[00:00:00] Speaker 02:
The next case this morning is Gold Peak Homeowners Association versus GAF Materials, number 231181.

[00:00:10] Speaker 02:
Counsel, you may proceed.

[00:00:19] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:00:23] Speaker 03:
I would like to reserve three minutes for a rebuttal, please.

[00:00:28] Speaker 03:
A roofing manufacturer shouldn't be allowed to avoid its responsibilities under its own warranty by relying on a hyper-technical reading of its own notice requirements.

[00:00:40] Speaker 03:
This is particularly true when homeowners who are supposed to be protected under that warranty provide proper notice.

[00:00:47] Speaker 03:
The homeowners paid for the protection of a warranty, they should get it.

[00:00:53] Speaker 03:
Moreover, even if there was a delay by homeowners, which there was not, this delay did not prejudice the defendant in any way.

[00:01:01] Speaker 03:
Its own conduct proved there was no prejudice.

[00:01:05] Speaker 03:
The jury should be allowed to decide all of these issues regarding notice and prejudice.

[00:01:12] Speaker 03:
Let's just take a look at some basic facts here.

[00:01:15] Speaker 03:
Gold Peak is a community with 40 residential buildings.

[00:01:19] Speaker 03:
four garage buildings and hundreds of individual units with 259 individual homeowners.

[00:01:26] Speaker 03:
It has an HOA, which is the plaintiff here.

[00:01:29] Speaker 03:
Defendant GAF makes roofing shields.

[00:01:32] Speaker 03:
GAF has a training process by which it certifies installers.

[00:01:37] Speaker 03:
Gold Peak hired RE Construction as the installer of GAF products, and RE is a GAF certified master installer.

[00:01:47] Speaker 03:
RE Construction has expertise that neither plaintiff nor its residents possess.

[00:01:53] Speaker 03:
What we do know is that RE Construction went through a certification process to actually be a master installer for GAF.

[00:02:01] Speaker 03:
In 2015, RE Construction installed shingles.

[00:02:06] Speaker 03:
In 2016, Gold Peak purchased a 40-year GAF warranty.

[00:02:11] Speaker 03:
40 years.

[00:02:13] Speaker 03:
Non-pro-rated period of 20 years on that warranty.

[00:02:17] Speaker 03:
A critical fact here is that Gold Peak purchased a warranty through RE Construction.

[00:02:22] Speaker 03:
It had no interaction up to that point with GAF at all.

[00:02:27] Speaker 03:
The warranty states, if any of your GAF products is found to have a manufacturing defect that adversely affects performance, GAF will pay you the full reasonable cost of labor to repair or recover the affected GAF products and will provide replacement products.

[00:02:47] Speaker 03:
That is where GAF failed here.

[00:02:50] Speaker 03:
GAF knows that some granular loss on its shingles is, quote unquote, normal and is not a manufacturing defect.

[00:02:59] Speaker 03:
GAF only recommends that it be contacted if, after several months, quote unquote, the granular loss is still significant or the shingles exhibit other signs of damage.

[00:03:11] Speaker 03:
Now, GAF also said the warranty doesn't cover light to moderate granular loss.

[00:03:16] Speaker 03:
It put this information into a technical bulletin about the shingles.

[00:03:20] Speaker 00:
Well, counsel, can I ask you then, what does this go to, what you're arguing or talking about right now?

[00:03:28] Speaker 00:
Are you suggesting you actually complied with the 30-day period because you discovered it so late?

[00:03:36] Speaker 00:
Or what does this argument go to?

[00:03:40] Speaker 03:
That is correct, Your Honor.

[00:03:41] Speaker 03:
I believe that the facts show that the HOA here did in fact comply.

[00:03:46] Speaker 03:
We have to look at a distinction here between observing that there is granule loss and knowing that there is a problem of granule loss.

[00:03:56] Speaker 03:
Because what the warranty states is that light to moderate granule loss is not something that you need to contact GAF for.

[00:04:03] Speaker 03:
Now, it says that if after several months there is significant granule loss, then at that point you contact GAF.

[00:04:11] Speaker 03:
Our argument is that the residents of the HOA certainly are not in a position to determine what is light granule loss, what is moderate granule loss, what is significant granule loss.

[00:04:21] Speaker 03:
What do they do instead?

[00:04:22] Speaker 03:
They rely on the experts.

[00:04:26] Speaker 03:
in this particular situation, they contacted the experts that they knew, RE Construction.

[00:04:33] Speaker 03:
RE Construction goes and examines the shingles and tells them there is not a problem here.

[00:04:38] Speaker 03:
Yes, there is observable granular loss, but still not a problem.

[00:04:41] Speaker 03:
In fact, it is not until August of 2020 that another expert comes in there and says, well, there was a problem.

[00:04:50] Speaker 03:
This is more than just light to moderate granular loss.

[00:04:53] Speaker 03:
This was actually significant, granular loss and a warranty claim should be made.

[00:04:58] Speaker 03:
And within seven days of finding that out, the HOA there made a warranty claim.

[00:05:04] Speaker 03:
At that point, they were actually compliant when they knew there was a problem.

[00:05:10] Speaker 02:
Well, Councillor, are you arguing that Gold Peak needed the opinion of a third-party expert before it could be on notice of significant, granular loss?

[00:05:22] Speaker 03:
In this particular case, Your Honor, yes.

[00:05:26] Speaker 03:
And that is because we are dealing with a technical issue.

[00:05:30] Speaker 03:
And we don't know when we cross over from light to moderate to significant.

[00:05:33] Speaker 02:
Well, how do you get around deposition testimony like that from Ashley Mayer, where she talks about a playground full of sand?

[00:05:43] Speaker 02:
Are you saying that a resident can never be the source of notice?

[00:05:47] Speaker 03:
Well, if we look at this factually, Your Honor, we're talking about four residents out of 259 homeowners.

[00:05:53] Speaker 03:
It's not unusual for various residents to complain about various things that may take place at an HOA.

[00:05:59] Speaker 03:
And this particular resident described a playground full of granules.

[00:06:04] Speaker 03:
But again, the vast majority of residents here said nothing about excess granules.

[00:06:08] Speaker 03:
What if it had been 20 residents?

[00:06:11] Speaker 02:
I guess my question is,

[00:06:15] Speaker 02:
Is the Homeowners Association free to ignore their residents when it comes to notice?

[00:06:22] Speaker 03:
I don't think in this particular case, Your Honor, that they did ignore the residents.

[00:06:25] Speaker 03:
The Homeowners Association did something responsible.

[00:06:29] Speaker 03:
They contacted the installer.

[00:06:31] Speaker 03:
That was the expert in this particular case.

[00:06:33] Speaker 03:
The installer comes out there and says,

[00:06:35] Speaker 03:
We are the master installers here for this particular product.

[00:06:39] Speaker 03:
We know this product well and what we're telling you here is that there is nothing out of the ordinary, so continue to carry on.

[00:06:46] Speaker 02:
That was RE?

[00:06:48] Speaker 03:
Yes, sir.

[00:06:49] Speaker 03:
When did that happen?

[00:06:51] Speaker 03:
We know that the latest that this could have happened was by 2018.

[00:06:55] Speaker 03:
Then there was nothing of significance, actually, until, again, in 2019.

[00:06:59] Speaker 03:
On July 4, 2019, there was a hailstorm.

[00:07:04] Speaker 03:
And shortly after that, actually a second roofer came out there, and that was Premier Roofing, I believe it's called.

[00:07:10] Speaker 03:
Now, Premier Roofing made no known whatsoever of any kind of excessive granule loss.

[00:07:18] Speaker 03:
They certainly were well within their rights to say, well, look, this is a lot of granular loss.

[00:07:22] Speaker 03:
You should do something.

[00:07:23] Speaker 03:
There was never any kind of indicator of that.

[00:07:26] Speaker 03:
The first formal indication they had here from the experts was actually in August of 2020.

[00:07:31] Speaker 03:
And again, within seven days, the HOA here was compliant.

[00:07:37] Speaker 03:
So yes, ultimately, I would submit that with respect to the way that the HOA behaved here, they did comply with the notice period.

[00:07:48] Speaker 03:
Another thing, Your Honors, I think it's important here to observe that

[00:07:54] Speaker 03:
Whether the notice actually took place is an issue for the jury.

[00:07:58] Speaker 03:
This is something that a reasonable jury could conclude is that the notice actually took place.

[00:08:04] Speaker 03:
But when there was a ruling against Gold Peak at summary judgment, that was taken out of the jury's hands.

[00:08:10] Speaker 03:
At the very least, that issue alone should be sent back to the jury in order to deal with this issue of notice.

[00:08:16] Speaker 03:
They can decide whether the notice was compliant and reasonable or not.

[00:08:27] Speaker 03:
I also would like to discuss this issue of prejudice.

[00:08:31] Speaker 03:
Now, throughout its briefings, what EAF has argued is that it was prejudiced by examining the shingles in 2020 instead of earlier.

[00:08:41] Speaker 03:
Let's actually observe GAF's own conduct here.

[00:08:45] Speaker 03:
In 2020, it was able to make a determination of coverage on nine claims for settlement and another 10 for a separate issue for something called splicing.

[00:08:54] Speaker 03:
So actually, this is a tacit admission by GAF that it was able to actually do the proper evaluation even in 2020.

[00:09:03] Speaker 03:
In doing that evaluation, it reviewed documents, photos, and shingle samples, and submitted both in person

[00:09:10] Speaker 03:
and drone inspections of the roofs, it was able to do the necessary work.

[00:09:17] Speaker 03:
Now, if we look at the Clementi case in Colorado, in Clementi, it was observed that the purpose of a contractual notice requirement is to allow the investigating party, in this case GAF, to adequately investigate and defend a claim.

[00:09:33] Speaker 03:
GAF could do that here.

[00:09:35] Speaker 03:
In fact, it did that here on nine claims and then an additional 10.

[00:09:41] Speaker 03:
Second, this was a 40-year warranty.

[00:09:44] Speaker 02:
Can I just back up on this notice of prejudice issue that you've now been talking about?

[00:09:51] Speaker 02:
Yes, sir.

[00:09:55] Speaker 02:
Where does the notice provision in the warranty say that there's a prejudice requirement?

[00:10:02] Speaker 02:
It says 30 days, doesn't it?

[00:10:04] Speaker 03:
It does.

[00:10:05] Speaker 03:
A couple of things about that, Your Honor.

[00:10:08] Speaker 03:
Number one, I think by having this 30-day notice requirement, what is effectively happening here is that a 40-day warranty is cut down to a 30-day warranty.

[00:10:17] Speaker 03:
And that is something that is extraordinarily prejudicial to the homeowners in this case who would have to pay for the repair of their own roofs.

[00:10:25] Speaker 03:
With respect to the notice prejudice issue though, yes, we are actually asking the court to extend notice prejudice to warranties and not just insurance, as has been done in Colorado before.

[00:10:37] Speaker 02:
But you don't have a Colorado case that has done that yet.

[00:10:41] Speaker 02:
Is that correct?

[00:10:42] Speaker 03:
That's correct, Your Honor.

[00:10:43] Speaker 03:
However, what we think is important to observe here is the rationale for why notice prejudice has been extended to uninsured and underinsured motorist coverage in the past.

[00:10:53] Speaker 03:
And here we're relying on the Clementi case and the Friedland case.

[00:10:57] Speaker 03:
There's a three-part rationale for why notice prejudice has been extended.

[00:11:02] Speaker 03:
Number one, in both UIM and liability policies, the policy is usually one of adhesion with insured having little ability to bargain over policy terms.

[00:11:11] Speaker 03:
That is exactly what's happening in a warranty context as well.

[00:11:15] Speaker 03:
These homeowners could not go and negotiate their warranty claims.

[00:11:17] Speaker 03:
They basically had to take the warranty as it was written.

[00:11:20] Speaker 03:
And let's just recognize something that is pretty straightforward here.

[00:11:24] Speaker 03:
A warranty is a form of insurance.

[00:11:26] Speaker 03:
They are basically two trees or two branches of the same tree.

[00:11:30] Speaker 03:
The second rationale for notice prejudice in insurance context also applies to a warranty.

[00:11:38] Speaker 03:
Public policy favors the goal of compensating innocent tort victims, which would be harmed if insurance could avoid coverage due to a late notice by the insurer.

[00:11:46] Speaker 03:
This applies here as well.

[00:11:47] Speaker 03:
We have 259 individual homeowners.

[00:11:50] Speaker 03:
They're going to suffer tremendously if they have to pay to replace their own roofs.

[00:11:54] Speaker 03:
That cost is going to be passed on to them.

[00:11:57] Speaker 03:
And number three, insurers should not reap a windfall by invoking technicalities to avoid coverage that would otherwise be available.

[00:12:06] Speaker 03:
Again, this applies here.

[00:12:07] Speaker 03:
There would be a windfall here to the warrantor if this warranty is not actually covered.

[00:12:14] Speaker 03:
I'd like to reserve my question.

[00:12:15] Speaker 02:
Well, just one quick question.

[00:12:16] Speaker 02:
Yes, sir.

[00:12:17] Speaker 02:
I noticed prejudice.

[00:12:18] Speaker 02:
If that is the correct rule, who has the burden on the prejudice issue?

[00:12:25] Speaker 03:
I think at that point, it would be the burden of the defendant in this case, the warranty company, to actually show that it has been prejudiced in some way due to some kind of a late notice if it had taken place.

[00:12:37] Speaker 03:
And that makes sense, Your Honor, because we're talking about a pretty draconian consequence here.

[00:12:42] Speaker 03:
Otherwise, they are allowed to

[00:12:48] Speaker 04:
Avoid their responsibilities under the warranty and if we're going to have such a draconian effect on the homeowners here than the standard The burden here should be pretty high Good morning your honors may it please the court my name is Nicole black and I along with my co-counsel Kendra Beckwith represent a GAF materials LLC in this case and

[00:13:13] Speaker 04:
The issues in this matter are quite simple, and I want to direct my time to address some of the matters that have come up in the appellant's opening argument.

[00:13:23] Speaker 04:
And namely, it is, what are the undisputed facts that are relevant to the issue of notice?

[00:13:30] Speaker 04:
I think that's our first issue.

[00:13:32] Speaker 04:
And the notice is driven by the written contract itself.

[00:13:35] Speaker 04:
The second issue I want to address is this issue of whether experts

[00:13:40] Speaker 04:
testimony is required in order to interpret the notice, it is not.

[00:13:44] Speaker 04:
And lastly, I would like to address the notice prejudice question that Gold Peak is relying on to argue that prejudice should be read into the contract, which again, it is not.

[00:13:57] Speaker 04:
GAF was awarded summary judgment on all claims by the trial court, and GAF requests that this court affirm the trial court's judgment in its favor.

[00:14:06] Speaker 04:
On the first issue of

[00:14:09] Speaker 04:
What are the material facts related to the interpretation of the warranty?

[00:14:16] Speaker 04:
Respectfully, there have been some facts that have been raised today that are not material or are not in the record.

[00:14:22] Speaker 01:
And namely... Can you explain what a problem is?

[00:14:30] Speaker 04:
Yes, Your Honor.

[00:14:31] Speaker 04:
A problem need not be defined by the warranty.

[00:14:35] Speaker 04:
The warranty itself is a contract that is interpreted based on the plain language of the contract.

[00:14:40] Speaker 04:
And the contract specifically doesn't define a problem.

[00:14:45] Speaker 04:
Now, the court looking to determine.

[00:14:48] Speaker 01:
Shouldn't it define a problem if it's going to be used to avoid liability?

[00:14:57] Speaker 04:
Respectfully, Your Honor, no, it need not be defined because it's unambiguous in the contract what a problem would be.

[00:15:04] Speaker 01:
Well, can you tell me what a problem is, then?

[00:15:06] Speaker 04:
Sure.

[00:15:06] Speaker 04:
We can look to the record, Your Honor.

[00:15:08] Speaker 04:
The problem should be defined as the common usage of a problem, common usage of that term.

[00:15:14] Speaker 04:
And there is testimony here that it's undisputed testimony that a homeowner identified there was a problem, and it prompted that homeowner to tell the HOA and the HOA acknowledged

[00:15:27] Speaker 04:
that this homeowner said you should file a warranty claim or consider filing a warranty claim with GAF.

[00:15:33] Speaker 04:
So respectfully, Your Honor, the answer to your question is we don't need to add a definition of a problem when a layman's definition and interpretation of a problem prompted a homeowner to say you should contact GAF for a warranty claim.

[00:15:49] Speaker 00:
Well, maybe you can come up with a definition just that we could use.

[00:15:55] Speaker 00:
Is it something's wrong with the roof?

[00:15:57] Speaker 00:
I mean, help me there.

[00:16:01] Speaker 04:
The trial court looked to what the homeowners identified as granules coming off the roof.

[00:16:09] Speaker 04:
and that it was a persistent problem over time.

[00:16:12] Speaker 04:
And so the problem can be defined by what was demonstrated in the record as identified over time repeatedly.

[00:16:23] Speaker 04:
They needed to address it.

[00:16:25] Speaker 04:
And they should have contacted GAF.

[00:16:29] Speaker 01:
Why wasn't it a problem to start with?

[00:16:32] Speaker 01:
Because their instructions said, granular loss is not a problem.

[00:16:42] Speaker 01:
And now you're saying, well, granular loss is a problem.

[00:16:45] Speaker 01:
And everybody should know it.

[00:16:48] Speaker 04:
So respectfully, Your Honor, there are two documents we're talking about here.

[00:16:52] Speaker 04:
There's the warranty itself, which is a one-page document.

[00:16:55] Speaker 04:
And then I believe you're referencing the technical bulletin, which is a separate document

[00:16:59] Speaker 04:
And it is not a document that's part of the contract.

[00:17:03] Speaker 04:
It is a document that is publicly available and that the homeowners association or homeowners can reference to identify a problem.

[00:17:13] Speaker 04:
Now specifically, the technical bulletin that you're referencing, which is found at appellate volume two, pages 554 to 555, does say that it's not unusual to have some granule loss coming off the roof for the first couple of months.

[00:17:29] Speaker 04:
But then it says, what if it's happening further?

[00:17:32] Speaker 04:
It says, how do you know if you have a problem?

[00:17:34] Speaker 04:
The technical bulletin actually states that.

[00:17:37] Speaker 04:
it on its face, it says, how do I know if I have a problem?

[00:17:43] Speaker 04:
And then it states, several months after application of new shingles, if the following occurs, please contact GAF Warranty Services Department.

[00:17:52] Speaker 04:
And the number one item listed is the granule loss is still significant.

[00:17:57] Speaker 04:
And number two, the roof starts changing color due to granule loss.

[00:18:00] Speaker 04:
Number three, or the shingles exhibit other signs of damage.

[00:18:03] Speaker 01:
So Your Honor, when I-

[00:18:05] Speaker 01:
What do you do then, counsel, if you get somebody who can get up on the roof, who's an expert, and says, well, that's not a problem?

[00:18:15] Speaker 01:
You say, well, we're not going to follow you.

[00:18:17] Speaker 01:
We're going to do our own guess.

[00:18:21] Speaker 04:
Your Honor, this is a case that was ruled on on summary judgment.

[00:18:25] Speaker 04:
So we do need to look at the specific facts here.

[00:18:29] Speaker 04:
And I understand that Gold Peak is suggesting that RE getting up on the roof was an expert.

[00:18:34] Speaker 04:
Number one, that wasn't ever brought in in the trial court that they had some expertise.

[00:18:39] Speaker 04:
But number two, the testimony that was undisputed, that is the testimony of the HOA corporate designee,

[00:18:46] Speaker 04:
stated that they doubted that conclusion, Your Honor.

[00:18:50] Speaker 04:
And so the fact that the HOA doubted that conclusion by RE, that there was nothing wrong, should have prompted them, we need to contact GAF.

[00:18:59] Speaker 04:
Now, number two, if I may, Your Honor, is that in the warranty itself, in bold, it states that talking to your contractor or installer of the roof is not noticed to GAF.

[00:19:11] Speaker 04:
So that specifically identifies that a problem has to be raised with GAF.

[00:19:16] Speaker 04:
And it's not sufficient to go to the contractor.

[00:19:20] Speaker 01:
Well, you're talking about the warranty that's contained within the page 9 of 10?

[00:19:30] Speaker 04:
I'm talking about the systems plus limited warranty.

[00:19:33] Speaker 04:
The record set that I have for that, Your Honor, is appellate volume 2 at page 550.

[00:19:39] Speaker 01:
Is that 81-7?

[00:19:42] Speaker 01:
I've just got a loose sheet here.

[00:19:44] Speaker 04:
I don't know if that's 81-7.

[00:19:48] Speaker 04:
It was provided at several points in the record, but I can tell you that the record site that I have for it is Appellate Volume 2 at page 550, which is the copy provided with the subject.

[00:20:00] Speaker 04:
Well, it's a single-page document, and respectfully, it does state only one obligation for the consumer here, the HOA, which is that they have to provide notice.

[00:20:13] Speaker 04:
So specifically, the notice provision states, Your Honor, you must notify GAF about any claim within 30 days

[00:20:23] Speaker 04:
After you notice a problem, it was undisputed before the trial court that Gold Peak knew there was a problem in 2018.

[00:20:33] Speaker 04:
That was from its own words by its own corporate designee.

[00:20:38] Speaker 01:
You pointed out this was on summary judgment.

[00:20:40] Speaker 04:
Correct.

[00:20:41] Speaker 01:
Now who makes the decision on whether it's a problem?

[00:20:47] Speaker 01:
To judge?

[00:20:49] Speaker 04:
Well, Your Honor, the testimony on that was undisputed.

[00:20:51] Speaker 04:
And because it was undisputed, then the court can rule as a matter of law and enter summary judgment on the claim.

[00:21:01] Speaker 04:
And that's what happened.

[00:21:04] Speaker 01:
That's only if you agreed to find a problem.

[00:21:08] Speaker 04:
Well, the trial court was correct when it said that it could interpret what a problem was based on the knowledge and the testimony that was undisputed from the HOA.

[00:21:20] Speaker 04:
The court didn't find that there was an ambiguity in what a problem was.

[00:21:25] Speaker 04:
And specifically, this court need not do that either.

[00:21:28] Speaker 04:
Now.

[00:21:30] Speaker 02:
You mentioned the designee.

[00:21:33] Speaker 02:
Yes.

[00:21:34] Speaker 02:
Your opposing counsel made the point

[00:21:38] Speaker 02:
There were only four of 40 homeowners who complained.

[00:21:44] Speaker 02:
If you've only got four out of 40, why isn't there some question about whether there's a problem?

[00:21:52] Speaker 02:
Or are you linking it to the HOA designee to get there?

[00:21:58] Speaker 02:
Could you just kind of put that together?

[00:22:01] Speaker 04:
Absolutely, Your Honor.

[00:22:02] Speaker 04:
So first off, it's not a fact and evidence that there were only four homeowners that complained.

[00:22:08] Speaker 04:
There were four undisputed homeowner complaints that were brought.

[00:22:12] Speaker 04:
Actually, I apologize, Your Honor.

[00:22:13] Speaker 04:
I believe two of them were undisputed that were brought forth on summary judgment.

[00:22:18] Speaker 04:
So that's an assumption from the record on summary judgment that there weren't any other homeowners.

[00:22:23] Speaker 04:
But more importantly, to your question about how do we

[00:22:28] Speaker 04:
link that up as the knowledge of the HOA.

[00:22:30] Speaker 04:
The HOA's own corporate designee, who was the president of the HOA at one of the times, she's the immediate past president, she reviewed the complaints, the maintenance requests, the comments that were submitted to the HOA board, and she confirmed that they had received them at the time.

[00:22:53] Speaker 04:
And she confirmed that they had knowledge of it.

[00:22:56] Speaker 04:
So respectfully, Your Honor, it's not that GAF relied on the specific homeowner's testimony.

[00:23:03] Speaker 04:
It was that the HOA itself acknowledged that they received these complaints, and yet they still didn't notify GAF until August 20 of 2020.

[00:23:14] Speaker 04:
Now, the second issue I want to address here is the warranty itself does not require any expert testimony.

[00:23:22] Speaker 04:
It doesn't require an expert opinion.

[00:23:24] Speaker 04:
And there is no need to infer that into the warranty.

[00:23:28] Speaker 04:
Now, in prepping for this argument,

[00:23:30] Speaker 04:
It occurred to me that it's an unusual thing for a consumer, such as Gold Peak HOA, to be suggesting that a one-page consumer warranty required them to go get an expert opinion.

[00:23:44] Speaker 04:
Because that, in fact, adds an additional requirement onto the HOA that is not favorable to the consumer.

[00:23:53] Speaker 04:
So respectfully, the court need not go beyond the plain language of the warranty, which does not require

[00:23:59] Speaker 04:
proving up anything at the time you notify GAF.

[00:24:03] Speaker 04:
It's simply provide notice of a problem, and then GAF has the opportunity to investigate.

[00:24:10] Speaker 04:
So we respectfully request that the court does not infer that expert opinion was needed in this case.

[00:24:16] Speaker 00:
There was also... What if they obtain it?

[00:24:19] Speaker 04:
What if they do obtain it?

[00:24:21] Speaker ?:
Yeah.

[00:24:21] Speaker 00:
What I mean, I guess that's what your opposing counsel is posing We couldn't we couldn't get up on the roof.

[00:24:28] Speaker 00:
We got somebody to go up there and Why what are we supposed to do when they say there's no problem?

[00:24:36] Speaker 04:
Your honor that is also not just positive here, and it does not require reversal on that basis because in fact there were three roofers that Ended up going up on the roof all of them

[00:24:49] Speaker 04:
months and years in advance of when the HOA provided notice to GAF.

[00:24:56] Speaker 04:
So first, it was Ari that went up on the roof.

[00:25:01] Speaker 04:
I do not believe that there is record testimony of when they went up on the roof for this court to rely on.

[00:25:07] Speaker 04:
Second, there was Premier Roofing, who went up on the roof three separate times.

[00:25:13] Speaker 04:
And two of those times, hail damage was identified.

[00:25:18] Speaker 04:
the HOA president identified that he had received the roofing report that indicated there was, at the very least, hail damage and granule loss happening on the roof.

[00:25:31] Speaker 04:
And that was in July.

[00:25:33] Speaker 04:
The report is July 18 of 2019.

[00:25:37] Speaker 04:
And the record site for that is Appendix Volume 2 at 580 to 87.

[00:25:44] Speaker 04:
The third time was when Home Guard Roofing went up on August 16th of 2020.

[00:25:52] Speaker 04:
And it's that particular individual from Home Guard Roofing which the plaintiff is relying on.

[00:26:01] Speaker 04:
And respectfully, if they had three roofers going up on the roof, that should be indicative that they knew that there was a problem from a layman's perspective.

[00:26:11] Speaker 00:
Well, what did the second of your description say about the roof?

[00:26:17] Speaker 00:
Did they say there's no problem?

[00:26:19] Speaker 04:
So the second was Premier Roofers.

[00:26:22] Speaker 04:
And they wrote three separate reports.

[00:26:24] Speaker 04:
And one identified significant damage, one identified

[00:26:29] Speaker 04:
They use a slightly different wording than significant.

[00:26:32] Speaker 04:
And then the first of those reports said no damage.

[00:26:36] Speaker 04:
So there is substantial evidence here in the record, which is undisputed.

[00:26:41] Speaker 04:
It was undisputed that the HOA received the report to show that they knew that they had a problem.

[00:26:47] Speaker 01:
Now, you're-

[00:26:51] Speaker 04:
It may have been hail damage, correct, Your Honor.

[00:26:53] Speaker 04:
Premier Roofing went up on the roof because there had been a hail storm.

[00:26:57] Speaker 01:
However, the report reflects... They discovered damage from the hail, correct?

[00:27:04] Speaker 04:
Well, they discovered damage, yes.

[00:27:08] Speaker 01:
And from the hail?

[00:27:09] Speaker 01:
And they splice, splicing shingles, that type of thing?

[00:27:14] Speaker 04:
They did not identify splicing.

[00:27:17] Speaker 04:
That was not within their scope.

[00:27:19] Speaker 01:
Somebody did.

[00:27:22] Speaker 04:
GAF identified splicing, Your Honor.

[00:27:26] Speaker 04:
Respectfully, I'd like to take a quick moment to say that the notice prejudice rule does not apply here and is distinguishable for two reasons.

[00:27:33] Speaker 04:
Number one, it has been restricted in Colorado to simply applying to cases with tort claims.

[00:27:39] Speaker 04:
Number two, in the insurance context.

[00:27:42] Speaker 04:
And the Colorado Supreme Court, Judge Matheson, you're absolutely correct,

[00:27:45] Speaker 04:
There is no case law that reflects that the Colorado Supreme Court has extended it to apply to this context where there is a private contract.

[00:27:54] Speaker 04:
And with that, I will conclude and respectfully ask this court to affirm the judgment in GAF's favor.

[00:28:00] Speaker 04:
Thank you.

[00:28:08] Speaker 03:
Thank you.

[00:28:08] Speaker 03:
Thank you, Your Honors.

[00:28:09] Speaker 03:
Again, I think we have to return to this issue of a complaint versus a problem, and I think this is something that this Court has highlighted today.

[00:28:19] Speaker 03:
The contract doesn't define a problem.

[00:28:22] Speaker 03:
Now, let us remember a basic rule of contractual interpretation, which is that any ambiguity is interpreted against the drafter.

[00:28:30] Speaker 03:
What could GAF have done here?

[00:28:32] Speaker 03:
Well, it just listed this spectrum, basically, between light damage to moderate damage to significant.

[00:28:43] Speaker 03:
What it could have done here is actually define what light versus moderate versus significant actually is.

[00:28:49] Speaker 03:
What it also could have done here is provide some examples of light versus moderate versus significant.

[00:28:56] Speaker 03:
If this ambiguity actually was not resolved, then whoever is looking at these granules has no way, if they don't have expertise, to determine at what point you cross over this bridge from light to moderate to significant.

[00:29:09] Speaker 00:
Didn't, though, the second roofing group, the premier group, say that there is, please tell me what we are to take from that report or the three reports?

[00:29:20] Speaker 03:
So they call premier roofing not just

[00:29:25] Speaker 03:
out of some kind of haphazard fashion, they called them in response to a particular event, and that was a hail storm in July of 2019.

[00:29:33] Speaker 03:
Premier Roofing focused on the hail damage.

[00:29:36] Speaker 03:
They really didn't make any kind of note there about any kind of significant granular loss.

[00:29:40] Speaker 03:
Now bear in mind, Your Honor, they certainly could have done that.

[00:29:43] Speaker 03:
Premier Roofing did come out there three times.

[00:29:44] Speaker 03:
They're an expert in roofing.

[00:29:46] Speaker 03:
If they observed something else out there while they were out there, they could have said, well look, maybe we didn't find that much in terms of hail damage,

[00:29:53] Speaker 03:
But you have this other issue here, or this other problem, Your Honor, which is the granule loss.

[00:29:58] Speaker 03:
But they never did that.

[00:30:00] Speaker 03:
In fact, when we talk, there was reference made to three experts, but two of the three experts didn't say anything about significant granule loss.

[00:30:07] Speaker 03:
And when the third expert actually did, in August of 2020, shortly thereafter, Gold Peak went ahead and actually made the warranty claim at that point.

[00:30:17] Speaker 03:
By the way, just to correct something, it's not four of 40 homeowners, it's four of 259.

[00:30:22] Speaker 03:
There were 40 buildings.

[00:30:24] Speaker 03:
So we're talking about a fraction of homeowners here.

[00:30:27] Speaker 03:
Thank you, Your Honors.

[00:30:29] Speaker 02:
Thank you, counsel.

[00:30:32] Speaker 02:
The case will be submitted and counsel are excused.