                                                            F I L E D
                                                      United States Court of Appeals
                                                              Tenth Circuit
           UNITED STATES COURT OF APPEALS                    DEC 14 2004

                          TENTH CIRCUIT                  PATRICK FISHER
                                                                  Clerk


RONALD A. PETERSON,

     Plaintiff-Counter-Defendant,

v.                                                  No. 03-1186
                                              (D.C. No. 01-MK-1626)
HOME INSURANCE COMPANY OF INDIANA,                   (D. Colo.)
a/k/a The Home Insurance Companies,

     Defendant,

COREGIS INSURANCE ORGANIZATIONS
a/k/a Coregis Insurance Company,

     Defendant-Counter-Claimant-Appellee,

v.

JANE McMAHON, in her capacity as Successor
Trustee of the Edward Sklar Trust,

     Defendant-Cross-Defendant-Appellant.


RONALD A. PETERSON,

     Plaintiff-Counter-Defendant-Appellant,
                                                    No. 03-1194
v.                                            (D.C. No. 01-MK-1626)
                                                     (D. Colo.)
HOME INSURANCE COMPANY OF INDIANA,
a/k/a The Home Insurance Companies,

     Defendant,
 COREGIS INSURANCE ORGANIZATIONS
 a/k/a Coregis Insurance Company,

          Defendant-Counter-Claimant-Appellee,

 v.

 JANE McMAHON, in her capacity as Successor
 Trustee of the Edward Sklar Trust,

          Defendant-Cross-Defendant.




                        ORDER AND JUDGMENT *


Before SEYMOUR, BALDOCK and LUCERO, Circuit Judges.



      This action arises out of an insurance claim dispute between Ronald A.

Peterson and Coregis Insurance Company (Coregis) regarding the alleged duty of

Coregis to defend and indemnify Mr. Peterson in an underlying malpractice action




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

                                        -2-
filed against him by Jane F. McMahon, in her capacity as trustee. 1 Coregis filed a

counterclaim against Mr. Peterson and a cross-complaint against Jane F.

McMahon seeking a declaratory judgment that it had no duty to defend or

indemnify Mr. Peterson. Mr. Peterson contended the claims-made insurance

policies issued to him by Coregis should be reformed into occurrence policies in

light of Coregis’ alleged failure to comply with Colorado law regulating such

policies. The district court granted summary judgment to Coregis. Mr. Peterson

and Ms. McMahon appeal. We review de novo the district court’s summary

judgment ruling, see Alexander v. Oklahoma, 382 F.3d 1206, 1215 (10th Cir.

2004), and affirm. 2

      Mr. Peterson, an attorney, obtained a series of professional liability

insurance policies from Coregis with policy periods dating from January 1, 1995

to January 1, 1998. The insurance contracts were claims-made policies under

which coverage was only provided against claims made and reported during the


      1
       The Home Insurance Company of Indiana, a named party in this action, did
not appear in the district court and is not before us on appeal.
      2
        Coregis contends Ms. McMahon waived her right to appeal by not filing
objections to the magistrate judge’s proposed findings and recommendations. In
light of our affirmance of the district court’s ruling, we need not address this
issue. Mr. Peterson’s failure before our court makes Ms. McMahon’s joint appeal
moot.

                                        -3-
policy period, regardless of when the events giving rise to the claims took place.

Ballow v. Phico Ins. Co., 875 P.2d 1354, 1357 (Colo. 1993); St. Paul Fire &

Marine Ins. Co. v. Estate of Hunt, 811 P.2d 432, 434-35 (Colo. App. 1991). 3

      In July 1999, Mr. Peterson was sued by Ms. McMahon for his negligent

handling of assets in a trust, resulting in a judgment against him for $287,762.

Coregis denied coverage because Mr. Peterson’s last claims-made policy had

expired eighteen months prior to his reporting of the McMahon claim.

Recognizing the problem, Mr. Peterson brought the instant action against Coregis,

contending the claims-made policies were issued in violation of Colorado law,

specifically C OLO . R EV . S TAT . § 10-4-419. 4 In light of this alleged violation, Mr.


      3
       In contrast, an occurrence policy is one in which coverage is provided for
events that occur during the policy period, even though a claim may not be made
or reported until some time after the policy period has expired. Ballow v. Phico
Ins. Co., 875 P.2d 1354, 1357 (Colo. 1993); St. Paul Fire & Marine Ins. Co. v.
Estate of Hunt, 811 P.2d 432, 434 (Colo. App. 1991).
      4
        Section 10-4-419 details, in part, statutory requirements for what must
appear in claims-made insurance policy forms. See C OLO . R EV . S TAT . § 10-4-419.
Mr. Peterson asserts the Coregis forms did not comply with several requirements
laid out in the statute, including the forms’ failure to define for the insured “the
nature of the risks or exposures to be insured on the claims-made policy,” §
10-4-419(2)(a); failure to contain a “clear and adequate disclosure” to alert the
insured that the policy was a claims-made policy, and how such a policy differs
from an occurrence policy, § 10-4-419(2)(b)(I); failure to include “[a] statement
of the renewal provisions including any reservation by the insurer of a right to
change premiums,” § 10-4-419(2)(b)(II)(C); failure to clearly define “events and

                                           -4-
Peterson maintained the policies should be reformed into occurrence policies,

thereby providing coverage for the McMahon claim.

      Coregis refused to concede “that the policies issued did not fully comport

with the statute,” Aplt. App. at 238, and the court did not make a finding

otherwise. It was Coregis’ position that even “assuming arguendo that the

Coregis policies varied in some respects from the Colorado regulatory code and

statutes,” the appropriate remedy would be one other than that sought by Mr.

Peterson. Id. at 236; Aple. Br. at 3-4.

      We agree with the district court that the remedy Mr. Peterson seeks is

inappropriate. We have found nothing to support Mr. Peterson’s argument that in

light of the alleged statutory violations, these claims-made policies should be

altered into an entirely different type of insurance contract. Rather, Colorado law

indicates that the purpose of reformation is to make certain the policies reflect the



conditions which trigger coverage” and “how a claim is deemed to be made or is
deemed made,” § 10-4-419(2)(c); failure to acknowledge “by signature on the
written endorsement, any exclusionary endorsement which excludes coverage in a
renewal period for claims from certain known occurrences, events, products, or
locations,” § 10-4-419(2)(f); and failure to comply with other notice provisions
laid out in the statute, § 10-4-419(2)(e). [Aplt. Br. at 8-9.] Mr. Peterson also
contends Coregis failed to comply with the statute by not making the appropriate
certifications to the Colorado Commissioner of Insurance, as required by § 10-4-
419(1) and (7). [Id. at 9.]

                                          -5-
“true intent of the parties,” Clark v. State Farm Mutual Auto. Ins. Co., 319 F.3d

1234, 1241 (10th Cir. 2003), and that, should a statutory violation exist, the

policies be reformed “to ensure that coverage meets the statutory requirements.”

Id. (citing Thompson v. Budget Rent-A-Car Sys., Inc., 940 P.2d 987, 990 (Colo.

App. 1996)); see also Aetna Cas. & Sur. Co. v. McMichael, 906 P.2d 92, 101

(Colo. 1995) (noting that where insurance policy violates statutory mandated

coverage requirements, missing terms should be read into policy).

      In Clark and Thompson, statutes dictated that certain types of supplemental

coverage be offered to insureds. Clark, 319 F.3d at 1237-38; Thompson, 940 P.2d

at 989-90. Because the coverage was not offered nor expressly waived by the

insureds, the courts required the coverage terms mandated by statute to be read

into the contracts. See Clark, 319 F.3d at 1241-42; Thompson, 940 P.2d at 990-

91. As a result, the plaintiffs in both cases were able to obtain insurance benefits

previously denied to them because of the faulty policies. By inserting the missing

statutory terms, however, the courts did not completely rewrite the policies or

transform them into entirely different contracts. Rather, they merely ensured that

the policies contained the terms which could have been included had the insurers

made the statutorily mandated offer of supplemental coverage to their insureds.

Relying on Clark and Thompson, Mr. Peterson reasons that because the

                                         -6-
reformation of the insurance policies in those cases resulted in the insureds’

ability to obtain coverage, so too should his allegedly faulty policies be

reconfigured to allow him coverage for the McMahon claim. We are not

persuaded.

      To reform the policies in the manner advocated by Mr. Peterson would not

“express the true intent of the parties.” Clark, 319 F.3d at 1241. Mr. Peterson

presented no evidence to support an argument that when he obtained the insurance

policies from Coregis, he intended to purchase something other than claims-made

policies. When Mr. Peterson filled out the application form to acquire insurance

from Coregis, the form’s language explicitly indicated that the insurance policies

for which Mr. Peterson was applying were claims-made policies. Aplt. App. at

96. Likewise, language on the first page of Mr. Peterson’s insurance policies

stated in bold capital letters that “[t]his is a claims-made and reported policy.

Except as may be otherwise provided herein, this coverage is limited to liability

for only those claims which are first made against the named insured and reported

to the company while the policy is in force.” Id. at 82. Additional language in

the policy also stated

      The Company will pay on behalf of any INSURED those sums in
      excess of the deductible which any INSURED becomes legally
      obligated to pay as DAMAGES as a result of CLAIMS first made

                                          -7-
       against any INSURED during the POLICY PERIOD and reported to
       the Company in writing during the POLICY PERIOD or within sixty
       (60) days thereafter . . . .

Id. at 84.

       Moreover, Mr. Peterson acknowledged to the district court that based on his

own reading of the policies, he understood them to be of a claims-made nature.

Id. at 224-25. He also acknowledged that when the last policy was canceled, he

knew he would need to obtain new insurance. Id. at 225.

       Nor did Mr. Peterson present evidence that Coregis was required to, or even

did, offer occurrence policies. Thus, this case is not like Clark and Thompson,

where the insurance company failed to offer statutorily mandated coverage.

       To change the policies from claims-made to occurrence would “alter a basic

term of the insurance contract which expresses the parties’ agreement.” St. Paul

Fire & Marine Ins., Co., 811 P.2d at 435. As we noted above, under a claims-

made policy, claims

       must be made and reported within the policy period. It is exactly this
       aspect of a claims made policy that distinguishes it from an
       occurrence policy. Claims made policies, unlike occurrence policies,
       are designed to limit liability to a fixed period of time. To allow
       coverage beyond that period would be to grant the insured more
       coverage than he bargained for and paid for, and to require the
       insurer to provide coverage for risks not assumed.

United States v. Strip, 868 F.2d 181, 187 (6th Cir. 1989). We have no authority

                                         -8-
to rewrite the parties’ insurance policies in such a manner. See Ballow v. Phico

Ins. Co., 878 P.2d 672, 680 (Colo. 1994) (“A court may not make a contract for

the parties and then order it to be specifically performed.”).

      In sum, following the guidance provided by Clark and Thompson, we

conclude that the only relief Mr. Peterson is entitled to receive consists of

inserting into his now expired policies the allegedly missing information,

endorsements, and disclosures required by § 10-4-419, relief which Mr. Peterson

does not seek. 5 We therefore AFFIRM the district court’s entry of summary

judgment in favor of Coregis.

                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Circuit Judge




      5
       We are not in a position to address whether the Coregis policies complied
with C OLO . R EV . S TAT . § 10-4-419. We note, however, that under § 10-4-418 an
insurance company whose policy forms do not comply with statutory
requirements, may have its certificates of authority suspended or revoked after a
finding by the Commissioner of Insurance of its willful failure to comply with the
law.

                                          -9-
