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Duff v. Allstate Vehicle and Property Insurance Co.

United States District Court, D. Colorado

October 30, 2018




         This matter comes before the court on Defendant Allstate Vehicle and Property Insurance Company's (“Defendant” or “Allstate”) Motion for Summary Judgment [#26, filed May 7, 2018] (“Motion”). The Motion is before the court pursuant to the Order of Reference dated October 5, 2017 [#18], 28 U.S.C. § 636(c), Fed.R.Civ.P. 73, and D.C.COLO.LCivR 72.2. The court has carefully considered the Motion and related briefing, the entire case file, and the applicable case law. For the following reasons, Allstate's Motion for Summary Judgment is GRANTED.


         Plaintiff Nicholas Duff (“Plaintiff” or “Mr. Duff”) commenced this action on June 30, 2017, by filing a Complaint in the District Court for Pueblo County, Colorado. [#4]. Plaintiff asserts three claims for Breach of Contract, Bad Faith Breach of Insurance Contract, and “Statutory Bad Faith Pursuant to C.R.S. §§ 10-3-1113(3), 1115, 1116, ” arising out of property loss resulting from a wind storm in March 2017 which followed an earlier hail storm in August 2016. [Id.] On August 11, 2017, Allstate removed the action to this court asserting jurisdiction pursuant to 28 U.S.C. § 1332. See [#1].

         On October 11, 2017, the court held a Scheduling Conference at which it set certain pretrial dates and deadlines, including deadlines of April 9, 2018 by which to complete discovery, February 8, 2018 by which to designate principal experts, and March 12, 2018 by which to designate rebuttal experts. [#19; #20]. On the Parties' joint motion, the court subsequently extended these deadlines to May 21, 2018, March 22, 2018, and April 12, 2018, respectively. [#24; #25].

         On May 7, 2018, Allstate filed the Motion for Summary Judgment as to all three claims. [#26]. Shortly thereafter, Plaintiff filed a motion for extension of time to designate expert witnesses on the basis that his expert “was unable to inspect the affected property until the passage of the deadline.” [#28]. The court struck the motion without prejudice for failure to comply with Local Rules of Practice 6.1(c) and 7.1(a). [#29]. On May 29, 2018, Plaintiff filed a Response to the Motion for Summary Judgment, [#30], to which he attached the declaration of Neil Hall and Mr. Hall's expert report, [#30-1]; and, approximately one week later, he filed an amended motion for extension of time to designate expert witness, [#31]. In the amended motion, counsel for Plaintiff changed his explanation for the delay and stated that the “expert designations were timely prepared however not filed or propounded to the other side of which was not discovered until a subsequent file review post a staff turnover.” [#31 at 2]. The certificate of conferral represented that counsel for Defendant would “think about it.” [Id.] The court ordered Defendant to file a response or notice indicating its position with respect to the amended motion, [#32]. Defendant thereafter filed a response opposing Plaintiff's request on the bases of no good cause and no explanation for the delay, asserting that the extension would substantially delay the case and prejudice Allstate, and asking that the court not consider Neil Hall's declaration or report as Plaintiff had never disclosed Mr. Hall as a witness. [#33]. The following day, Defendant filed a Reply in support of its Motion for Summary Judgment [#34]. On June 14, 2018, the court denied the amended motion, noting that Plaintiff did not renew his motion for an extension of the principal expert deadline until approximately two and a half months after expiration of the deadline and almost one month after the court had ruled on the initial motion, noting that the motion failed to meet the burden imposed by Federal Rule of Civil Procedure 16(b), and finding that extending the deadline would result in prejudice to Defendant and overall undue delay in the proceeding. [#35]. The court ruled that it would not consider Mr. Hall's previously undisclosed report in its adjudication of the Motion for Summary Judgment. [Id.]

         Now, having reviewed the Parties' briefing, the entire docket, and the applicable case law, this court finds that oral argument would not materially assist in the disposition of the Motion for Summary Judgment.


         Summary judgment is appropriate only 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). “A ‘judge's function' at summary judgment is not ‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986)). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or conversely, is so one-sided that one party must prevail as a matter of law. Anderson, 477 U.S. at 248-49; Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000); Carey v. U.S. Postal Service, 812 F.2d 621, 623 (10th Cir. 1987). A fact is “material” if it pertains to an element of a claim or defense; a factual dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a reasonable party could return a verdict for either party. Anderson, 477 U.S. at 248. “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing First Nat. Bank of Ariz. v. Cities Service Com, 391 U.S. 253, 289 (1968)).

         When, as here, the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden at the summary judgment stage by identifying “a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (citation omitted). “The movant bears the initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.” Id. at 670-71. Once the movant meets this initial burden, the nonmovant assumes the burden to put forth sufficient evidence to demonstrate the essential elements of the claim such that a reasonable jury could find in his favor. See Anderson, 477 U.S. at 248; Simms v. Okla. ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999). Conclusory statements based merely on speculation, conjecture, or subjective belief are not competent summary judgment evidence. See Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). And 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. See10B Charles Alan Wright, et al., Federal Practice and Procedure § 2738 at 356 (3d ed.1998).


         The Policy

         The following facts are taken from the Motion for Summary Judgment and associated briefs and are undisputed.[1] On July 8, 2016, hail predicted to be greater than 1.00 inch in diameter occurred at 4213 Widener Street in Pueblo, CO, 81008-2802 (the “Residence”). [#26-11 at 52, 57 (Expert Report of William Badini)]. In or around August 2016, Plaintiff purchased the Residence, [#26-12 at 30:1-3], also obtained from Allstate Policy 987718579 (the “Policy”), which has an effective date of August 23, 2016. [#26-1 at ¶ 3; #26-2 at 4]. The Policy provides coverage for property only to the extent that the damage was incurred during the policy period; in other words, the Policy does not cover any damage or conditions that existed prior to August 23, 2016. [#26-1 at ¶ 4; #26-2 at 14-15]. Plaintiff testified he understood that the effective date of the Policy is August 23, 2016, and that only losses occurring during the policy period are covered. [#26-12 at 81:1-10]. The Policy contains a clause voiding coverage in the event the policyholder or his agents misrepresent or conceal material facts. Specifically, the Policy states in pertinent part:

Misrepresentation, Fraud Or Concealment
We do not cover any loss or occurrence in which any insured person has concealed or misrepresented any material fact or circumstance.

[#26-2 at 16]. And the Policy provides that Plaintiff cannot bring an action against Allstate unless he has complied ...

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