United States District Court, D. Colorado
OPINION AND ORDER ON MOTION FOR SUMMARY
S. Krieger Senior United States District Judge.
MATTER comes before the Court upon the
Defendant's Motion for Summary Judgment (#
35), the Plaintiff's Response (#
44), and the Defendant's Reply (#
50). For the reasons that follow, the motion is
granted in part.
Court exercises jurisdiction under 28 U.S.C. § 1332.
a case in which the Plaintiff, Hampden Auto Body Co
(Hampden)., seeks to recover insurance benefits for property
damage and loss of business income. Hampden owns a business
in Denver, Colorado, that was insured under an insurance
policy (Policy) issued by Defendant Auto-Owners Insurance Co.
(Owners) In May 2014, Hampden's paint drying system was
damaged in a by a lightning strike. Hampden submitted a claim
to Owners, but various communications over the course of the
next year were ignored. Eventually, Owners inspected the
paint-drying system in June 2015 and paid for its repair.
With regard to Hampden's business-income claim, Owners
determined a loss of $221, 193.
brought this suit in May 2017, asserting the following causes
of action: (1) breach of contract, (2) breach of the implied
covenant of good faith and fair dealing, and (3) a violation
of C.R.S. §§ 10-3-1115, 1116 based on unreasonable
delay of the claim. Owners now moves for summary judgment on
all claims (# 35).
of the Federal Rules of Civil Procedure facilitates the entry
of a judgment only if no trial is necessary. See White v.
York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995).
Summary adjudication is authorized when there is no genuine
dispute as to any material fact and a party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). Substantive
law governs what facts are material and what issues must be
determined. It also specifies the elements that must be
proved for a given claim or defense, sets the standard of
proof, and identifies the party with the burden of proof.
See Anderson v. Liberty Lobby Inc., 477 U.S. 242,
248 (1986); Kaiser-Francis OilCo.v.Producer=sGasCo.,
870 F.2d 563, 565 (10th Cir. 1989). A factual dispute is
“genuine” and summary judgment is precluded if
the evidence presented in support of and opposition to the
motion is so contradictory that, if presented at trial, a
judgment could enter for either party. See Anderson,
477 U.S. at 248. When considering a summary judgment motion,
a court views all evidence in the light most favorable to the
non-moving party, thereby favoring the right to a trial.
See Garrett v. Hewlett Packard Co., 305 F.3d 1210,
1213 (10th Cir. 2002).
movant has the burden of proof on a claim or defense, the
movant must establish every element of its claim or defense
by sufficient, competent evidence. See Fed. R. Civ.
P. 56(c)(1)(A). Once the moving party has met its burden, to
avoid summary judgment the responding party must present
sufficient, competent, contradictory evidence to establish a
genuine factual dispute. See Bacchus Indus. Inc. v. Arvin
Indus. Inc., 939 F.2d 887, 891 (10th Cir. 1991);
Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir.
1999). If there is a genuine dispute as to a material fact, a
trial is required. If there is no genuine dispute as to any
material fact, no trial is required. The court then applies
the law to the undisputed facts and enters judgment.
moving party does not have the burden of proof at trial, it
must point to an absence of sufficient evidence to establish
the claim or defense that the non-movant is obligated to
prove. If the respondent comes forward with sufficient
competent evidence to establish a prima facie claim
or defense, a trial is required. If the respondent fails to
produce sufficient competent evidence to establish its claim
or defense, then the movant is entitled to judgment as a
matter of law. See Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986).
moves for summary judgment on all claims. In viewing the
parties' arguments, it is helpful to keep in mind two
provisions of the Policy. First, as to the loss payment:
In the event of loss or damage covered by this Coverage Form,
at our option, we will either:
(1) Pay the value of the loss or damaged property;
(2) Pay the cost of repairing or replacing the lost or