United States District Court, D. Colorado
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
WILLIAM J. MARTÍNEZ JUDGE
Plaintiffs Eugene and Diane Gallegos (“Plaintiffs”) initiated this action on April 18, 2014 against their insurer, Defendant Safeco Insurance Company of America (“Defendant”). (ECF No. 1.) Plaintiffs allege that Defendant committed a breach of contract, acted in bad faith, and unreasonably delayed with regard to Plaintiffs’ coverage claim on their insurance policy issued by Defendant. (Id.) Before the Court is Defendant’s Motion for Summary Judgment (“Motion”). (ECF No. 75.) For the reasons set forth below, the Motion is granted.
On December 9, 2013, Plaintiffs’ home suffered a partial roof collapse allegedly caused by the weight of ice and snow. (ECF No. 83 at 1.) Plaintiffs contacted their insurer, Defendant, which inspected the residence and concluded that the roof damage was not covered under Plaintiffs’ insurance policy (“the Policy”). (Id. at 2.) Specifically, Defendant stated that the roof sustained damage prior to Plaintiffs’ purchase of their home. (ECF No. 75-5.) Defendant also maintained that a faulty fastener installation pattern, long-term moisture damage, and improper maintenance contributed to the loss. (Id.) Defendant thus denied Plaintiffs’ claim, and Plaintiffs initiated this action. (ECF No. 83.) Plaintiffs dispute Defendant’s denial of their claim, and maintain that ice and snow caused the collapse, not the poor condition of the roof or the other bases for denial on which Defendant relied. (ECF No. 78 at 15-16.)
II. LEGAL STANDARD
Summary judgment is appropriate only if 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(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). Whether there is a genuine dispute regarding a material fact depends upon whether the evidence presents a sufficient disagreement as to require submission to a jury or, conversely, is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 248-49 (1986); Carey v. U.S. Postal Serv., 812 F.2d 621, 623 (10th Cir. 1987).
A fact is “material” if it pertains to an element of a claim or defense, and a factual dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a reasonable juror could return a verdict for either party. Anderson, 477 U.S. at 248. The Court must examine the facts in the light most favorable to the nonmoving party, and resolve factual ambiguities against the moving party. Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987). The summary judgment standard thus favors a right to trial. See id.
Under Colorado law,  courts construe insurance policies “using general principles of contract interpretation.” Greystone Constr., Inc. v. Nat’l Fire & Marine Ins. Co., 661 F.3d 1272, 1283 (10th Cir. 2011). Therefore, absent an ambiguity, a policy’s language is construed according to its plain meaning. Id. However, in recognition of the unique relationship between insurer and insured, courts “construe ambiguous provisions against the insurer and in favor of providing coverage to the insured.” Id. Courts should read policy provisions as a whole rather than in isolation, and may not “extend coverage beyond that contracted for, nor delete [provisions] to limit coverage.” Cyprus Amax Minerals Co. v. Lexington Ins. Co., 74 P.3d 294, 299 (Colo. 2003).
Under an “all-risk” policy, such as that at issue here, once the insured claims a loss covered by the policy, the burden is on the insurer to prove that the policy excludes the proximate cause of the loss. Leprino Foods Co. v. Factory Mut. Ins. Co., 453 F.3d 1281, 1287 (10th Cir. 2006). Any exclusion must be clear and specific to be enforceable. Id. If the insurer shows that an exclusion applies, “[t]he burden then shifts back to the insured to prove the applicability of an exception to the exclusion.” Id. (citation omitted).
Here, Defendant argues that there is no coverage for Plaintiffs’ roof damage due to applicable Policy exclusions. (ECF No. 75.) Plaintiffs, however, respond that Defendant has waived its right to assert its stated grounds for the denial of their claim. (ECF No. 78.) The Court discusses both arguments below.
A. Whether Policy Coverage Exists
Defendant argues that, because excluded causes contributed to the sag in Plaintiffs’ roof, no coverage exists under the Policy for Plaintiffs’ claims. (ECF No. 75.) The Policy provides coverage for “accidental direct physical loss to property . . . except as limited or excluded.” (ECF No. 75-1 at 30.) However, the Policy contains an “anti-concurrent causation” clause that significantly limits Defendant’s liability, and reads in relevant part: “We do not cover loss caused directly or indirectly by any of the following excluded perils. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss.” (Id.) The following are among the Policy’s excluded perils:
5. continuous or repeated seepage or leakage of water or steam, or the presence or condensation of humidity, moisture or vapor which occurs ...