I have always understood two seemingly competing rules about proofs of loss since I started as a property insurance defense attorney and before I switched sides to represent policyholders over forty years ago. First, policyholders should comply with a policy’s proof of loss requirement. A sworn proof of loss may look like an unnecessary technicality after the insurance company has inspected the property, written estimates, exchanged correspondence, and issued payments. But technicalities have an unfortunate habit of becoming dispositive after litigation begins, which need to be explained by the policyholder.
Second, an insurance company can waive a post-loss proof of loss requirement through its words and conduct. When an insurer investigates the claim, determines the amount it believes is owed, issues multiple payments, considers supplemental estimates, and ultimately denies the remaining amount on the merits, I have generally understood that conduct to be powerful evidence that the insurer waived strict compliance with the formal proof of loss requirement.
A recent Colorado federal trial court ruling has me wondering whether I learned waiver differently and correctly. The case, Ranjitkar v. Owners Insurance Company, 1 is pending in the United States District Court for the District of Colorado. The policyholders reported a hail and wind loss eight days after it occurred. Nine days later, Owners requested a signed and sworn proof of loss. The policyholders never submitted one.
Owners nevertheless inspected the property, adjusted the claim, issued four actual cash value payments totaling approximately $12,988, considered a contractor’s supplemental estimate, communicated with the policyholders and their counsel, and eventually determined that a full roof replacement was not warranted. The claims process continued for approximately nineteen months before Owners communicated its position regarding the roof.
Owners made a strategically effective summary judgment argument. Rather than becoming trapped in a battle over hail damage, discontinued concrete tile, repairability, or competing estimates, Owners focused on contractual conditions. Owners argued that the policyholders could not recover replacement cost benefits because they had not repaired the property within the policy’s two-year deadline. More fundamentally, Owners also argued that no additional payment obligation ever arose because the policyholders had not submitted the signed and sworn proof of loss required by the policy.
The policy required the insureds to submit a proof of loss within sixty days after notifying Owners of the loss. A separate loss-payment provision stated that Owners would pay within sixty days after receiving the proof of loss and other requested documents and after the amount of loss was finally determined by agreement, judgment, or appraisal. The policy also contained an “Action Against Us” provision stating that Owners could not be sued unless there had been full compliance with all policy terms.
In my opinion, this was the strongest part of the insurer’s motion. It relied upon admitted facts and express policy language rather than asking the court to resolve the competing opinions about the roof. Its weakness was the elephant sitting on top of the claims file: Owners had already paid the claim four times—how could it overcome a waiver argument when many claims reach this stage? If the absence of a sworn proof meant that Owners’ obligation to perform had never been triggered, what contractual obligation was Owners performing when it inspected, adjusted, valued, and repeatedly paid the loss? If Owners possessed enough information to decide what it owed and issue four checks, why was the missing sworn form suddenly indispensable when the policyholders disputed the amount?
The policyholders presented substantial evidence regarding the underlying loss. Their expert concluded that the discontinued Westile concrete tile roof required replacement and estimated the covered damage at $86,085.27 on a replacement cost basis and $64,277.22 on an actual cash value basis. They argued that the approximate $13,000 paid by Owners left a substantial portion of even the actual cash value unpaid. They also argued that Owners’ underpayment prevented them from completing repairs and that Owners could not withhold the money necessary for replacement and then rely upon the absence of completed repairs to avoid paying replacement cost benefits.
Most importantly, they argued that Owners had waived strict compliance with the proof of loss and repair-completion provisions by issuing four payments, reviewing supplemental estimates, and engaging in extended substantive claim handling without conditioning that activity upon compliance with those provisions. The waiver facts were there. The waiver law was not in their Response.
The policyholders devoted only a brief portion of their Response to waiver and cited no Colorado property insurance decisions addressing waiver of a proof of loss. They combined the proof of loss and repair-completion provisions into one waiver argument, although the two conditions serve different purposes and may require different analyses. They did not explain why a proof of loss requirement exists principally for the insurer’s protection. They did not walk the court through each payment and each merits-based claim decision as conduct inconsistent with an intention to insist upon the sworn form.
They also did not develop alternative arguments based upon estoppel, justifiable excuse, lack of prejudice, or the distinction between postponing the maturity of a claim and forfeiting the claim altogether. A good factual argument without the governing law is often just an invitation for a trial judge to supply a different legal framework.
The Recent Colorado Proof of Loss Opinion Regarding Proofs of Loss
The court granted Owners’ motion based on the missing proof of loss. The court found it undisputed that the policyholders never submitted a signed proof of loss and concluded that they had not satisfied the conditions triggering Owners’ performance. It therefore held that no reasonable jury could find that Owners breached the policy by failing to pay additional benefits.
The court acknowledged the policyholders’ waiver argument but relied upon non-insurance precedent. The court stated that a contractual provision may be unilaterally waived when it was included solely for the benefit of the waiving party. Because the policyholders had not argued or established that the proof of loss and repair-completion requirements existed solely for Owners’ benefit, the court rejected waiver.
The court then dismissed the common law and statutory bad faith claims because, in its view, no policy benefits were owed. Notably, the court did not decide whether the roof required replacement, whether Owners had properly valued the hail damage, whether the discontinued tile could be repaired, or whether Owners’ claim investigation was reasonable. The entire case turned on the missing proof of loss.
Colorado has recognized waiver of proof of loss requirements for more than a century. In Hartford Fire Insurance Company v. Hammond, 2 the insured failed to submit a formal proof of loss. The insurer’s refusal to pay, however, was based on its contention that the insured had overstated the amount of the loss rather than on the absence of the proof. The Colorado Supreme Court held that the insurer had waived the objection.
In Bloom v. Wolfe, 3 the Colorado Court of Appeals repeated the general rule that an insurer waives a defect in proof of loss when it refuses payment on grounds other than the absence or insufficiency of the proof. The court further held that a non-waiver agreement executed after waiver had already occurred did not resurrect the lost defense.
In Circle C Beef Company v. Home Insurance Company, 4 the Colorado Court of Appeals held that post-loss proof of loss and suit conditions could be waived even without a writing, notwithstanding policy language requiring written waivers. Colorado law also generally recognizes that waiver may be inferred from conduct inconsistent with an intent to enforce a known right and that the existence of waiver ordinarily presents a factual question.
The frustrating part is that this law was already discussed in our own blog archive. The post, “Is Failure to Provide a Proof of Loss Fatal to a Policyholder’s Claim Against an Insurer?” discusses Hartford and Colorado’s recognition that an insurer may waive the requirement by denying the claim on other grounds. Those authorities should have been placed squarely before the court.
Owners did not merely investigate while preserving all rights. It determined covered amounts and paid them. It reconsidered parts of the claim and made a supplemental payment more than a year after the loss. It ultimately rejected the requested roof replacement because it believed replacement was unwarranted—not because it lacked a sworn statement identifying the date, cause, interests, encumbrances, and amount of loss.
There is also an awkward tension within the order. The court’s summary judgment discussion correctly observed that questions of intent ordinarily belong to the factfinder. Waiver by conduct turns heavily on intent and whether the insurer’s conduct objectively demonstrated an intentional relinquishment of the right to insist upon the formal proof. Yet, the court resolved that question as a matter of law without discussing what inferences a jury could draw from four payments and nineteen months of substantive adjustment.
A contractual right may be valid and enforceable when invoked, yet still be surrendered through later conduct. Waiver does not create insurance coverage that the policy never provided. Here, Owners acknowledged that at least part of the hail loss was covered and paid benefits. The question is whether Owners waived a procedural post-loss condition as a defense to the disputed remainder.
The general insurance law recognizes the danger of converting a procedural requirement into an unexpected forfeiture:
In the absence of an express provision making the insured’s timely notice and proof of loss a condition precedent to recovery on the policy and his failure to do so a ground for forfeiture, there is a conflict of authority as to whether noncompliance or delay works a forfeiture.10 Some courts have held that in the absence of an express provision for forfeiture, failure or delay in furnishing notice will defeat a recovery, while failure or delay in furnishing proofs merely postpones maturity of the claim. However, insofar as the law disfavors forfeiture, any ambiguity in a provision for timely notice or proofs of loss will be interpreted against requiring strict compliance as a condition precedent to recovery. 5
Will This Case Be Appealed?
I predict that it will be appealed. The order is final, comparatively short, and rests on a discrete legal issue about whether the policyholders produced enough evidence and argument for a jury to decide waiver.
An appeal is not a sure victory. Appellate courts do not ordinarily rescue arguments that were only lightly developed in the trial court. The policyholders’ failure to cite the controlling Colorado proof of loss cases may become as important as the merits of those cases. A court can be wrong about the governing doctrine while still being affirmed because counsel failed to adequately preserve and present the issue.
Still, the notion that an insurer may inspect a loss, calculate its obligation, issue four payments, decide the unpaid portion on its merits, and later obtain complete forfeiture because the insured never signed a formal proof after making all these payments deserves appellate scrutiny.
The Practical Lesson Regarding Proofs of Loss
The best practice remains painfully simple. Submit a proof of loss. When an insurer requests a sworn proof, the policyholder should provide it within the policy deadline if possible. If the amount is still being investigated, the proof can identify the presently known amount, explain that the investigation continues, and reserve the right to supplement or amend it.
If additional time is needed, request a written extension before the deadline expires. Ask for extensions if the proof of loss is a timed limit rather than a demand proof of loss. I strongly suggest public adjusters read the following blog and everything cited within it: Can an Insurer Demand Multiple Proofs of Loss? A Partial Proof May Be Enough.
Many property claims are investigated, negotiated, paid, and closed without anybody ever signing a formal proof of loss, even though the policy technically requires one. The insurer may never request it, may adjust the claim based on estimates and inventories, or may act in a manner supporting waiver. This routine claims practice does not make the policy language disappear if litigation then is required. Filing a sworn proof of loss is far less expensive than a federal appeal.
Thought For The Day
“We will continue to manage risk responsibly, adapt thoughtfully and act in the best interests of those who place their trust in us.”
—Jamie P. Whisnant, Chairman and Chief Executive Officer of Auto-Owners Insurance Company
1 Ranjitkar v Owners Ins. Co., No. 1:25-cv-00900 (D. Colo. July 28, 2026). See Owners’ Motion for Summary Judgment and Ranjitkar’s Response in Opposition.
2 Hartford Fire Insurance Company v. Hammond, 41 Colo. 323, 92 P. 686 (Colo. 1907).
3 Bloom v. Wolfe, 547 P.2d 934 (Colo. App. 1976).
4 Circle C Beef Company v. Home Insurance Company, 654 P.2d 869 (Colo. App. 1982).
5 Russell L. Wald, Waiver of Insurance Policy Time Limitation for Presenting Notice and Proofs of Loss, 4 Am. Jur. Proof of Facts 2d 299 (originally published in 1975).
