United States District Court, D. Colorado
PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT RE: STATUTORY DELAY (DOCKET NO.
44) AND DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DOCKET NO. 45)
MICHAEL J. WATANABE, Magistrate Judge.
Now before the court for a report and recommendation are Plaintiff's Motion for Partial Summary Judgment Re: Statutory Delay (Docket No. 44) and Defendant's Motion for Summary Judgment (Docket No. 45). The court has carefully considered the subject motions, the responses (Docket Nos. 47 & 48), and the replies (Docket Nos. 51 & 52). In addition, the court has taken judicial notice of the court's file, and has considered the applicable Federal Rules of Civil Procedure and case law. The court now being fully informed makes the following findings of fact, conclusions of law, and orders.
I. Summary of the Case
Plaintiff Joseph Edward Martinez filed his Complaint (Docket No. 4) in Pueblo County District Court on July 24, 2012. This matter was removed to this court on September 10, 2012, pursuant to 28 U.S.C. § 1332. Pursuant to 28 U.S.C. § 636(c), an Order of Reference (Docket No. 15) was entered on January 11, 2013 assigning this case for final disposition to Magistrate Judge Watanabe.
This matter involves a homeowners insurance policy obtained by plaintiff and issued by defendant Hartford Underwriters Insurance Company. The insured premises was burglarized on or about February 12, 2012. The dispute between the parties involves compensation for the personal property losses incurred as a result of the burglary. Plaintiff's Complaint (Docket No. 4) includes three claims against defendant: (1) breach of contract; (2) common law bad faith; and (3) statutory delay. The following facts, material to the subject motions, are undisputed unless otherwise noted.
Plaintiff maintains a residence at 1712 Englewood Drive in the city of Pueblo, Colorado. Docket No. 4, ¶ 1. Plaintiff's adult son, Joseph Ryan Martinez ("Ryan Martinez"), resided at this at this house during the relevant time period. See Docket No. 45-3, at 1-2. Plaintiff was the named insured under a homeowners insurance policy, number 55 RBA 587276 (the "Policy"), issued by defendant. Id., ¶ 3. The Policy was in effect from June 5, 2011 to June 5, 2012. Docket No. 45-4, at 1.
In relation to a reported burglary which occurred on or about February 12, 2012, plaintiff brought an insurance claim for the theft of property from his residence. Docket No. 4, ¶¶ 5-7. The items reported as stolen included a safe, guns, household appliances, and tools, including commercial-grade welding tools. See Docket No. 45-2. Accordingly to plaintiff, the total value for the personal property stolen was at least $54, 024.08. Docket No. 4, ¶ 10. On March 30, 2012, defendant tendered a check for $24, 527.85. Id., at 9. Plaintiff disputed this amount. Id., at 10.
II. Standard of Review
Rule 56(a) provides that summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "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." Robertson v. Bd. of Cnty. Comm'rs of the Cnty. of Morgan , 78 F.Supp.2d 1142, 1146 (D. Colo. 1999) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986); Mares v. ConAgra Poultry Co. , 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 the complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.... These facts may be shown by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings by themselves.'" Southway v. Central Bank of Nigeria , 149 F.Supp.2d 1268, 1273 (D. Colo. 2001), aff'd, 328 F.3d 1267 (10th Cir. 2003). However, "[i]n order to survive summary judgment, the content of the evidence that the nonmoving party points to must be admissible. The nonmoving party does not have to produce evidence in a form that would be admissible at trial, but the content or substance of the evidence must be admissible. Hearsay testimony that would be inadmissible at trial cannot be used to defeat a motion for summary judgment because a third party's description of a witness supposed testimony is not suitable grist for the summary judgment mill." Adams v. Am. Guarantee & Liability Ins. Co. , 233 F.3d 1242, 1246 (10th Cir. 2000) (internal citations and quotations omitted).
"Summary judgment is also appropriate when the court concludes that no reasonable juror could find for the non-moving party based on the evidence presented in the motion and response." Southway , 149 F.Supp.2d at 1273. "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." Id . "Unsupported allegations without any significant probative evidence tending to support the complaint' are insufficient... as are conclusory assertions that factual disputes exist." Id . (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250 (1986); quoting White v. York Int'l Corp. , 45 F.3d 357, 360 (10th Cir. 1995)). "Evidence presented must be based on more than mere speculation, conjecture, or surmise' to defeat a motion for summary judgment." Id. at 1274. "Summary judgment should not enter if, viewing the evidence in a light most favorable to the non-moving party and drawing all reasonable inferences in that party's favor, a reasonable jury could return a verdict for that party." Id. at 1273.
III. Defendant's Motion for Summary Judgment
In its Motion for Summary Judgment (Docket No. 45), defendant argues it is entitled to summary judgment as to all three of plaintiff's claims. Defendant maintains that due to their misrepresentations and omissions, plaintiff and Ryan Martinez (the "insureds") violated the Policy's Concealment or Fraud clause.
The Policy contains the following clause:
Q. Concealment or Fraud
We provide coverage to no "insureds" under this policy if, whether before or after a ...