Failure-to-cooperate defense

10-3-1118. Failure-to-cooperate defense. (1) To plead or prove a failure-to-cooperate defense in an action concerning an insurance policy providing first-party benefits or coverage, each of the following conditions must be met before the defense is asserted in a court of law or an arbitration: (a) The insurer has submitted a written request to the insured or the insured's representative for the information the insurer seeks via: (I) Electronic means if the insured or the insured's representative has consented to receive electronic documents from the insurer; or (II) Certified mail; (b) The information is not available to the insurer without the assistance of the insured; (c) The written request provides the insured sixty days to respond; (d) The written request is for information a reasonable person would determine the insurer needs to adjust the claim filed by the insured or to prevent fraud; and (e) The insurer gives the insured an opportunity to cure, which must: (I) Include the furnishing of written notice to the insured of the alleged failure to cooperate, describing with particularity the alleged failure, within sixty days after the alleged failure; and (II) Allow the insured sixty days after receipt of the written notice to cure the alleged failure to cooperate. (2) A failure-to-cooperate defense acts as a defense to the portion of the claim materially and substantially prejudiced to the extent the insurer could not evaluate or pay that portion of the claim. (3) The existence of a duty to cooperate in a policy does not relieve the insurer of its duty to investigate or to comply with section 10-3-1104. (4) Any language in a first-party policy that conflicts with this section is void as against the public policy of Colorado. (5) An insurer is not liable for a claim in a civil action based upon a bad-faith breach of contract under common law or under sections 10-3-1115 and 10-3-1116 because the insurer solely provides the insured with the required amount of time: (a) To respond to the insurer's written request as specified under subsection (1)(c) of this section; and (b) To cure the alleged failure to cooperate as specified under subsection (1)(e) of this section. Source: L. 2020: Entire section added, (HB 20-1290), ch. 229, p. 1116, � 1, effective September 14.