United States District Court, D. Colorado
THE STEEPLECHASE II CONDOMINIUM ASSOCIATION, INC., a Colorado non-profit corporation, Plaintiff,
THE TRAVELERS INDEMNITY COMPANY, a foreign corporation, Defendant.
A. BRIMMER UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiff's Motion for
Partial Summary Judgment [Docket No. 31], Travelers Indemnity
Company's Motion for Summary Judgment [Docket No. 35],
and Defendant Travelers Indemnity Company's Motion to
Exclude Testimony Under Fed.R.Evid. 702 [Docket No. 45]. The
Court has jurisdiction pursuant to 28 U.S.C. § 1332.
case involves a dispute between the parties over payment of
plaintiff's insurance claim for hail damage. Plaintiff is
a homeowner's association located in Littleton, Colorado.
Docket No. 1 at 2, ¶ 5. At all times relevant to this
action, plaintiff held an insurance policy with defendant.
Docket No. 35 at 3, ¶ 3. The policy includes a provision
stating that “[n]o one may bring a legal action against
[defendant] under this policy unless . . . [t]he action is
brought . . . within 2 years after the date on which the
direct physical loss or damage occurred.” Docket No. 36
at 5, ¶ 20.
14, 2014, plaintiff's property suffered damage as the
result of a hail and wind storm. Docket No. 35 at 3, ¶
2; Docket No. 31 at 2, ¶ 1 (indicating date of loss of
June 14, 2014). As early as July 28, 2014, plaintiff believed
that it was owed a full roof replacement due to significant
hail damage. Docket No. 35 at 5, ¶ 11. Plaintiff filed a
claim with defendant on or about August 8, 2014. Docket No.
31 at 2, ¶ 2. Altitude Property Claims, defendant's
third-party adjuster, performed an inspection of the
property's roofs and subsequently provided a report of
damages on August 29, 2014. Docket No. 31 at 3, ¶ 3. The
report found a total of seven wind-damaged shingles and hail
damage to the metal vent caps on all eight buildings.
Id.; Docket No. 35 at 3, ¶ 6. The report
further noted that the roofs had prior shingle repairs that
did not match the original shingles. Docket No. 35 at 3,
¶ 6. Plaintiff's representative, Bryan Gramke of
Heritage Roofing, was present and agreed with Altitude's
assessment. Docket No. 35 at 4, ¶ 7.
September 5, 2014, defendant sent plaintiff a letter with its
estimate, which did not include a full replacement of the
roofs and was below plaintiff's deductible. Docket No. 31
at 3, ¶ 4. Plaintiff's board knew of the denial of
the full roof replacement that fall. Docket No. 35 at 5,
¶ 12. On January 23, 2015, Heritage informed defendant
that the original shingles were unavailable to replace the
damaged shingles. Docket No. 35 at 5, ¶ 14. Defendant
responded that it would not pay for a full removal and
replacement of the property's roofs, and that the
shingles could be replaced using a similar shingle.
Id. at 5-6, ¶ 15. Heritage subsequently
informed plaintiff of defendant's coverage decision.
Id. at 6, ¶ 16. After Heritage repaired the
roofs in March 2015, defendant issued payment to plaintiff in
August 2015 for the recoverable depreciation. Id.,
September 26, 2016, plaintiff hired a public adjuster, Scott
Benglen. Docket No. 31 at 3, ¶ 7. Mr. Benglen sent a
letter to defendant on November 15, 2016 stating that he had
been retained by plaintiff to adjust the claim. Docket No. 35
at 6-7, ¶ 19. Mr. Benglen argued that, because a
suitable match for the shingles did not exist, defendant
should pay for a full roof replacement. Id.
Defendant agreed to re-inspect the property, but limited the
re-inspection to damages documented in the initial estimate.
Id. at 7, ¶ 20. After re-inspection, defendant
sent a letter to Mr. Benglen indicating that it would not pay
to replace the property's roofs because the roof had been
repaired with non-matching shingles prior to the loss.
Id., ¶ 21.
filed this action on May 25, 2017, alleging claims for breach
of contract and statutory bad faith under Colo. Rev. Stat.
§ 10-3-1115 as a result of defendant's denial of
coverage. Docket No. 1.
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).
“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.” Bausman v. Interstate Brands Corp.,
252 F.3d 1111, 1115 (10th Cir. 2001) (internal quotation
marks omitted) (quoting Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 671 (10th Cir. 1998)). “Once
the moving party meets this burden, the burden shifts to the
nonmoving party to demonstrate a genuine issue for trial on a
material matter.” Concrete Works of Colo., Inc. v.
City & Cty. of Denver, 36 F.3d 1513, 1518 (10th Cir.
1994). The 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 Corp. v. Catrett, 477 U.S.
317, 324 (1986) (internal quotation marks omitted). “To
avoid summary judgment, the nonmovant must establish, at a
minimum, an inference of the presence of each element
essential to the case.” Bausman, 252 F.3d at
1115. When reviewing a motion for summary judgment, a court
must view the evidence in the light most favorable to the
non-moving party. Id.
moves for summary judgment on plaintiff's claims for
breach of contract and insurance bad faith under Colo. Rev.
Stat. § 10-3-1115. Docket No. 35. Plaintiff filed a
cross motion for summary judgment on defendant's
affirmative defense that plaintiff's breach of contract
claim is time-barred. Docket No. 31.