Insight Surgery v. WSi Healthcare

24CA0199 Insight Surgery v WSi Healthcare 11-26-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0199
Douglas County District Court No. 19CV98
Honorable Andrew C. Baum, Judge

Insight Surgery Center, LLC,

Plaintiff-Appellant and Cross-Appellee,

v.

WSi Healthcare Personnel, Inc.,

Defendant-Appellee and Cross-Appellant.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division II
Opinion by JUDGE FOX
Brown and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 26, 2025

McConnell Van Pelt, LLC, Michael T. McConnell, Jonathan J. Corrigan, Kellsey
A. Hansen, Denver, Colorado, for Plaintiff-Appellant and Cross-Appellee

Hershey Decker Drake, C. Todd Drake, Kari M. Hershey, Brenna Shannon,
Lone Tree, Colorado, for Defendant-Appellee and Cross-Appellant
¶1 Insight Surgery Center, LLC (Insight) appeals the district

court’s order dismissing its third-party complaint against WSi

Healthcare Personnel, Inc. (WSi). We reverse and remand for

further proceedings. WSi cross-appeals the court’s order denying

its motion for a directed verdict, which we affirm.

I. Background

A. The Underlying Action and Third-Party Complaint

¶2 This appeal arises from a third-party complaint in an

underlying wrongful death suit. In October 2017, the decedent

underwent a liposuction procedure at Insight’s facility and died the

following day. WSi, a healthcare personnel staffing agency,

provided medical staff to Insight. Lorez Hinson, a WSi nurse, was

one of the nurses who treated the decedent at Insight’s post

anesthesia care unit (PACU).

¶3 In 2019, the decedent’s estate (the Estate) brought a wrongful

death action against several individuals and entities. The Estate

later dismissed all parties except Insight and amended its complaint

to allege that Insight was liable for the negligence of several nurses,

including Hinson. Because Hinson was a WSi employee, Insight

asked WSi to defend and indemnify it pursuant to an agreement

1
between WSi and Insight’s predecessor, Renewal Surgery Center,

LLC (Renewal). WSi refused, asserting that Insight was not a party

to the agreement. Insight later filed a third-party complaint against

WSi alleging breach of contract and seeking contribution, defense,

and indemnification in the wrongful death action.

B. The Relevant Agreements

¶4 Insight’s third-party claims implicated three contracts. First,

under a 2014 “Client Agreement” (2014 Agreement), WSi provided

healthcare personnel to Renewal via three possible staffing

arrangements: a “Temp to Hire Option,” a “Direct Hire Option,” and

a “PRN Option.”1 The 2014 Agreement also listed hourly rates for

“OR nurses,” “PACU nurses,” “scrub techs,” and “sterile

processors.” And the 2014 Agreement automatically renewed each

year, allowed written modifications, bound the parties’ successors,

and provided that it “constitute[d] the entire understanding and

agreement between the parties . . . and supersede[d] all prior

agreements, arrangements and understanding . . . with respect to

1 Although not defined in the 2014 Agreement, a PRN is a “per

request needed” or “as needed” employee. An “OR” nurse is an
operating room nurse.

2
its subject matter” (merger clause). As discussed further in Part III,

the 2014 Agreement also included an indemnification clause (the

basis for Insight’s third-party complaint) and a description of the

parties’ respective responsibilities.

¶5 In 2016, WSi and Renewal executed a second “Client

Agreement” (2016 Agreement). It was significantly shorter and

lacked many of the 2014 Agreement’s general terms, such as

clauses addressing merger, successor liability, indemnification,

venue, modification, and insurance. Like the 2014 Agreement, it

outlined the temp to hire, direct hire, and PRN options, but the

2016 Agreement listed the hourly rate only for “Surg Techs” (or

surgical technicians).

¶6 Finally, Renewal and Insight executed a July 2017 Asset

Purchase Agreement (APA) in which Renewal sold Insight “all of its

core assets and assign[ed] all of its core contracts used in the

operation of its surgery center.” Renewal agreed “to sell, assign,

transfer, convey and deliver to Insight” Renewal’s rights and

obligations under “the Assumed Contracts,” which were listed in an

3
attachment to the APA and included a “WSi Healthcare Personnel

Agreement Dated August 29, 2016.”2

C. WSi’s Summary Judgment Motion and the Jury Verdict

¶7 Because Insight’s third-party claims relied on the 2014

Agreement’s indemnity clause, Insight moved for a determination of

law that Renewal assigned the 2014 Agreement to Insight under the

APA. The district court denied the motion, concluding that whether

the 2014 Agreement applied to Insight was an issue of fact for a

jury to determine.

¶8 Because Insight was not a party to the 2014 Agreement — and

the APA explicitly assigned only the 2016 Agreement (which lacked

an indemnity provision) — WSi moved for summary judgment,

arguing that Insight lacked privity of contract to invoke the

indemnity clause. It argued that the APA assigned only the 2016

Agreement, not the 2014 Agreement, and Insight could not use

extrinsic evidence (the 2014 Agreement) “to create ambiguities in

2 Although the 2016 Agreement was to “be observed beginning”

August 26, it was executed on August 29 and August 31. The
parties appear to agree that the WSi contract referenced in the APA
is the 2016 Agreement.

4
otherwise unambiguous contracts” (the 2016 Agreement and the

APA).

¶9 The district court denied WSi’s motion. It agreed that the APA

“unambiguously assign[ed] only the 2016 Agreement . . . to Insight,”

but it concluded that this did not resolve “whether the 2016

Agreement was a separate contract that replaced the 2014

Agreement [i.e., a novation3] or . . . simply amended the 2014

Agreement.” The court noted that the 2016 Agreement lacked a

merger clause (the inclusion of which could support a novation) but

also lacked other language suggesting it modified an earlier

agreement. The court also compared the 2014 and 2016

Agreements, noting, for example, that the 2014 Agreement allowed

amendments and automatically renewed unless terminated by

written notice, but nothing in the 2016 Agreement suggested that it

amended or terminated the 2014 Agreement. Accordingly, the court

found the 2016 Agreement facially “ambiguous as to whether it is a

standalone contract or an amendment/codicil.”

3 A novation occurs when one contract is extinguished and

substituted with a new contract. Oldham v. Pedrie, 2015 COA 95,
¶ 32.

5
¶ 10 After concluding that the 2016 Agreement was ambiguous, the

court accepted extrinsic evidence to determine WSi and Renewal’s

intent in 2016. But because this inquiry was factual, it concluded

that a jury would determine whether the 2016 Agreement, which

the APA assigned to Insight, was a novation “that entirely

superseded the 2014 Agreement” or whether it “amended or

supplemented the 2014 Agreement.” If the jury found that the

2016 Agreement amended the 2014 Agreement, the 2014

Agreement remained effective and applied to Insight, and Insight

could pursue its third-party claims. But if there was a novation,

the 2014 Agreement would not apply to Insight.

¶ 11 On the second day of a bifurcated jury trial, the Estate moved

for a directed verdict, which WSi joined. The court declined to enter

a directed verdict, incorporating its order denying WSi’s summary

judgment motion. At the trial’s conclusion, the jury found that the

2016 Agreement was not a novation that superseded the 2014

Agreement; rather, it was an amendment.

D. The Court Dismisses the Third-Party Complaint

¶ 12 On September 1, 2023, after the jury’s verdict but before a

September 7 status conference, the Estate amended its complaint

6
to add a negligent hiring and supervision claim against Insight. As

discussed further in Part III, during the September 7 status

conference, the court dismissed Insight’s third-party complaint. It

held that Insight’s vicarious liability for Hinson’s conduct abrogated

WSi’s duty to defend and found the indemnity provision void as

against public policy. Insight asked the court to reconsider, which

the court denied. The underlying wrongful death action was

dismissed in February 2024 after Insight and the Estate settled.

E. This Appeal

¶ 13 Insight appeals the court’s order dismissing its third-party

complaint, and WSi cross-appeals the court’s denial of its motion

for a directed verdict. We address the cross-appeal first because it

requires us to consider whether the 2014 Agreement applied to

Insight. Because we reject WSi’s contentions, we then turn to

Insight’s appeal. And we conclude that the court erred in its

interpretation of the 2014 Agreement’s indemnity provision and by

concluding that it is void as against public policy.

II. WSi’s Cross-Appeal

¶ 14 WSi initially challenged the court’s order denying its motion

for summary judgment, which — as Insight noted — is not a final,

7
appealable order. See Trudgian v. LM Gen. Ins. Co., 2024 COA 87,

¶ 37 (dismissing a cross-appeal challenging an order denying a

summary judgment motion). However, as Insight also noted, the

district court incorporated its order denying summary judgment

into its order denying WSi’s motion for a directed verdict.

Therefore, we consider the court’s rationale for denying summary

judgment as it applies to its denial of the directed verdict.

¶ 15 We address WSi’s arguments on cross-appeal as follows: First,

we consider the district court’s conclusion that the 2016 Agreement

was ambiguous and address whether the court improperly

considered extrinsic evidence to reach that conclusion. We next

consider whether the court properly denied the motion for directed

verdict and whether Insight’s third-party complaint could proceed

following the jury’s finding that the 2016 Agreement amended the

2014 Agreement. We perceive no error.

A. Standard of Review

¶ 16 We review orders denying a motion for directed verdict de

novo. Gilley v. Oviatt, 2025 COA 27, ¶ 12. Directed verdicts are

generally disfavored and are appropriate only “[i]f there is no

evidence to support an element of a claim.” Id. at ¶¶ 11-12. In

8
making this determination, “[t]he . . . court must view the evidence

in the light most favorable to the nonmoving party.” Id. at ¶ 11. We

also review contract interpretation de novo, including whether a

contract is ambiguous. Gagne v. Gagne, 2014 COA 127, ¶ 50.

B. The District Court Could Consider Extrinsic Evidence to Find
the 2016 Agreement Ambiguous

1. Applicable Law

¶ 17 “A contract is ambiguous when it is reasonably susceptible to

more than one meaning.” Pub. Serv. Co. of Colo. v. Meadow Island

Ditch Co. No. 2, 132 P.3d 333, 339 (Colo. 2006). To determine if a

contract is ambiguous, we typically “examin[e] the instrument’s

language and constru[e] that language in harmony with the plain

and generally accepted meaning of the words employed.” French v.

Centura Health Corp., 2022 CO 20, ¶ 25. Courts generally do not

consider extrinsic evidence (evidence beyond the four corners of the

contract) unless a contract is facially ambiguous. Id. However, as

with most rules, there are exceptions.

9
¶ 18 For example, courts sometimes conditionally admit extrinsic

evidence to determine whether a contract is ambiguous.4 See

Pepcol Mfg. Co. v. Denv. Union Corp., 687 P.2d 1310, 1314 n.3 (Colo.

1984) (explaining that courts may conditionally admit extrinsic

evidence); E. Ridge of Fort Collins, LLC v. Larimer & Weld Irrigation

Co., 109 P.3d 969, 974 (Colo. 2005) (describing a shift away from

the “rigid ‘four corners’ rule” (citation omitted)); Meadow Island, 132

P.3d at 339 (noting that conditional extrinsic evidence does not

include the parties’ expressions of intent).

¶ 19 Similarly, under the parol evidence rule, evidence of a prior

agreement is admissible to interpret a later agreement in certain

circumstances. See LTCPRO, LLC v. Johnson, 2024 COA 123,

¶¶ 22-26; Restatement (Second) of Contracts § 213 (Am. L. Inst.

1981). “When an agreement is completely integrated, evidence of

prior agreements may not be used to contradict, vary, or

supplement its terms.” Johnson, ¶ 22. If an agreement is only

partially integrated, evidence of a prior agreement may

4 Colorado Supreme Court opinions take conflicting positions on

this issue. See, e.g., Am. Fam. Mut. Ins. Co. v. Hansen, 2016 CO 46,
¶ 4 (“[A]mbiguity must appear in the four corners of the document
before extrinsic evidence can be considered.”).

10
“supplement” but not contradict the partially integrated agreement’s

terms.5 Merk v. Jewel Food Stores Div. of Jewel Cos., 945 F.2d 889,

892 (7th Cir. 1991); 11 Richard A. Lord, Williston on Contracts

§ 33:22, Westlaw (4th ed. database updated May 2025).

¶ 20 To determine the level of integration, “‘wide latitude must be

allowed for inquiry into circumstances bearing on the intention of

the parties’ . . . when the contract itself does not unambiguously

answer that question.” Johnson, ¶ 41 (citation omitted);

Restatement (Second) of Contracts § 213 cmt. b (instructing courts

to consider “all relevant evidence,” including both agreements).

Thus, courts may consider two agreements to decide if one of them

is fully or partially integrated (or ambiguous as to integration). See

Johnson, ¶¶ 24, 30; Restatement (Second) of Contract § 210 cmt. b

(“[A] writing cannot of itself prove its own completeness . . . .”).

¶ 21 Moreover, the parol evidence rule “does not relate to future

agreements and does not bar extrinsic evidence that proves that the

parties subsequently modified their integrated writing.” Reynolds v.

5 Complete and partial integration reflect the extent to which the

parties intended their agreement to be a complete and exclusive
expression of the terms. See United States v. Rockwell Int’l Corp.,
124 F.3d 1194, 1199 (10th Cir. 1997).

11
Gentry Fin. Corp. & Royal Mgmt., 2016 UT App 35, ¶ 18 (citation

omitted); Beggerly v. Gbur, 169 Cal. Rptr. 166, 171 (Ct. App. 1980)

(same). Similarly, “[p]arol evidence is admissible when determining

whether a novation has occurred.” 30 Williston on Contracts

§ 76:42; see Oldham, ¶ 30 (“[P]roof of novation may be established

by evidence of an express understanding to this effect or by

circumstances showing such assent.”).

2. Analysis

¶ 22 WSi contends that the district court erroneously considered

the 2014 Agreement to determine the 2016 Agreement’s ambiguity.

But WSi’s argument construes the issue too narrowly. Because the

APA assigned the 2016 Agreement to Insight, Insight argued that

the assignment included the 2014 Agreement (as modified by the

2016 Agreement). Thus, the question before the court was not

limited to examining the 2016 Agreement; the court had to

determine whether the 2016 Agreement amended or replaced the

2014 Agreement.

¶ 23 WSi asserts that the district court could not consider Insight’s

argument that the 2016 Agreement amended the 2014 Agreement

unless it found “ambiguity within the 2016 Agreement itself.” This

12
argument misses the mark for several reasons. First, WSi

conceptually flips the parol evidence rule, which does not prohibit

extrinsic evidence to determine whether an earlier agreement was

amended or replaced by a later agreement. Reynolds, ¶ 18

(amendment); 30 Williston on Contracts § 76:42 (novation). Second,

notwithstanding the parol evidence rule, the court could

conditionally consider extrinsic evidence, other than the parties’

statements of intent, to determine whether the 2016 Agreement was

ambiguous as to whether it amended or supplanted the 2014

Agreement. E.g., Meadow Island, 132 P.3d at 339.

¶ 24 Finally, although the court did not explicitly consider whether

the 2016 Agreement was fully or partially integrated, courts often

apply this framework to determine if evidence of a prior agreement

can be used to interpret a later agreement. See, e.g., Glover v. Innis,

252 P.3d 1204, 1208 (Colo. App. 2011). And the court could

consider extrinsic evidence to decide if the 2016 Agreement was

fully or partially integrated. Johnson, ¶¶ 24, 30; Restatement

(Second) of Contracts § 213 cmt. b. If it was only partially

integrated, the 2014 Agreement was then admissible to add to, but

not contradict, the 2016 Agreement’s terms. Merk, 945 F.2d at 892.

13
¶ 25 The court effectively engaged in this analysis when it

compared the two agreements and found that the 2016 Agreement

lacked a merger clause and other terms present in the 2014

Agreement that would suggest full integration. See Johnson, ¶¶ 22,

27 (explaining that merger clauses often indicate complete

integration); In re Indian Motorcycle Litig., 307 B.R. 7, 12 (D. Mass.

2004) (finding a later agreement not fully integrated because it

lacked terms from an earlier agreement that suggested full

integration, including venue, successor liability, and severability).

¶ 26 Under several legal principles, the district court could consider

extrinsic evidence to find the 2016 Agreement ambiguous.6 It also

did not err by finding the 2016 Agreement ambiguous as to whether

it replaced or amended the 2014 Agreement. And its ambiguity

finding was based on the contracts’ terms, not the parties’

6 To the extent WSi suggests that the 2016 Agreement was a

separate contract that did not supplement or amend the 2014
Agreement, this argument undercuts its contention that extrinsic
evidence was inadmissible. See Rosemann v. Roto-Die, Inc., 377
F.3d 897, 901 (8th Cir. 2004) (“[T]he parol evidence rule does not
bar evidence of ‘a wholly separate and independent contract that
did not inherently conflict with the written [integrated] agreement.’”
(citation omitted)); Restatement (Second) of Contracts §§ 213 cmt. c,
216 cmt. c (Am. L. Inst. 1981).

14
statements of intent. See Fed. Deposit Ins. Corp. v. Fisher, 2013 CO

5, ¶ 12 (“[T]he fact that the parties differ in their understanding of

the agreement does not create an ambiguity.”).

¶ 27 First, the 2016 Agreement’s omission of terms present in the

2014 Agreement suggested that the parties did not intend to replace

the 2014 Agreement. See Indian Motorcycle Litig., 307 B.R. at 12.

Next, the 2016 Agreement referenced only surgical technicians, but

the third-party dispute involved a PACU nurse, a role addressed

only in the 2014 Agreement. However, the 2016 Agreement did not

reference the 2014 Agreement or indicate an intent to terminate it.

Therefore, the 2016 Agreement was “reasonably susceptible to more

than one meaning.” Meadow Island, 132 P.3d at 339. And the

meaning of an ambiguous contract “is generally an issue of fact to

be determined in the same manner as other disputed factual

issues.” E. Ridge of Fort Collins, LLC, 109 P.3d at 974; see also

Oldham v. Pedrie, 2015 COA 95, ¶ 30 (“Whether there has been a

novation is ordinarily a question of fact . . . .”). So a jury could (and

did) determine whether the 2016 Agreement replaced or amended

the 2014 Agreement.

15
C. The Court Properly Denied the Motion for Directed Verdict and
Allowed Insight’s Third-Party Claims to Proceed

¶ 28 WSi next argues that the court erroneously concluded that

Insight’s third-party claims could proceed if the jury found that the

2016 Agreement amended the 2014 Agreement. Specifically, it

contends that the 2014 Agreement could not apply to Insight unless

Insight also proved that it was Renewal’s successor or assignee

under the 2014 Agreement. WSi further asserts that the 2016

Agreement did not amend the 2014 Agreement, which we construe

as an argument that court erred by denying WSi’s motion for a

directed verdict. First, we conclude that the court properly denied a

directed verdict. Second, we reject WSi’s argument that Insight’s

third-party claims could proceed only after it had proved it was

Renewal’s successor or assignee.

1. The Directed Verdict

¶ 29 Because the 2016 Agreement was ambiguous, the jury could

consider extrinsic evidence to decide if it was a novation or

amendment. E. Ridge of Fort Collins, LLC, 109 P.3d at 974. This

included, for example, “circumstances surrounding the transaction”

and the parties’ conduct before the controversy. Id.

16
¶ 30 The jury heard evidence that, on August 26, 2016 — the first

date the 2016 Agreement was to “be observed” — a WSi employee

emailed Insight, “I have attached our new bill rates. . . . If

agreeable, [please] sign and return. . . . [W]e need to . . . pay higher

wages so that we have a larger pool of surg techs available.” WSi’s

chief executive officer (CEO) also testified that “surgical tech[s] and

scrub tech[s] are the same thing” and that WSi provided surgical

technicians to Renewal before 2016. Thus, although the 2014

Agreement included “scrub tech[s]” and the 2016 Agreement

included “surg tech[s],” they addressed the same position.

Together, this evidence supported Insight’s argument that the 2016

Agreement amended the 2014 Agreement, including the hourly rate

for surgical technicians.

¶ 31 Next, although PACU nurses were listed only in the 2014

Agreement, WSi’s CEO testified that WSi provided PACU nurses to

Renewal and Insight after 2016.7 Similarly, only the 2014

7 We also reject WSi’s argument that the addendum to the 2016

Agreement, which listed different types of staff that WSi could
provide, was evidence that the 2016 Agreement encompassed PACU
nurses and other WSi personnel. WSi’s CEO testified that this
addendum was effectively a marketing material.

17
Agreement required proof of liability insurance, but WSi submitted

liability insurance certificates after 2016. WSi’s CEO testified that

WSi also sent insurance certificates upon request, regardless of any

contractual obligation, but conflicting evidence differs from no

evidence. See Smith v. Mehaffy, 30 P.3d 727, 731 (Colo. App. 2000).

Thus, evidence that WSi and Renewal (later Insight) continued to

perform under the 2014 Agreement after entering into the 2016

Agreement supported the amendment argument. See E. Ridge of

Fort Collins, LLC, 109 P.3d at 974 (inferring intent from the parties’

conduct).

¶ 32 Finally, the jury could infer from the agreements themselves

that the 2016 Agreement was meant to amend, rather than replace,

the 2014 Agreement. See Indian Motorcycle Litig., 307 B.R. at 12

(finding an amendment in similar circumstances because “[i]t [was]

highly improbable that the parties intended to eliminate” terms

from the later agreement that were present in the earlier agreement

“without any mention of that intent”). WSi relies on evidence

presented at trial that Renewal’s counsel never received the 2014

Agreement when drafting the APA, and Renewal and Insight

explicitly chose which contracts to assign in the APA, which did not

18
include the 2014 Agreement. Thus, WSi argues, there was no

evidence that Insight was Renewal’s successor or assignee. We

reject this contention. First, the question at trial concerned the

2016 and 2014 Agreements, not the APA. Second, as we explain

below, the 2014 Agreement could apply to Insight even if it was not

Renewal’s successor or assignee.

¶ 33 Viewing the evidence in a light most favorable to Insight, there

was evidence to support its claim that the 2016 Agreement

amended the 2014 Agreement such that the court properly denied a

directed verdict in WSi’s favor. See Gilley, ¶¶ 11-12.

2. The Third-Party Claims Could Proceed from the Jury Verdict

¶ 34 WSi dedicates much of its cross-appeal to arguing that the

2014 Agreement cannot apply to Insight unless (1) the APA directly

assigned the 2014 Agreement or (2) Insight was Renewal’s

successor or assignee under the 2014 Agreement. In other words,

WSi suggests that the jury’s verdict — that the 2016 Agreement

amended the 2014 Agreement — was legally insufficient for the

2014 Agreement to apply to Insight. We are not persuaded.

¶ 35 First, WSi contends that the APA unambiguously assigned

only the 2016 Agreement because the APA made clear that it was

19
assigning to Insight only the assumed contracts, which did not

include the 2014 Agreement. But WSi overlooks “a legal principle

[that] is so basic that it is nearly intuitive, and is stated

infrequently”:

Modifications do not necessarily abrogate the
original contract entirely; indeed, the terms of
the old contract are still to be followed so far
as not changed or as inconsistent with the new
terms, and the governing contract may be said
to be composed of the new terms and the
unchanged terms of the old.

Marine Transp. Lines, Inc. v. Int’l Org. of Masters, Mates & Pilots, 696

F. Supp. 1, 16 (S.D.N.Y. 1988) (emphasis added) (quoting Robinson

v. Crosson, 368 P.2d 791, 792 (Colo. 1962)), aff’d, 878 F.2d 41 (2d

Cir. 1989).

¶ 36 A modified contract includes the modified terms and any

original terms consistent with the modification. E.g., Chavarria v.

Bruce Nagel & Partners Architects, P.C., 220 N.Y.S.3d 57, 61 (App.

Div. 2024) (“[M]odification of a contract results in the creation of a

new contract between the parties, which supplants only the

provisions of the original contract affected by the modification while

leaving the unaffected provisions intact.”); Ass’n Res., Inc. v. Wall, 2

20
A.3d 873, 902 (Conn. 2010) (“The contract as modified becomes a

new contract between the parties.” (citation omitted)).

¶ 37 WSi treats the two agreements as entirely separate contracts.

But because the 2016 Agreement amended the 2014 Agreement,

the new contract became the 2014 Agreement as modified by the

2016 Agreement. Wall, 2 A.3d at 902. In turn, the APA’s

assignment of the 2016 Agreement included the 2014 Agreement as

modified by the 2016 Agreement. See id. Therefore, the 2014

Agreement applied to Insight regardless of whether it was

designated as Renewal’s successor or assignee. We also reject

WSi’s reliance on the APA’s assurance that the assumed contracts

had not been modified; the 2014 Agreement, which was not an

assumed contract, was modified.

¶ 38 Thus, the district court did not err by concluding that Insight’s

third-party claims, which were based on the 2014 Agreement, could

proceed from the jury’s finding that the 2016 Agreement amended

the 2014 Agreement.

III. Insight’s Appeal

¶ 39 We now turn to Insight’s appeal, which challenges the district

court’s order dismissing its third-party complaint. Insight first

21
contends that the court erred by sua sponte dismissing its

complaint without providing an opportunity for argument and

response. Insight also argues that the court erred in its

interpretation of the 2014 Agreement’s indemnity provision and by

concluding that it was void as against public policy. We conclude

that the district court erred.

A. Additional Facts

¶ 40 In the 2014 Agreement, WSi agreed to supervise its personnel

administratively “[w]ith the exception of direct patient care.” WSi

screened its personnel, but WSi personnel were bound by Insight’s

policies and procedures and received facility orientation from

Insight. Under the indemnity clause, WSi agreed to “defend,

indemnify, and hold harmless [Insight] from any claim, liability,

loss, cost, fines or penalties or expenses . . . arising from or related

to negligent . . . conduct of Temporary Staff, including, without

limitation, claims for third party . . . injuries . . . or any other claim

of any kind or character.”

¶ 41 After the jury’s verdict established that the 2014 Agreement

applied to Insight, the Estate moved for a determination of law that

Hinson (the nurse supplied by WSi) was Insight’s loaned employee.

22
See Settle v. Basinger, 2013 COA 18, ¶ 33 (explaining that a person

or entity that “borrows” another’s employee can be liable for the

employee’s negligence under certain circumstances). The court held

that, under the 2014 Agreement, “Insight had the right to control

. . . Hinson’s direct care of all patients, including [the decedent].”

The court ultimately concluded that Hinson was Insight’s loaned

employee such that Insight could be vicariously liable for her

negligent conduct.

¶ 42 At the September 7 status conference, the district court

considered the 2014 Agreement’s indemnity provision. It noted that

the provision applied to claims or liability “arising from or related to

negligent . . . conduct of Temporary Staff,” which likely included

Hinson. But because Hinson was Insight’s loaned employee,

Insight was responsible for supervising her direct patient care and

vicariously liable for her negligence. The court thus held that WSi

had no duty to defend Insight because the Estate’s allegations

applied only to Hinson’s direct patient care, “and WS[i] had no

control over how . . . Hinson provided direct care while working at

Insight.” Holding that it made “no sense that WS[i] should have a

duty to defend where it had absolutely no control or responsibility

23
for” Hinson’s direct care of the decedent, the district court

dismissed Insight’s claim regarding WSi’s duty to defend.

¶ 43 With respect to the third-party claim regarding WSi’s duty to

indemnify Insight, the court cited Brochner v. Western Insurance

Co., 724 P.2d 1293 (Colo. 1986), and section 13-50.5-102, C.R.S.

2025, and concluded that the contractual provision was “void

against public policy because it would require WS[i] to pay all of the

damages . . . or . . . a disproportionate share of damages . . .

regardless of its proportionate fault.” Ultimately, the court

dismissed the entire third-party complaint and WSi as a party.

¶ 44 In its order denying Insight’s motion for reconsideration, the

district court took a slightly different approach from its earlier oral

order. It analyzed cases considering whether indemnity agreements

expressed sufficient intent to indemnify a party for its own

negligence and then concluded that the 2014 Agreement failed to

express such intent. The court concluded that the provision did not

indemnify Insight only against Insight’s own negligence because it

did not “contain clear and unequivocal language holding Insight

harmless for its own negligent acts.”

24
B. Standard of Review

¶ 45 We review de novo whether a contract violates public policy.

Calvert v. Mayberry, 2019 CO 23, ¶ 13. We also review de novo a

district court’s legal conclusions, Premier Members Fed. Credit Union

v. Block, 2013 COA 128, ¶ 27, including its conclusions regarding

contract interpretation, Gagne, ¶ 50. “An indemnity provision

‘should be enforced according to the plain and generally accepted

meaning of its language and interpreted in its entirety to give effect

to all of its provisions so that none [is] rendered meaningless.’” D.R.

Horton, Inc.-Denv. v. D & S Landscaping, LLC, 215 P.3d 1163, 1171

(Colo. App. 2008) (citation omitted).

C. Sua Sponte Dismissal

¶ 46 We first conclude that even if the district court erred by sua

sponte dismissing Insight’s third-party complaint, any error was

harmless because Insight presented argument on the issue in its

motion for reconsideration, which the court thoroughly considered.

See Ferrera v. Nielsen, 799 P.2d 458, 460 (Colo. App. 1990)

(entering summary judgment on an issue not raised by the parties

was harmless where the party addressed the issue in a motion to

reconsider). Additionally, because we may review the merits of a

25
sua sponte ruling on appeal (even absent a timely objection), Rinker

v. Colina-Lee, 2019 COA 45, ¶ 26, it would make little sense to

remand the issue based solely on the procedural aspect of the

court’s dismissal. For similar reasons, we need not address

Insight’s argument that the district court should have analyzed the

motion to reconsider under C.R.C.P. 121, rather than C.R.C.P. 59.

D. The Indemnity Provision

¶ 47 Insight next contends that the district court erred in its

interpretation of the 2014 Agreement’s indemnity provision and by

concluding that the entire indemnity provision was void as against

public policy. We agree. We first consider the effect of the court’s

ruling on the Estate’s claim that Insight was vicariously liable for

Hinson’s negligence, which is separate from its claim that Insight

was directly liable for its own negligent training and supervision.

Next, we must determine whether the district court correctly

concluded that the provision indemnified Insight only for Hinson’s

negligence, not Insight’s own negligence. Finally, because the court

suggested that Hinson’s status as a loaned employee “drove [its]

ruling that the indemnification clause . . . was void,” we consider

the effect of Hinson’s loaned employee status.

26
1. Direct Negligence Versus Vicarious Liability

¶ 48 The district court’s conclusion that the indemnity provision

was void was based on its conclusion that the provision indemnified

Insight for its own negligence. But the Estate brought separate

claims against Insight for direct negligence and vicarious liability.

So even if the court correctly concluded that the 2014 Agreement

could not indemnify Insight for its own negligence because doing so

would violate public policy — a conclusion we disagree with, as set

forth in Part III.D.2 below — there was still a question as to whether

the 2014 Agreement properly indemnified Insight for its vicarious

liability for Hinson’s negligence.

¶ 49 This is because, for purposes of indemnification, courts often

treat claims based solely on vicarious liability differently from

claims that also allege direct negligence. For example, our supreme

court held that the Uniform Contribution Among Tortfeasors Act

(UCATA), §§ 13-50.5-101 to -106, C.R.S. 2025, abrogated common

law indemnity actions among joint tortfeasors. Brochner, 724 P.2d

at 1299. But a division of this court concluded that the UCATA did

not bar a common law indemnity action between an employer and

employee when the complaint “alleged that [the employer] was liable

27
based only on a theory of respondeat superior, not negligence.”

Serna v. Kingston Enters., 72 P.3d 376, 380 (Colo. App. 2002); see

also Linarello v. City Univ. of New York, 774 N.Y.S.2d 517, 519 (App.

Div. 2004) (Although indemnification clauses that indemnify an

indemnitee for its own negligence are unenforceable under New

York law, such provisions may be enforceable if “the indemnitee is

found not negligent but nevertheless held vicariously liable.”).

¶ 50 We disagree with Insight that the district court could not

consider the provision’s validity until there was a finding that

Insight was directly negligent.8 Even so, the district court

improperly conflated the Estate’s separate allegations of Insight’s

direct negligence and Insight’s vicarious liability for Hinson’s

negligence. See L.J. v. Carricato, 2018 COA 3, ¶ 37 (Vicarious

liability “is not based on the [employer’s] own negligent acts.

Rather, it is based on the [employer’s] vicarious liability for” the

8 We also do not address Insight’s argument about who was

responsible for supervising or directing Hinson’s patient care
because Insight does not challenge the district court’s loaned
employee determination concluding that Insight was responsible for
such supervision and direction. See Armed Forces Bank, N.A. v.
Hicks, 2014 COA 74, ¶ 38 (deeming arguments not raised on appeal
as abandoned).

28
employee’s actions. (citation omitted)). Here, the court concluded

that the entire indemnity clause was void based on its conclusion

that the clause should not apply to Insight’s own negligence. Thus,

it erred by treating the Estate’s claims against Insight for vicarious

liability and direct negligence in the same manner.

2. The Indemnity Provision Covered Insight’s Own Negligence and
Was Not Void as Against Public Policy

¶ 51 As noted, in its oral ruling at the September 7 status

conference, the district court concluded that the indemnity

provision was void as against public policy because it indemnified

Insight for its own negligence. But in its order denying Insight’s

motion for reconsideration, the court determined, somewhat

inconsistently, that the indemnity provision lacked “clear and

unequivocal language holding Insight harmless for its own negligent

acts” and thus did not indemnify Insight for its own negligence.

The court nonetheless maintained its ruling that the provision was

void as against public policy. We conclude that the court erred

both in its interpretation of the provision and in declaring it void as

against public policy.

29
¶ 52 In Colorado, a provision that “indemnif[ies] a party against

liability for its own negligence will be enforced as written as long as

it contains a clear and unequivocal expression that the parties

intended that result.” Constable v. Northglenn, LLC, 248 P.3d 714,

716 (Colo. 2011). In commercial contracts between sophisticated

parties, Colorado appellate courts have found “broad language of

indemnity holding another harmless against liability generally,

without any specific reference or limitation to its own negligence, to

constitute an adequate expression of intent to indemnify to the

extent . . . otherwise permitted by public policy.” Id.

¶ 53 For example, in Constable, the supreme court held that the

following provision encompassed the indemnitee’s own negligence:

“Constable agrees to . . . indemnify Northglenn from and against

any and all losses, damages, liability, claims, suits or actions, . . .

due to any bodily injury sustained in the shopping center’s

community areas by . . . [shopping center visitors] or as a result of

Constable’s business.” Id. at 716-17 (citation modified). The “‘any

and all’ language” supported the court’s conclusion that the clause

covered Northglenn’s own negligence. Id. at 717.

30
¶ 54 Our supreme court reached the same conclusion about a

provision “requiring United Cable to ‘indemnify . . .’ Public Service

from and against all claims and liabilities in any way arising out of

the rights granted United Cable.” Pub. Serv. Co. of Colo. v. United

Cable Television of Jeffco, Inc., 829 P.2d 1280, 1283 (Colo. 1992).

Although the clause did not explicitly mention Public Service’s

negligence, it applied to “all claims, liabilities, causes of action, or

other legal proceedings,” which was sufficient to include Public

Service’s negligence. Id. (emphasis omitted) (“The use of the word

‘liabilities’ is significant because it covers those instances where

Public Service is legally liable for damages, including those where

liability arises because of its own negligence.”).

¶ 55 In Lafarge North America, Inc. v. K.E.C.I. Colorado, Inc., 250

P.3d 682, 685 (Colo. App. 2010), a division of this court considered

a provision in which K.E.C.I. agreed to indemnify Lafarge “from any

and all claims, suit, or liability” that arose “in whole or in part

[from] . . . any act or omission of [K.E.C.I.], or any of [its] officers,

agents, employees, or servants.” The division concluded that “the

indemnity clause unambiguously require[d] K.E.C.I. to indemnify

Lafarge for Lafarge’s own negligence where Lafarge’s liability

31
ar[o]se[] out of any incident which [was] at least partially the result

of K.E.C.I.’s acts or omissions.” Id. at 686.

¶ 56 The division emphasized that the clause “cover[ed] Lafarge’s

‘liability’ and encompasse[d] such liability ‘arising in whole or in

part’ from K.E.C.I.’s acts and omissions.” Id. And it distinguished

a case in which a division of this court concluded that an indemnity

clause did not apply to an indemnitee’s own negligence because

that clause did not address “the indemnitee’s ‘liabilities’ and did not

broadly cover any liability arising ‘in any way’ from the indemnitor’s

acts.” Id. at 686-87 (citing Boulder Plaza Residential, LLC v. Summit

Flooring, LLC, 198 P.3d 1217, 1222 (Colo. App. 2008)).

¶ 57 Here, the indemnity provision required WSi to indemnify

Insight “from any . . . liability . . . arising from or related to

negligent . . . conduct of Temporary Staff, including . . . any other

claim of any kind or character.” Thus, as the district court

acknowledged, the provision contained the critical “any liability”

and “any other claim” language. E.g., id. at 686; Constable, 248

P.3d at 717. Additionally, unlike the cases discussed above, this

indemnity clause explicitly applied to negligent conduct. See

Constable, 248 P.3d at 716.

32
¶ 58 But the district court concluded that the clause here was

narrower than the other provisions because it indemnified Insight

only for the negligent conduct of WSi’s temporary staff. Although

the provision in Lafarge, 250 P.3d at 685, similarly limited Lafarge’s

indemnity to the conduct of K.E.C.I. and its employees, the district

court reasoned that “[i]t d[id] not limit indemnity to one particular

class of . . . employees.” The district court here further reasoned

that the language paralleled Boulder Plaza, in which the indemnity

provision was limited to “all claims for damage . . . growing out of

the execution of the work.’” 198 P.3d at 1220. We disagree.

¶ 59 The fact that the indemnity provision required WSi to

indemnify Insight for a particular class of WSi employees’

negligence does not persuade us that the parties intended to

exclude indemnity for Insight’s negligence. The division in Lafarge

emphasized the provision’s inclusion of liability arising wholly or

partly from K.E.C.I.’s conduct, and it distinguished Boulder Plaza

because the agreement there lacked such language, not because the

provision limited indemnification to a specific circumstance or class

of persons. Lafarge, 250 P.3d at 686-87. Moreover, the division in

Boulder Plaza also emphasized that the indemnification clause at

33
issue lacked the “liabilities” and “in any way” language. 198 P.3d at

1222 (citing Pub. Serv. Co., 829 P.2d at 1283).

¶ 60 Limiting indemnification to claims that “grow[] out of the

execution of the work,” id. at 1220, is significantly narrower than

indemnification for any liability “arising from or related to” the

negligence of WSi’s temporary staff. And the provision here, which

indemnifies Insight from conduct “arising from or related to” the

temporary staff’s negligence is even broader than the Lafarge

provision, which included liability “arising in whole or in part” from

K.E.C.I.’s conduct. 250 P.3d at 686; see also In re Estate of Gattis,

2013 COA 145, ¶ 40 (explaining that courts have interpreted the

phrase “relating to” as broader than the phrase “arising out of”

(citation omitted)).

¶ 61 We therefore conclude that the 2014 Agreement requires WSi

to indemnify Insight for its own negligence when Insight’s liability

arises from or is related to the negligent conduct of WSi’s temporary

34
staff.9 See Lafarge, 250 P.3d at 686. This includes Insight’s direct

and vicarious liability in a wrongful death action stemming from an

incident involving a WSi nurse’s allegedly negligent care of an

Insight patient. The district court erred by concluding otherwise.

And because it is clear and unequivocal, this type of provision is

enforceable in Colorado. See Constable, 248 P.3d at 716.

¶ 62 Finally, we briefly address and reject WSi’s argument that

Brochner, 724 P.2d at 1299, supports the district court’s

conclusion. Applying the UCATA, Brochner “abolished the common

law doctrine of indemnity as between two joint tortfeasors,” such

that “one of two joint tortfeasors can no longer maintain an

indemnity claim against the other for reimbursement of the entire

amount paid as damages to the injured party.” Block, ¶ 33 (citing

Brochner, 724 P.2d at 1299). Brochner concerned common law

indemnity, not contractual indemnity. See id.; see also Holly Sugar

9 The Maryland case that WSi cites in support of the opposite

conclusion is not persuasive. See Bd. of Trs., Cmty. Coll. of Balt.
Cnty. v. Patient First Corp., 120 A.3d 124, 132 (Md. 2015).
Maryland courts clearly require more explicit language in
commercial agreements than do Colorado courts. See id.

35
Corp. v. Union Supply Co., 572 P.2d 148, 150 (1977) (distinguishing

the types of indemnity).

¶ 63 We also reject WSi’s reliance on section 13-21-111.5(6)(b),

C.R.S. 2025. That section applies only to construction contracts

and voids provisions that indemnify an indemnitee for its own

negligence. Id. It is not applicable to the agreement here.

3. Hinson’s Loaned Employee Status Does Not Change the Result

¶ 64 Finally, we conclude that the indemnity clause entitles Insight

to indemnification for Hinson’s negligent conduct, and Hinson’s

status as a loaned employee does not alter this result.

¶ 65 We first reject WSi’s contention that Insight failed to preserve

its argument that Hinson’s status as a loaned employee does not

void the indemnity provision. Insight’s motion for reconsideration

argued that “the law does not require that WSi have control over . . .

Hinson” for the indemnification agreement to be enforceable and

that Hinson’s status as Insight’s agent does not void the clause.

Insight raised “the sum and substance of the argument,” which is

sufficient to preserve the issue. Marquez v. Schaefer, 2025 COA 44,

¶ 30 (citation omitted).

36
¶ 66 WSi argues that “[a]n indemnification agreement trumps a

loaned employee status only when the agreement clearly and

unequivocally indemnifies the borrowing entity from the loaned

employee’s negligence.” Somehow, WSi then concludes that the

2014 Agreement, which explicitly indemnified Insight for WSi

temporary staff’s (i.e., Hinson’s) negligence, did not meet this

standard.

¶ 67 No Colorado appellate court has addressed the effect of the

loaned employee doctrine on the enforceability of an indemnity

agreement. But other jurisdictions hold that the doctrine does not

alter the analysis. E.g., Stocker v. Shell Oil Co., 716 P.2d 306, 309

(Wash. 1986) (“[P]ublic policy considerations mandate enforcement

of indemnity agreements, notwithstanding incidents of borrowed

servant status.”); Sea Land Indus., Inc. v. Gen. Ship Repair Corp.,

530 F. Supp. 550, 563 (D. Md. 1982) (“[W]hatever the status of an

employee under the ‘borrowed servant’ doctrine, the parties may

allocate between themselves the risk of any loss resulting from the

employee’s negligent acts.”); Interstate Fire & Cas. Co. v. Dimensions

Assurance Ltd., 843 F.3d 133, 140 (4th Cir. 2016) (“[I]f the general

employer and special employer have . . . contract[ually] assign[ed]

37
liability to one of the parties, courts will give effect to that

contract.”); Sokolovic v. Throgs Neck Operating Co., 48 N.Y.S.3d 91,

92 (App. Div. 2017) (The “contractual obligation . . . to indemnify

Throgs Neck was not altered or qualified in any way by the court’s

finding that the nurse was a special employee of Throgs Neck for

the purposes of Throgs Neck’s liability to plaintiff.”). We conclude

that Hinson’s loaned employee status does not alter WSi’s duty to

indemnify Insight for the negligence of WSi’s temporary staff.

¶ 68 Additionally, the clause is not invalid merely because WSi

agreed to indemnify Insight for the negligence of WSi’s loaned

employees even if WSi was not directly negligent. See United States

v. Hollis, 424 F.2d 188, 190 (4th Cir. 1970) (“It has long been

settled law that a party may expressly agree to be held liable, even if

the accident stems solely from the fault of another.”); Snohomish

Cnty. Pub. Transp. Benefit Area Corp. v. FirstGroup Am., Inc., 271

P.3d 850, 853 (Wash. 2012) (explaining that indemnification

agreements that indemnify against an indemnitee’s sole negligence

are not void as against public policy). And in Colorado, particularly

among sophisticated parties to commercial contracts, “[s]trong

policy considerations favoring freedom of contract generally permit

38
business owners to allocate risk amongst themselves as they see

fit.” Constable, 248 P.3d at 718.

¶ 69 Here, two sophisticated corporate entities agreed that WSi

would indemnify Insight for the negligence of WSi’s temporary staff.

The “‘borrowing’ and ‘loaning’ of [WSi staff] is the essence of the . . .

contract,” while “indemnification for damage caused or claimed by

these [loaned employees] is the precise purpose of the indemnity

clause.” Stocker, 716 P.2d at 309. Invalidating that agreement

“would frustrate the clearly expressed intent of the parties and

allow a patently unfair result.” Id.

¶ 70 Finally, we decline to resolve the question left open in

Constable: “whether an agreement to indemnify against a risk that

is wholly within the control of an indemnitee might alter the public

policy calculus or evidence too great a disparity in the bargaining

power of the parties.” 248 P.3d at 719. Although WSi cites this

language, it does not develop the argument. See Brown v. Am.

Standard Ins. Co. of Wis., 2019 COA 11, ¶ 45 (declining to address a

possible “issue of first impression in Colorado[] without the benefit

of briefing”). Even so, the indemnity provision at issue here does

not go that far. It necessarily requires Hinson to have been

39
negligent before any indemnity obligation attaches, and Hinson’s

negligence is not wholly within Insight’s control.

¶ 71 Accordingly, we reverse the district court’s order dismissing

Insight’s third-party claims and remand for further proceedings on

the merits of this claim, including whether Hinson and/or Insight

were negligent. However, we emphasize that the indemnity clause

applies only to Insight’s direct and vicarious liability for claims

arising from or related to Hinson’s negligence. Insight is not

entitled to indemnity for any negligent conduct unrelated to

Hinson’s negligence, for the negligent conduct of non-WSi

employees, or for the negligent conduct of WSi employees who do

not qualify as “temporary staff” under the 2014 Agreement. In so

concluding, we do not address any other arguments not sufficiently

developed on appeal. See Galiant Homes, LLC v. Herlik, 2025 COA

3, ¶ 14.

IV. Disposition

¶ 72 We affirm the district court’s order denying WSi’s motion for a

directed verdict, reverse the district court’s order dismissing

Insight’s third-party claims, and remand for further proceedings.

JUDGE BROWN and JUDGE MEIRINK concur.

40