County District Court No. 15CV30103 Honorable Todd L. Taylor,
& Giovanini, LLC, Douglas Meier, Lakewood, Colorado, for
Campbell, Latiolais & Averbach, LLC, Kirsten M. Dvorchak,
Colin C. Campbell, Denver, Colorado, for Defendant-Appellee.
1 In this insurance coverage case, plaintiff, Michael
Martinez, appeals the district court's entry of summary
judgment, pursuant to C.R.C.P. 56(c), in favor of defendant,
American Family Mutual Insurance Company (American Family).
Background and Procedural History
2 At all times relevant to this appeal, Martinez owned a home
in Erie, Colorado. The home had a finished basement with
windows below the ground, which were surrounded by window
3 On August 3, 2013, there was a severe thunderstorm in Erie.
According to Martinez's complaint, some of the heavy hail
and rain collected at the base of his window wells, and the
hail at the base of the window wells prevented the
accumulating rainwater from percolating into the ground. As
alleged by Martinez, the rainwater accumulated on top of the
hail to such an extent that it eventually overflowed the
basement windows, seeped into the basement, and caused
substantial damage to his home and personal property.
4 Martinez filed a claim with his insurer, American Family.
After conducting an investigation, American Family concluded
that the damage to Martinez's home was caused by either
"flooding" or "surface water, " and was,
therefore, expressly excluded from coverage under
Martinez's insurance policy. American Family denied
Martinez's claim on these grounds.
5 Thereafter, Martinez filed suit, seeking a declaratory
judgment on the issue of coverage. Martinez also asserted
claims for contractual and extra-contractual damages.
American Family filed a motion for summary judgment on the
issue of coverage, arguing that the insurance policy's
water damage exclusion for "flood" and
"surface water" applied, as a matter of law, to the
damage to Martinez's home.
6 In a lengthy and thorough written order, the district court
granted American Family's motion for summary judgment,
concluding that the rain and hail that collected in the
window wells was "surface water" and, thus, the
loss from the resulting damage was excluded by the plain
language of the insurance policy.
7 This appeal followed.
Standard of Review and Applicable Law
8 An insurance policy is a contract and, thus, its meaning is
a question of law that we review de novo. Grippin v.
State Farm Mut. Auto. Ins. Co., 2016 COA 127,
¶ 9. In construing an insurance policy, we apply
well-settled principles of contract interpretation,
Cyprus Amax Minerals Co. v. Lexington Ins. Co., 74
P.3d 294, 299 (Colo. 2003), and give effect to the intent and
reasonable expectations of the parties thereto, see
Grippin, ¶ 9. In addition, we read the provisions
of the policy as a whole, construing the policy so that all
provisions are harmonious and none is rendered meaningless.
Sachs v. Am. Family Mut. Ins. Co., 251 P.3d 543, 546
9 We review an order granting a motion for summary judgment
de novo. Georg v. Metro Fixtures Contractors, Inc.,
178 P.3d 1209, 1212 (Colo. 2008). Summary judgment is
appropriate only if the pleadings and supporting
documentation demonstrate that no genuine issue of material
fact exists and the moving party is entitled to judgment as a
matter of law. C.R.C.P. 56(c).
10 In support of its motion for summary judgment, the moving
party carries the initial burden of demonstrating that there
is no genuine issue of material fact. Greenwood Tr. Co.
v. Conley, 938 P.2d 1141, 1149 (Colo. 1997). When a
party moves for summary judgment on an issue upon which the
party would not bear the burden of persuasion at trial, the
moving party's initial burden of production may be
satisfied simply by demonstrating an absence of evidence in
the record to support the nonmoving party's case.
Casey v. Christie Lodge Owners Ass'n, 923 P.2d
365, 366 (Colo.App. 1996). "[O]nce the moving party has
met its initial burden of production, the burden shifts to
the nonmoving party to establish that there is a triable
issue of fact." Greenwood Tr., 938 P.2d at
1149. If the nonmoving party fails to meet this burden,
summary judgment for the moving party should be granted.
Casey, 923 P.2d at 366.
11 In reviewing an order granting summary judgment, we give
the nonmoving party the benefit of all favorable inferences
that may reasonably be drawn from the undisputed facts, and
all doubts must be resolved against the moving party.
Brodeur v. Am. Home Assurance Co., 169 P.3d 139, 146
12 On appeal, Martinez raises two contentions. First, he
contends that damage to his basement and personal property
was not caused by "surface water." Second, he
contends that, even if the water was surface water, it lost
that character when it entered the window wells. Thus,
Martinez argues that his policy did not bar coverage as a
matter of law and that, accordingly, the district court erred
in granting American Family's motion for summary
13 We note as a preliminary matter that Martinez's
various versions of the events at issue changed over time.
14 Initially, on August 22, 2013, prior to the initiation of
this lawsuit, Martinez told an American Family claims
about a foot or two of hail . . . fell on the ground and fell
into my window wells. [O]bviously the hail . . . seeped
through the window . . . as it was melting, [and] that caused
the water to come through the window and it flooded my
15 However, in his complaint, filed on February 6, 2015,
Martinez alleged that his home
incurred accidental direct physical loss as a result of a
severe hail and rainstorm. The hail was so heavy it filled
the window wells not allowing rainwater to drain. As a
result, the rainwater that went directly into the window
wells could not drain and entered the [home] through the
windows. The rain did not touch the ground and was above the
surface of the ground at all times before entering into the
16 Thus, contrary to his initial claim, Martinez appeared to
allege that the melted hail did not damage his home, but that
rain on top of the hail did so.
17 Nine months after filing his complaint, in an affidavit
filed with his response to American Family's motion for
summary judgment, Martinez further elaborated on his more
recent account. In his affidavit, Martinez averred as
On August 3, 2013 my home was hit by a hailstorm and
rainstorm. The hail was so heavy that it filled the window
wells, not allowing rainwater to drain. I also believe the
gutters filled with hail so that rainwater ran off the roof
and directly into the window wells. As a result, rainwater
that fell from the sky and ran off the roof went directly
into the window wells and could not drain. The rainwater
never touched the ground and was never on the surface of the
ground before entering my home and causing damage.
18 On appeal, Martinez reasserts the version of events
contained within his complaint and affidavit. American Family
argued below, and argues now on appeal, that, under any
version of events alleged by Martinez, his insurance policy
barred coverage as a matter of law. For the reasons set forth
below, we agree with ...