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Cheyenne Hotel Investments, LLC v. Colorado Casualty Insurance Co.

United States District Court, D. Colorado

May 28, 2014

CHEYENNE HOTEL INVESTMENTS, LLC, Plaintiff,
v.
COLORADO CASUALTY INSURANCE COMPANY, Defendant.

ORDER GRANTING DEFENDANT COLORADO CASUALTY INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT

RICHARD P. MATSCH, Senior District Judge.

This civil action claims insurance coverage for damage to a Homewood Suites Hotel in Colorado Springs, Colorado (the hotel property). The complaint alleges that the Plaintiff was insured under a general hazard insurance policy issued by Westfield Insurance Company (Westfield) for the period from November 30, 2010 to November 30, 2011, and that the Plaintiff was insured under a general hazard insurance policy issued by Colorado Casualty Insurance Company (Colorado Casualty) for the earlier period of November 30, 2009 to November 30, 2010. The complaint states that in 2011, the Plaintiff incurred damages from a loss covered under the Westfield policy, and in the course of remediating and investigating that loss, the Plaintiff discovered damages that occurred before the coverage period of the Westfield policy. The Plaintiff states it made demand for payment from Colorado Casualty and received no response. The complaint states one claim against Colorado Casualty and one claim against Westfield, alleging the damage occurred during the coverage period of each policy and was the result of an insured peril. The Plaintiff seeks to recover approximately $140, 000 for the cost of repairs to the hotel property, attorney's fees, costs and interest.

The Plaintiff's claim is further described in a proposed Scheduling Order which the parties submitted to the court in anticipation of a scheduling conference held on October 2, 2013. (Def.'s Ex. B). In that proposed order, the Plaintiff stated that "it seeks coverage for the cost to replace the entire roof of its hotel due to hail damage." ( Id. at p. 3).

The Plaintiff has voluntarily dismissed its claim against Defendant Westfield Insurance Company.

Defendant Colorado Casualty moved for summary judgment of dismissal, arguing that the Plaintiff's claim against it is barred by the time limits for filing claims under its Policy.

The following facts are not in dispute:

In March 2011, Westfield retained Jeff Taylor, a claims adjuster employed by Vericlaim, to inspect the hotel property. (Def.'s Ex. D, Taylor aff.). Taylor inspected the hotel property on March 15, 2011, and prepared a report dated March 28, 2011, concerning his opinions as to the nature, extent, and cause of certain damage to the property. (Def.'s Ex. D-1). In that report, Taylor stated that the building's roof had been damaged by wind and hail, and he opined that "[t]he hail damage is from a severe hail storm that hit this area on 7/4/2010." ( Id. ).

The Plaintiff's claim against Colorado Casualty is based on a commercial insurance policy, No. CBP 2779169, issued by Peerless Indemnity Insurance Company to Homewood Suites DBA Cheyenne Hotels, LLC, for the policy period from May 7, 2010 through May 7, 2011. (Def.'s Ex. A). The Policy was canceled on November 30, 2010. ( Id. ).

The subject Policy provides in pertinent part:

COMMERCIAL PROPERTY CONDITIONS
This Coverage Part is subject to the following conditions, the Common Policy Conditions and applicable Loss Conditions and Additional Conditions in Commercial Property Coverage Forms.
***
D. LEGAL ACTION AGAINST US
No one may bring a legal action against us under this ...

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