that Brinkman Was 85% Comparatively Negligent

¶ 24 Ironshore argues that Pool & Spa presented insufficient

evidence supporting its affirmative defense that Brinkman was

comparatively negligent with respect to the design and installation

of the pool and spa. See Diodosio, 841 P.2d at 1057 (“The burden of

proving an affirmative defense rests upon the defendant asserting

the defense.”). “And without sufficient evidence to even justify a

negligence finding,” Ironshore further contends, “the jury could not

properly apportion 85% (or any) responsibility to Brinkman.”

Specifically, Ironshore asserts that Pool & Spa failed to introduce

expert testimony about the duty of care that Brinkman was

16
required to exercise during the pool project, much less testimony

showing that Brinkman breached that duty.

¶ 25 It’s true that Pool & Spa didn’t present expert testimony

stating that Brinkman, in Ironshore’s words, “violated industry or

professional standards of care in its work regarding the swimming

pool or surrounding areas.” But Ironshore doesn’t provide any

compelling argument or authority indicating why such testimony

was required under the circumstances of this case.

¶ 26 For example, Ironshore’s reliance on Holland v. Green

Mountain Swim Club, Inc., 470 P.2d 61, 63 (Colo. App. 1970) (not

published pursuant to C.A.R. 35(f)), in support of its argument is

misplaced. In that case, a division of this court upheld the trial

court’s causation finding regarding a defective pool because that

finding was supported by expert testimony. The division didn’t

address the applicable duty of care, let alone hold that such duty

may only be proved through expert testimony as Ironshore

contends. To the contrary, the division merely held that the expert

testimony supported the trial court’s finding.

¶ 27 Likewise, Ironshore’s reliance on BSLNI, Inc. v. Russ T.

Diamonds, Inc., 2012 COA 214, is unavailing. In BSLNI, a division

17
of this court rejected the defendant’s argument that the plaintiff

was required “to prove the standard of care for concrete cutters by

expert testimony because the standard of care involve[d]

consideration of industry standards and other considerations that

[were] technical and outside the common knowledge and experience

of laypersons.” Id. at ¶ 21. The division reasoned that “any

industry standards or practices were irrelevant” because the

plaintiff was asserting a breach of contract claim and the contract

specified the defendant’s duty of care. Id. at ¶ 22. However, the

BSLNI court didn’t address the issue of whether a party must

present expert testimony to establish the duty of care involving

industry standards or practices. Thus, we don’t see how this case

supports Ironshore’s position.

¶ 28 Regardless, our review of the record reveals that there was

sufficient evidence, including expert testimony, from which a

reasonable juror could have concluded what the duty of care was

and that Brinkman breached it. Tuck testified that as a general

contractor, Brinkman’s role was “to oversee the design and

construction of the pool.” He also testified that Brinkman was

aware that a leak collection system was necessary “to reduce the

18
potential for leak-induced post-construction heave” given that the

Kumar report had indicated that the soil had “potential for swell

and movement, and that . . . introducing water [was] going to

increase that risk.” Tuck stated that Brinkman was “responsible for

the pool” along with Pool & Spa and admitted that Brinkman

should have compared the shop drawings with the requirements of

the Kumar report.

¶ 29 Yet, as noted above, the record shows that Brinkman didn’t

explicitly request the leak collection system discussed in the Kumar

report, and along with Worth Group, it approved the shop drawings

that didn’t include that system. True, the record also shows that

Brinkman’s project manager included the relevant portions of the

report in the following email he sent to Pool & Spa’s owner: “Here is

the GEO tech report for the pool. I am not sure if you have seen

this yet, but here it is for your reference.” However, by that time,

Brinkman had already signed off on the pool design that didn’t

provide for the leak collection system. And only three days after the

email, Worth Group also approved the shop drawings without the

recommended feature.

19
¶ 30 Kate opined that under these circumstances, Brinkman failed

to satisfy its obligations in ensuring the pool had the leak collection

system:

Brinkman’s primary responsibility or thing
they missed was they never commissioned
anybody to do the work, right. They never bid
it out. They never assigned that scope of work
to a contractor. They never got pricing for it.
They never hired anybody to do the work, and
so it never got done.

And he opined that Brinkman specifically failed to exercise

reasonable care in reviewing and approving the shop drawings:

I mean, if [Brinkman] had expected that Pool &
Spa was going to do that work, then when
Pool & Spa submitted those shop drawings of
the work they were going to do, and there was
no leak collection system there, then that
would have been when Brinkman [was]
supposed to say, hey, you guys, you’re
supposed to do this leak collection system. Go
get that on these drawings before we approve
them.

But that never happened. And even after
Worth Group specifically pointed to it and
said, Brinkman, you need to verify that
everything’s cool with the geotechnical report,
it still didn’t happen. And so [Brinkman]
missed it. They just -- they missed getting
that scope of work assigned to anybody or
hiring anybody to do it.

20
¶ 31 When viewed in the light most favorable to the verdict, the

foregoing record supported the jury’s finding that Brinkman was

negligent in handling the pool project. See Parr, 107 P.3d at 1106.

As a result, we necessarily reject Ironshore’s claim that the jury

erred by apportioning 85% percent of the fault to Brinkman. There

is ample evidence in this record from which the jury could have

assigned more responsibility to Brinkman than to Pool & Spa.

¶ 32 In conclusion, Ironshore’s sufficiency challenge to the jury’s

negligence verdict fails.

D. Ironshore’s Challenges to the Indemnity
Clause Verdict Fail

¶ 33 Ironshore contends that the jury erred by determining that

Pool & Spa didn’t breach the indemnity clause in its contract with

Brinkman because that determination lacked sufficient evidentiary

support and was inconsistent with the jury’s verdicts on the general

breach of contract and negligence claims. We’re not persuaded.

¶ 34 The indemnity clause was set forth in article 9.1.1 of the

contract:

To the fullest extent permitted by law, [Pool &
Spa] shall defend, indemnify and hold
harmless [Brinkman], [Brinkman’s] other
subcontractors, the Architect/Engineer, the

21
[hotel] Owner and their agents, consultants
and employees (the Indemnitees) from all
claims for bodily injury and property damage
that may arise from the performance of the
Subcontract Work to the extent of the
negligence attributed to such acts or omissions
by [Pool & Spa], [Pool & Spa’s] subcontractors
or anyone employed directly or indirectly by
any of them or by anyone for whose acts any of
them may be liable.

¶ 35 In finding that Pool & Spa didn’t violate this provision, the jury

answered “No” to the following question in Special Verdict Form D:

“Did the defendant [Pool & Spa] fail to defend, indemnify, and hold

harmless . . . Brinkman . . . for the damage attributed to [Pool &

Spa], its subcontractors, or anyone employed directly or indirectly

by any of them for whose acts any of them may be liable.”

(Emphasis added.) Jury instruction #16 clarified what the italicized

language above referred to by stating that for Ironshore to prevail

on this claim, the jury must find, among other things, that Pool &

Spa “failed to defend, indemnify, and hold harmless Brinkman for

the damage attributed to Pool & Spa for its failure to install the leak

collection system.” (Emphasis added.) The verdict form and the

jury instruction together indicated that Pool & Spa’s duties under

the indemnity clause were triggered only to the extent Pool & Spa

22
was negligent by failing to install the leak collection system in the

pool.

¶ 36 We conclude that the jury could have determined that Pool &

Spa wasn’t required to indemnify Brinkman for the losses related to

the missing leak collection system for two reasons. First, the jury

could have found that while Pool & Spa breached the contract in

some other way, it wasn’t responsible for the design and installation

of the leak collection system. After all, Pool & Spa argued that point

to the jury, and as noted above, it presented sufficient evidence

from which the jury could have concluded that those services

weren’t within its scope of work.

¶ 37 Second, recall that the jury attributed 85% of the fault to

Brinkman and only 15% of the fault to Pool & Spa. That

determination — which we uphold in this appeal — precluded

Ironshore from recovering any damages on its negligence claims

under the comparative negligence statute and the instruction that

was given to the jury. In pertinent part, the instruction provided

that if the jury found that

[Brinkman] and the defendant, [Pool & Spa],
and [Worth Group] as [a] designated nonparty,
were negligent and/or professionally negligent

23
and that the negligence of [Brinkman] was
equal to or greater than the combined
negligence of the defendant and the designated
nonparty, then [Brinkman] will not be allowed
to recover.

See § 13-21-111(1) (precluding recovery when a party’s negligence

was equal to or greater than the negligence of the person from

whom damages are sought).

¶ 38 Therefore, the jury’s comparative fault determination also

could have supported its finding that Pool & Spa wasn’t required to

indemnify, defend, and hold Brinkman harmless. Specifically,

because the jury found that Pool & Spa didn’t have to pay any

damages in connection with its negligent conduct, the jury

reasonably could have found that Pool & Spa didn’t breach the

indemnity clause by not paying Ironshore what it was entitled to

recover, which was nothing.

¶ 39 Finally, for the same two reasons, we conclude that the jury’s

verdict on this claim wasn’t inconsistent with its findings that Pool

& Spa breached the contract and was 15% negligent. Under these

circumstances, then, we have no basis to disturb the jury’s verdict

on Ironshore’s breach of the indemnity clause claim.

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E. The Jury’s Award of No Damages Was
Consistent with Its Other Findings

¶ 40 Ironshore contends that the jury erred by not awarding any

damages because after the jury found that Pool & Spa breached the

contract and was negligent in the performance of the pool project, it

was required to award Ironshore damages “within the range of the

evidence.” Ironshore asserts that based on the evidence presented

at trial, that range was from about $15,100, the amount Pool & Spa

argued that Brinkman would have spent had it properly mitigated

its damages, to about $647,000, the amount reflecting the total

replacement costs. Ironshore argues that the jury reasonably could

have awarded damages within this range and that its zero award

wasn’t supported by the evidence.

¶ 41 While Ironshore frames this issue as both a challenge to the

sufficiency of the evidence and a challenge to the consistency of the

jury’s verdicts, the resolution of the issue only implicates the

question of whether the jury’s award of no damages was

inconsistent with its findings that Pool & Spa breached the contract

and was negligent. Answering that question requires us to review

the jury instructions, the special verdict forms, and the evidence

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that was presented to the jury in connection with Ironshore’s

general breach of contract and negligence claims. See Hock, 876

P.2d at 1259. After doing so, we conclude that the jury’s verdicts

on those claims weren’t inconsistent.

¶ 42 The jury completed two special verdict forms with respect to

Ironshore’s general breach of contract claim. On Special Verdict

Form C, as we note above, the jury found that Pool & Spa breached

its contract with Brinkman. But the jury also found with sufficient

evidentiary support that Brinkman failed to substantially perform

on its obligations under the contract. After the jury made that

finding, Special Verdict Form C required it to find in favor of Pool &

Spa and to fill out a separate Special Verdict Form E. In turn, the

latter verdict form simply stated that Ironshore wasn’t entitled to a

damages award.5 Thus, the jury’s award of no damages on the

general breach of contract claim was consistent with its finding that

Ironshore didn’t prevail on that claim because Brinkman failed to

substantially perform under the contract.

5 Ironshore didn’t object to the special verdict forms in the trial

court and doesn’t argue on appeal that they were improper.

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¶ 43 As for the negligence claims, the jury filled out Special Verdict

Form B. It answered “Yes” to the questions about whether Pool &

Spa was negligent and professionally negligent, and whether

Ironshore suffered damages as a result of Pool & Spa’s negligent

conduct. However, the jury also decided that Brinkman was

negligent and that its negligence was “a cause . . . of [its own]

damages and losses.” And the jury found Brinkman 85% at fault

for those damages. So the jury found that the total amount of

Ironshore’s general damages was zero.

¶ 44 This last finding is consistent with the jury’s apportionment of

comparative fault between the parties. Again, the jury instruction

addressing comparative negligence provided that Ironshore wouldn’t

be entitled to recover any damages if the jury were to determine

that Ironshore’s proportion of negligence was equal to or greater

than the negligence of Pool & Spa.6 Because the jury determined

that Brinkman was more negligent than Pool & Spa, there is no

error in the jury also finding that Ironshore’s general damages were

zero dollars. This was consistent with the jury instruction and the

6 Ironshore also didn’t object to this jury instruction at trial.

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statute providing for no recovery of damages under those

circumstances. See § 13-21-111(1); see also City of Westminster v.

Centric-Jones Constructors, 100 P.3d 472, 486 (Colo. App. 2003) (“A

jury verdict will not be disturbed for inconsistency if a review of the

record indicates any basis for the verdict.”). Thus, we also don’t

discern any inconsistencies in the jury’s special verdict on the

negligence claims.

¶ 45 In sum, we conclude that the jury didn’t err by awarding

Ironshore no damages in connection with its general breach of

contract and negligence claims.

III. Appellate Costs

¶ 46 Lastly, we grant Pool & Spa’s request for appellate costs. See

C.A.R. 39(a)(2) (“[I]f a judgment is affirmed, costs are taxed against

the appellant.”). Pool & Spa may pursue those costs in the trial

court by following the procedure set forth in C.A.R. 39(c)(2).

IV. Disposition

¶ 47 The judgment is affirmed.

JUDGE WELLING and JUDGE SCHUTZ concur.

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