United States District Court, D. Colorado
LEWIS T. BABCOCK, District Judge.
This case is before me on Defendants The Phoenix Insurance Company, The Travelers Indemnity Company of America, St. Paul Fire and Marine Insurance Company, St. Paul Surplus Lines Insurance Company, and Travelers Property Casualty Company of America's (collectively referred to as "Travelers") and Defendant Everest National Insurance Company's ("Everest") Combined Motion for Summary Judgment Regarding Choice of Law [Doc #240]. By this motion, Travelers and Everest seek a determination that the claims asserted in this case are governed by Utah law. By separate summary judgment motion, Plaintiff Okland Construction Company, Inc. ("Okland") seeks, among other things, a determination that the claims asserted in this case are governed by Colorado law. See Doc #241. Thus, for purposes of judicial economy, I consider whether Utah or Colorado law is controlling in this case.
After consideration of the motion, all related pleadings, and the case file, I deny Travelers and Everest's motion for the reasons set forth below and conclude that the claims asserted in this case are governed by Colorado law.
This litigation arises out of the case of RiverGate Loft Condo. Ass'n v. RiverGate Loft Partners LLC, et al., Case No. 10-CV-19 in the La Plata County District Court for the State of Colorado (the "Underlying Case"), which in turn arose out of the construction of a residential/commercial project in Durango, Colorado known as the RiverGate Loft Condominiums (the "Construction Project"). Okland was the construction manager and general contractor for the Construction Project and a defendant in the Underlying Case.
Okland is a Utah corporation authorized to do business in Colorado with its principal place of business in Salt Lake City, Utah and offices in Arizona, Colorado, and Utah. Travelers is a Connecticut company with its principal place of business in Connecticut. Everest is a New Jersey company with its principal place of business in New Jersey. Both Travelers and Everest are licensed to transact business in Colorado.
Travelers issued a series of one-year commercial general liability ("CGL") policies to Okland covering the period from April 1, 2004 to April 1, 2010. Travelers also issued two professional liability ("PL") policies to Okland covering the periods of April 1, 2009 to April 1, April 1, 2011. Finally, Travelers issued three excess liability policies to Okland covering the period from April 1, 2004 to April 1, 2007. Everest issued three excess liability policies to Okland covering the period from April 1, 2007 to April 1, 2010. All of these policies were issued to Okland at its office in Salt Lake City, Utah. All premiums on these policies were paid by Okland from its office in Salt Lake City, Utah.
Travelers provided a defense to Okland in the Underlying Case. Prior to trial, Okland agreed to settle the Underlying Case for $11, 500, 000. Travelers paid $4, 000, 000 of the settlement amount, and Okland paid the remaining $7, 500, 000 via check listing the address for Okland's office in Salt Lake City, Utah and made payable to a Colorado law firm.
In its Complaint, Okland asserts claims against Travelers and Everest for breach of contract; bad faith breach of insurance contract; violation of C.R.S. § 10-3-1115 with a corresponding request for attorney fees and two times the covered benefit pursuant to C.R.S. § 10-3-1116; and declaratory relief. Though Travelers and Everest's motion does not specifically address Okland's claim for declaratory relief, this claim is derivative of Okland's breach of contract claim and therefore subject to the same choice of law analysis.
II. Standard of Review
The purpose of a summary judgment motion under Rule 56 is to assess whether trial is necessary. White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995). Rule 56 provides that summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The non-moving party has the burden of showing that there are issues of material fact to be determined. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A party seeking summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, interrogatories, and admissions on file together with affidavits, if any, which it believes demonstrate the absence of genuine issues for trial. Celotex, 477 U.S. at 323; Mares v. ConAgra Poultry Co., Inc., 971 F.2d 492, 494 (10th Cir. 1992). Once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried. Otteson v. United States, 622 F.2d 516, 519 (10th Cir. 1980); Fed.R.Civ.P. 56(e).
If a reasonable juror could not return a verdict for the non-moving party, summary judgment is proper and there is no need for a trial. Celotex, 477 U.S. at 323. The operative inquiry is whether, based on all documents submitted, reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). However, summary judgment should not enter if, viewing the evidence in a light most favorable to the nonmoving party and drawing all reasonable ...