Free Proposed Jury Instructions - District Court of Colorado - Colorado

Case 1:03-cv-02669-MSK-PAC

Document 331-11

Filed 03/31/2006

Page 1 of 4

BIG-D INSTRUCTION ON LEPRINO' CLAIM FOR S BREACH OF CONTRACTUAL INDEMNITY

Case 1:03-cv-02669-MSK-PAC

Document 331-11

Filed 03/31/2006

Page 2 of 4

INSTRUCTION NO. ____ BIG-D CALIFORNIA' DEFENSE TO LEPRINO CLAIM FOR BREACH OF S CONTRACT DUE TO FAILURE OF BIG-D TO INDEMNIFY LEPRINO AGAINST UMM AND OTHER SUBCONTRACTORS'CLAIMS1

For Leprino to recover from Big-D California on its claim for breach of contractual indemnity due to Big-D California' alleged failure to indemnify Leprino from the claims s asserted by UMM and other subcontractors against Leprino, you must find the following has been proved by a preponderance of evidence: 1. Leprino notified Big-D California of UMM and other subcontractors' claims asserted against Leprino and the Project; 2. Leprino tendered the defense and handling of UMM and other subcontractors' claims against Leprino to Big-D California for Big-D California to defend and handle such claims; 3. Big-D California refused to participate in defending Leprino from the claims asserted by UMM and other subcontractors; 4. (a) UMM and the other subcontractors' claims against Leprino arose out of or

resulted from the contracted for work on the Project; or (b) UMM and the other subcontractors' claims against Leprino arose out of BigD California' performance of its Contract with Leprino; s 4.) Leprino was liable to UMM and the other subcontractors as a result of Big-D California' performance of its Contract with Leprino or as a result of Big-D California' s s work performed on the Project.

1

Black' Law Dictionary, 769 (6th Ed. 1990); Burlington Northern Railroad Company v. Stone Container Corp., s 934 P.2d 902, 904 (Colo. App. 1997); Johnson Realty v. Bender, 39 P.3d 1215 (Colo. App. 2001); Contract ¶ 4.1.3;

Case 1:03-cv-02669-MSK-PAC

Document 331-11

Filed 03/31/2006

Page 3 of 4

If you find that any one or more of these four (4) statements has not been proved, then your verdict must be for Big-D California on Leprino' claim against Big-D California for s breach of it contractual indemnity obligation. If, on the other hand, you find that all four (4) of these statements have been proved, then your verdict must be for Leprino on its claim against Big-D California for breach of its contractual indemnity obligation.

Case 1:03-cv-02669-MSK-PAC

Document 331-11

Filed 03/31/2006

Page 4 of 4

INSTRUCTION NO. ____ "TENDER AND REFUSAL" DEFINED2 The terms "tender" and "refusal" as used in the previous Instruction means that one party gave notice to another party of a dispute and requested the other party to participate in the dispute, and the other party refused, upon invitation, to participate.

2

Source and Authority: Johnson Realty v. Bender, 39 P.3d 1215, 1219 (Colo.App. 2001); Contract ¶ 4.1.6