United States District Court, D. Colorado
ORDER ON (1) PLAINTIFF EDGE CONSTRUCTION, LLC’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON DEFENDANT’S AFFIRMATIVE DEFENSES 1-6 (DOCKET NO. 60); (2) PLAINTIFF EDGE CONSTRUCTION, LLC’S MOTION FOR PARTIAL SUMMARY JUDGMENT (DOCKET NOS. 61 AND 65 - FILED UNDER RESTRICTION); (3) DEFENDANT OWNERS INSURANCE COMPANY’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR DETERMINATION OF LAW (DOCKET NO. 62); AND (4) PRETRIAL MOTIONS FOUND AT DOCKET NOS. 85, 86, 88, 100, 101, 102, 103, 104, 105, 106, 107, AND 108 104, 105, 106, 107, AND 108
MICHAEL J. WATANABE United States Magistrate Judge
This case is before this court for all purposes pursuant to the Court’s Pilot Program and 28 U.S.C. § 636(c) upon consent of the parties and the Order of Reference Upon Consent to Jurisdiction of Magistrate Judge issued by Chief Judge Marcia S. Krieger on May 8, 2014 (Docket No. 17; see Docket No. 15 - Consent).
Now before the court are the following three dispositive motions: (1) Plaintiff Edge Construction, LLC’s Motion for Partial Summary Judgment on Defendant’s Affirmative Defenses 1-6 (Docket No. 60); (2) Plaintiff Edge Construction, LLC’s Motion for Partial Summary Judgment (Docket Nos. 61 and 65 - Filed under Restriction); and (3) Defendant Owners Insurance Company’s Motion for Summary Judgment, or in the Alternative, Motion for Determination of Law (Docket No. 62). Defendant filed Responses to the first two motions (Docket Nos. 77 [Response to 65] and 92 [Response to Docket No. 61]), and Plaintiff filed a combined Reply (Docket No. 80) in support of its two motions as well as a Supplemental Reply (Docket No. 96) in support of Docket Nos. 61 and 65. Plaintiff filed a Response (Docket No. 75; exhibits in support Docket No. 76) to defendant’s motion (Docket No. 62), defendant filed a Reply (Docket No. 81), and with leave of court (Docket No. 83) plaintiff filed a Sur-reply (Docket No. 90 - filed under restriction).
The court has very carefully reviewed and considered these motion papers as well as applicable Federal Rules of Civil Procedure and case law. In addition, the court has taken judicial notice of the court file. The court now being fully informed makes the following findings, conclusions of law, and order.
This action was removed from Arapahoe County District Court. (See Docket No. 1). There were originally two plaintiffs in this action, Sable Cove Condominium Association (“Sable Cove”) and Edge Construction, LLC (“Edge” or “plaintiff”), which was the contractor that completed construction at the condominium community. Pursuant to orders by this court (Docket Nos. 25 and 28) on defendant’s Partial Motion to Dismiss (Docket No. 12) and plaintiffs’ Motion for Voluntary Dismissal (Docket No. 26), only Edge remains as a plaintiff, Edge’s common law bad faith claim was dismissed, and only two claims remain. The remaining claims are breach of contract and statutory bad faith pursuant to §§ 10-3-1113(3), 1115, 1116, C.R.S. These claims are based upon damage from a hail and wind storm on June 6, 2012, for which Sable Cove filed an insurance claim with its insurer, defendant Owners Insurance Company (“defendant”). Plaintiff alleges the following in the Complaint (Docket No. 4).
Defendant investigated the loss and agreed to pay for it. Defendant’s field adjuster calculated the loss in an estimate that included an overhead and profit charge of $153, 417.02,  for a total estimate of $891, 963.66, not including the cost of the permits the defendant agreed to pay. Sable Cove contracted with Edge to complete the roof repairs according to the defendant’s estimate. Edge completed the work, but defendant’s in-house adjuster then refused to pay the overhead and profit charges. As a result, Edge was not paid $153, 417.02 due under its contract with Sable Cove. Defendant in bad faith unreasonably denied this portion of Sable Cove’s claim. Both Sable Cove and Edge complained to defendant about this wrongful failure to pay.
On February 7, 2014, Sable Cove and Edge entered into a Post-Loss Assignment of Insurance Proceeds wherein Sable Cove assigned to Edge its unpaid, post-loss policy benefits of $153, 417.02 for the subject overhead and profit for the work that has already been completed. (See Ex. B to Compl., Docket No. 4). In addition, Edge qualifies as a “first-party claimant” under § 10-3-1115, C.R.S., and is entitled to sue defendant under § 10-3-1116, C.R.S.
Summary Judgment Standard
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. Board of County Comm’rs of the County 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). When reviewing a summary judgment motion, a court must view the evidence in the light most favorable to the non-moving party. McBeth v. Himes, 598 F.3d 708, 715 (10th Cir. 2010).
“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.” Id. “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. . . . Unsupported allegations without ‘any significant probative evidence tending to support the complaint’ are insufficient . . . as are conclusory assertions that factual disputes exist.” Id.; Robertson, 78 F.Supp.2d at 1146 (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.” Southway, 149 F.Supp.2d 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.
As correctly asserted by defendant, the first dispositive motion before the court, Plaintiff Edge Construction, LLC’s Motion for Partial Summary Judgment on Defendant’s Affirmative Defenses 1-6 (Docket No. 60), may be quickly disposed of because Edge failed to provide any evidentiary support for its claim that it is entitled to judgment on defendant’s first six affirmative defenses. Instead, Edge merely recites a narrative over three pages long of what it characterizes as “undisputed facts” without citing any factual or evidentiary support. In addition, for each of the six affirmative defenses, plaintiff merely moves for summary judgment based upon a conclusory claim of defendant’s “lack of evidence.” Edge failed to identify 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. Furthermore, it appears that Edge’s narrative “undisputed facts” includes arguments of counsel. Moreover, in response, defendant pieced through Edge’s narrative and has detailed statements it submits are disputed (Docket No. 77 ...