United States District Court, D. Colorado
A. BRIMMER United States District Judge.
matter is before the Court on Plaintiff's Motion for
Partial Summary Judgment Regarding Chubb's Duty to Defend
[Docket No. 49] and Defendants' Motion for Summary
Judgment [Docket No. 51]. This Court has subject matter
jurisdiction pursuant to 28 U.S.C. § 1332.
Ciber, Inc. is an information technology (“IT”)
consulting company. Plaintiff's Response to
Defendants' Statement of Undisputed Material Facts 1;
Docket No. 57 at 4, ¶ 1. Defendant Great Northern
Insurance Company (“Great Northern”) issued three
primary insurance policies to plaintiff that together
provided general liability coverage from July 1, 2013 until
July 1, 2016 (collectively, the “primary
policies”). Defendants' Statement of Undisputed
Material Facts (“DSUMF”) 6; Docket No. 51 at 8-
9, ¶ 6. Defendant Federal Insurance Company
(“Federal”) issued plaintiff three umbrella
insurance policies (collectively, the “umbrella
policies”) that together provided excess coverage for
the same periods and used some of the same definitions as the
primary policies. DSUMF 13-15, 17-18.
September 30, 2008, plaintiff entered into a contract with
the Hawai'i Department of Transportation
(“HDOT”) to replace its legacy financial
management computer system with a new system (the
“project”). Ciber did not successfully complete
the project and HDOT terminated the contract. DSUMF 2-3. On
September 25, 2015, plaintiff filed a lawsuit against HDOT
alleging, in part, that plaintiff had been improperly
terminated for default and seeking breach of contract
damages. DSUMF 3. Ciber Inc. v. State of Hawaii
Department of Transportation, et al., No. 15-1-1881-09
ECN (Haw. 1st Cir. Ct.).
November 16, 2015, HDOT filed counterclaims against plaintiff
(the “HDOT counterclaims”), including breach of
contract and fraud. DSUMF 4; Plaintiff's Statement of
Undisputed Material Facts (“PSUMF”) 10; Docket
No. 50 at 3-4, ¶ 10; Docket No. 51-11 at 60, 68. On
November 18, 2015, plaintiff tendered HDOT's
counterclaims to defendants. PSUMF 13; DSUMF 23. On December
22, 2015, defendants denied coverage. PSUMF 14; DSUMF 24.
Plaintiff requested reconsideration of defendants'
decision, but was again rebuffed on July 14, 2016. PSUMF 19.
August 1, 2016, plaintiff filed its complaint against
defendants. Docket No. 1. On April 20, 2017, plaintiff filed
its motion for partial summary judgment. Docket No. 49.
Plaintiff seeks declaratory judgment that defendants have a
duty to defend the HDOT's counterclaims. Id. at
10. On the same day, defendants filed their motion for
summary judgment, seeking summary judgment on all of
plaintiff's claims. Docket No. 51.
STANDARD OF REVIEW
judgment is warranted under Federal Rule of Civil Procedure
56 when 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);
see Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248-50 (1986). A disputed fact is “material” if
under the relevant substantive law it is essential to proper
disposition of the claim. Wright v. Abbott Labs.,
Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only
disputes over material facts can create a genuine issue for
trial and preclude summary judgment. Faustin v. City
& Cty. of Denver, 423 F.3d 1192, 1198 (10th Cir.
2005). An issue is “genuine” if the evidence is
such that it might lead a reasonable jury to return a verdict
for the nonmoving party. Allen v. Muskogee, 119 F.3d
837, 839 (10th Cir. 1997).
nonmoving party may not rest solely on the allegations in the
pleadings, but instead must designate “specific facts
showing that there is a genuine issue for trial.”
Celotex, 477 U.S. at 324; see Fed. R. Civ.
P. 56(e). “To avoid summary judgment, the nonmovant
must establish, at a minimum, an inference of the presence of
each element essential to the case.” Bausman v.
Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir.
2001) (citing Hulsey v. Kmart, Inc., 43 F.3d 555,
557 (10th Cir. 1994)). “In applying this standard, we
view all facts and any reasonable inferences that might be
drawn from them in the light most favorable to the nonmoving
party.” Henderson v. Inter-Chem Coal Co.,
Inc., 41 F.3d 567, 569 (10th Cir. 1994).
Duty to Defend
Colorado law,  the duty to defend is separate and
distinct from an insurer's obligation to indemnify its
insured. See Hecla Mining Co. v. N.H. Ins. Co., 811
P.2d 1083, 1086 n.5 (Colo. 1991). While “[t]he duty to
indemnify relates to the insurer's duty to satisfy a
judgment entered against the insured, . . . [t]he duty to
defend concerns an insurance company's duty to
affirmatively defend its insured against pending
claims.” Cyprus Amax Minerals Co. v. Lexington Ins.
Co., 74 P.3d 294, 299 (Colo. 2003) (internal quotations
and citations omitted). As noted by the Colorado Supreme
[T]he duty to defend arises where the alleged facts even
potentially fall within the scope of coverage, but
the duty to indemnify does not arise unless the policy
actually covers the alleged harm. Where there is no
duty to defend, it follows that there can be no duty to
indemnify. However, where ...