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Mock v. Allstate Insurance Co.

United States District Court, D. Colorado

September 13, 2018

MARK MOCK, an individual, and SUSAN MOCK, an individual, Plaintiff,
v.
ALLSTATE INSURANCE COMPANY, an Illinois company, Defendant.

          ORDER

          KRISTEN L. MIX, UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Defendant's Motion for Summary Judgment [#39] [1] (the “Motion”). Plaintiffs filed a Response [#45] in opposition to the Motion, and Defendant filed a Reply [#51]. The Court has reviewed the Motion, the Response, the Reply, the entire docket, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Motion [#39] is GRANTED.[2]

         I. Factual Background [3]

         Plaintiffs purchased homeowners insurance coverage from Defendant for their home in Greenwood Village, Colorado. The applicable insurance policy covers “sudden and accidental direct physical loss to [the] property.” Ex. A [#39-1] at 24. It does not cover loss to the property caused by “design, ” “workmanship, ” or “construction.” Id. at 26. It also does not cover loss “when there are two or more causes of loss to the covered property, and the predominant cause of loss is excluded” by other provisions of the policy. Id. at 27.

         A hail storm hit the property in May of 2015. Motion [#39] at 4; Response [#45] at 3. Plaintiffs initially made a claim under their insurance policy for damage to the roof, then subsequently added a claim for damage to their EIFS stucco system.[4] Ex. B [#39-2] at 1-2 ¶¶ 5, 8. Before filing suit, Plaintiffs hired an engineering firm, SBSA, to inspect their EIFS stucco system. Ex. E [#39-5] at 39-40, 94. The parties agree that the EIFS stucco system was installed when the house was originally built in 1994. Ex. B-18 [#39-2] at 83; Exh. B-9 [#39-2] at 42. SBSA concluded that water intrusion and damage was the result of an inherent flaw in the EIFS stucco system when it was installed in the Plaintiffs' residence. Ex. B-18 [#39-2] at 83. Defendant also hired an engineering firm, Rimkus Consulting, to inspect the property. Ex. B [#39-2] at 4 ¶ 18. Rimkus Consulting determined that the damage to the EIFS system and stucco in Plaintiffs' home had occurred over the years and that the cause of that damage was due to the defective nature of the EIFS system. Ex. B-9 [#39-2] at 43-45. Based on this conclusion, Defendant denied Plaintiffs' claim for damages to their EIFS system and stucco because the loss was not sudden and accidental and was the result of improper design and/or construction. Ex. B [#29-2] at 5 ¶¶ 21-22.

         Plaintiffs filed this lawsuit on December 16, 2016. See Compl. [#6] at 1. They have asserted four claims: (1) entry of a declaratory judgment “fixing and determining the rights and obligations of the Parties under the policy and interpreting and resolving the issues under the policy;” (2) breach of contract; (3) common law insurance bad faith; and (4) violation of Colo. Rev. Stat. §§ 10-3-1115 and 1116. Id. ¶¶ 14-34. In the present Motion [#39], Defendant asserts that there is an absence of a genuine issue of material fact and that it is entitled to judgment as a matter of law on all claims.

         II. Standard of Review

         The purpose of a motion for summary judgment pursuant to Fed.R.Civ.P. 56 is to assess whether trial is necessary. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Pursuant to Fed.R.Civ.P. 56(a), summary judgment should be entered if the pleadings, the discovery, any affidavits, and disclosures on file show “that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” An issue is genuine if the evidence is such that a reasonable jury could resolve the issue in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it might affect the outcome of the case under the governing substantive law. Id.

         The burden is on the movant to show the absence of a genuine issue of material fact. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (citing Celotex, 477 U.S. at 323). When the movant does not bear the ultimate burden of persuasion at trial, the “movant may make its prima facie demonstration [of the absence of a genuine issue of material fact] simply by pointing out to the [C]ourt a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.” Id. at 671. If the movant carries the initial burden of making a prima facie showing of a lack of evidence, the burden shifts to the nonmovant to put forth sufficient evidence for each essential element of his claim such that a reasonable jury could find in his favor. See Anderson, 477 U.S. at 248. The nonmovant must go beyond the allegations and denials of his pleadings and provide admissible evidence, which the Court views in the light most favorable to him. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir. 1995) (citing Celotex, 477 U.S. at 324). Conclusory statements based merely on conjecture, speculation, or subjective belief are not competent summary judgment evidence. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). The nonmoving party's evidence must be more than “mere reargument of [his] case or a denial of an opponent's allegation” or it will be disregarded. See 10B Charles Alan Wright et al., Federal Practice and Procedure § 2738 (4th ed. 2017).

         Only documents that meet the evidentiary requirements of Fed.R.Civ.P. 56 may be considered for purposes of summary judgment. Rule 56(c) provides that:

         (1) A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials[.] . . .

         (3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.

         (4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the ...


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