United States District Court, D. Colorado
KERRY FISHER and DEBORAH FISHER, Plaintiffs / Counter Defendants,
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, S.I., Defendant / Counter Claimant.
ORDER ON MOTION FOR RECONSIDERATION OF COURT'S
ORDER RE: DEFENDANT'S MOTION FOR SUMMARY
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.
parties filed cross-motions for summary judgment, which were
resolved in my Order dated June 14, 2018, ECF No. 80.
Plaintiffs have requested that I reconsider the portion of
the Order granting summary judgment to the Defendant on
Plaintiffs' claim for damaged roof metals caused by a
June 2015 wind and hail storm. See Id. at 15-17. For
the following reasons, Plaintiffs' Motion for
Reconsideration [filed July 12, 2018; ECF No. 84] is
move to alter or amend the judgment against them under
Federal Rule of Civil Procedure 59(e). The Tenth Circuit has
outlined three major grounds that justify reconsideration:
(1) an intervening change in the controlling law; (2) the
availability of new evidence; and (3) the need to correct
clear error or prevent manifest injustice. Servants of
Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
A motion for reconsideration is not an appropriate vehicle
“to revisit issues already addressed or advance
arguments that could have been raised in prior
briefing.” Id. But it “is appropriate
where the court has misapprehended the facts, a party's
position, or the controlling law.” Id.;
see also Phelps v. Hamilton, 122 F.3d 1309, 1324
(10th Cir. 1997) (“A Rule 59(e) motion to alter or
amend the judgment should be granted only to correct manifest
errors of law or to present newly discovered evidence.”
(quoting Comm. for the First Amendment v. Campbell,
962 F.2d 1517, 1523 (10th Cir. 1992))).
dispute centers on Defendant's refusal to cover hail
damage to Plaintiffs' roof metals. The applicable
insurance policy provides, in relevant part, that the insurer
“will not pay for any damage caused by hail to any
metal vent, flashing, drip edge, ridge, valley, accessory, or
trim unless such metal component . . . will no longer: (1)
prevent water from entering the building; or (2) perform any
other intended function.” See Order at 3.
Plaintiffs argue that I erroneously determined as a matter of
law that the damage to their roof metals was not a covered
event under this provision. Their argument has two
components, both of which relate to functionality. First,
they contend I erred in determining that the damage to the
roof metals did not impact their function. Second, they
contend I failed to address their argument that the phrase
“will no longer . . . perform any other intended
function” is ambiguous.
my analysis by recapping the parties' arguments during
their earlier briefing on those issues, as the scope of those
arguments affects my inquiry. The parties filed cross-motions
for summary judgment. See ECF No. 37 & 38. In
its motion for summary judgment, Defendant argued that
cosmetic damage to the roof metals was not covered under the
policy. Am. Family's Mot. for Summ. J. 11-12, ECF No. 37.
In response, Plaintiffs disagreed that the policy even spoke
to cosmetic damage. See Resp. to Def's Mot. for
Summ. J. 11, ECF No. 51. They then took issue with
Defendant's characterization of the damage as
“cosmetic”-noting that the appraisal award
“found that the metals were damaged to the extent that
they had to be replaced.” Id. Plaintiffs
highlighted the statement in the appraisal that “the
damage was so severe it could be seen from the ground.”
Id. at 12. In addition, Plaintiffs asserted that the
term “perform any other intended
function” was “fairly ambiguous.”
Id. (emphasis in original). With respect to
functionality, Plaintiffs did not allege that the roof metals
would no longer prevent water from entering the building; the
only argument advanced in their response was the conclusory
allegation that aesthetics is part of an “intended
function” in a “high-end, covenant controlled
community, ” id. Ultimately, I concluded that
Plaintiffs had not produced any evidence indicating that the
damage to the roof metals “affected their intended
purpose(s)” and that Plaintiffs had not
“establish[ed] the roof's lack of functionality,
” such that summary judgment on this issue was
warranted. Order at 16 & n.2. In reaching this
conclusion, I did not expressly consider whether the
contractual language underlying the parties' dispute was
clear or ambiguous.
Motion for Reconsideration, Plaintiffs now argue for the
first time that “the roofing metals are functionally
impaired because the dents will allow water to pool in the
bottoms of the gutters and not be directed away from the
dwelling, and this . . . sitting water will result in rusting
to the gutters that may allow holes to develop.” Mot.
for Recons. 2. This argument concerning the potential for
rust and holes cannot serve as a basis for a motion to
reconsider because it was not raised in the original briefs.
See Servants of Paraclete v. Does, 204 F.3d 1005,
1012 (10th Cir. 2000).
addition to raising this new argument, Plaintiffs repeat an
argument that I rejected in my Order for lack of evidentiary
support-namely, that cosmetic appearance could be an
“intended function.” See Order at 16.
Because I deemed Plaintiffs' allegation to be wholly
conclusory and unsupported by evidence, I did not
specifically address whether visible dents in the roof metals
and their attendant effect on the aesthetics of a roof in an
expensive community creates a triable issue of fact as to
whether the damage falls within “any other intended
function.” Cf. Dragoo v. Allstate Vehicle &
Prop. Ins. Co., No. 4:16-CV-984-O, 2018 WL 1536639, at
*4 (N.D. Tex. Jan. 5, 2018) (“Plaintiff points to some
evidence to support that the hail damage to his roof is not
cosmetic, therefore a fact issue exists.”). I believe
in their original motion, and here, Plaintiffs have woefully
failed to provide any factual basis for alleging an aesthetic
so, upon further reflection, I conclude that I should have
considered whether the contractual language underlying the
parties' dispute-“or any other intended
function”-is clear or ambiguous under prevailing
Colorado law: “We must implement the clear terms of the
agreement if the language of the contract is plain and
unambiguous. . . . Thus, the threshold inquiry . . . is
whether the contract is ambiguous.” Ad Two, Inc. v.
City & Cty. of Denver ex rel. Manager of Aviation, 9
P.3d 373, 380 (Colo. 2000). I now make this inquiry.
argue here (and in their original briefing on the motions for
summary judgment) that such term is ambiguous and that the
Court should allocate the burden on this issue to Defendant,
citing Colorado case law that requires the insurer to prove
that a policy exclusion applies. See, e.g., McGowan v.
State Farm Fire & Cas. Co., 100 P.3d 521, 523
(Colo.App. 2004) (“Exclusionary clauses exempting the
insurer from providing coverage in certain circumstances must
be written in clear and specific language and construed in
favor of coverage. . . . The insurer therefore has the burden
of demonstrating that the policy exclusion applies in the
particular instances at issue and that it is not susceptible
of any other reasonable interpretation.”).
review of case law interpreting insurance contracts in the
context of hail damage to a home shows the following. Courts
distinguish between functional versus aesthetic damage,
finding the two to be qualitatively different. Yet all courts
I surveyed have found aesthetic or cosmetic damage to a metal
roof to fall within the purview of the contractual term
“physical loss or damage.” See, e.g.,
Great Plains Ventures, Inc. v. Liberty Mut. Fire Ins.
Co., 161 F.Supp.3d 970, 977-78 (D. Kan. 2016) (same);
Advance Cable Co. v. Cincinnati Ins. Co., No.
13-cv-229, 2014 WL 975580 (W.D. Wis. June 20, 2014),
aff'd, 788 F.3d 743, 746-48 (7th Cir. 2015)
(construing “direct physical loss” and
“accidental loss or damage” and finding that
insured was entitled to coverage where hail dented a
rooftop). These courts interpreted “damage” or
“physical” to mean physical alteration, which
logically includes heavily dented metal roofing.
contract before me does not rely solely on physical damage to
define a covered event, however. To be sure, the current
insurance contract covers “damage” to roof
“metal” (which would logically include dents),
but only if the damage will no longer (1) prevent water from
entering the building or (2) perform any other
intended function. Many insurance contracts explicitly
exclude cosmetic or aesthetic damage (e.g., the one
in Dragoo); this one does not. Further, other
insurance contracts qualify the words “intended
function.” See, e.g., Hahn v. United Fire
& Cas. Co., No. 6:15-CV-00218 RP, 2017 WL 1289024,
at *4 (W.D. Tex. Apr. 6, 2017) (considering a policy that
excluded hail damage to metal unless the roof will no longer
“perform its intended function to keep out elements
over an extended period of time”) (emphasis
added)). Again, this contract does not contain that qualifier
on “intended function.” I could find no cases
interpreting the particular language used in this contract.
have previously noted, standard contract law applies to an
insurance contract. FDIC v. St. Paul Cos., 634
F.Supp.2d 1213, 1218 (D. Colo. 2008). “If the insurance
policy is unambiguous, it should be enforced according to its
plain terms.” Id. (quoting FDIC v. Am.
Cas. Co., 843 P.2d 1285, 1289-90 (Colo. 1992)).
“Only in an instance of ambiguity should the agreement
be construed against the insurer to find coverage.”
Id.; accord TBL Collectibles, Inc. v. Owners
Ins. Co., 285 F.Supp.3d 1170, 1199 (D. Colo. 2018)
(stating that ...