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Friedland v. Travelers Indemnity Co.1/31/2005
leaves little room for doubt that any suggestion of restraint in its holding or the continued vitality of any aspect of the majority opinion in Marez is illusory.
In Marez, this court noted the salutary purposes of notice provisions in insurance contracts and warned against setting them aside without substantial justification. Marez, 638 P.2d at 291. "Absent a factual context which compels, in the interests of justice, a departure from our present long established rule and the adoption of a new rule based on different considerations," we there held (and wisely I believe) that it would be "jurisprudentially sound to leave the matter to another day, or to the wisdom of the general assembly." Id. I have noted elsewhere what I consider to be the willingness of this court to abandon well-established principles of both contract and tort law, without even needing to do so to resolve a particular case or controversy, and to take upon itself the task of regulating the insurance industry, according to its own preferences for administering risk. See, e.g., Goodson v. Am. Standard Ins. Co. of Wis., 89 P.3d 409, 418-19 (Colo. 2004) (Coats, J., concurring in the judgment only). It would be difficult to imagine a more unlikely case to serve as the vehicle for overturning more than a century of contract law in this jurisdiction, even if grounds for departing from precedent could be found.
Because I believe that the majority has failed to present adequate justification for its decision to abandon well-established precedent in this case, and that actions like those taken by the court today can only erode public confidence in the judicial decision-making process, I respectfully dissent.
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