United States District Court, D. Colorado
PINON SUN CONDOMINIUM ASSOCIATION, INC., a Colorado non-profit corporation, Plaintiff and Counter Defendant,
v.
ATAIN SPECIALTY INSURANCE COMPANY, a foreign corporation, INDIAN HARBOR INSURANCE COMPANY, a foreign corporation, and GREAT LAKES INSURANCE, SE, f/k/a Great Lakes Reinsurance UK, Plc, a foreign corporation, Defendants. GREAT LAKES INSURANCE, SE, f/k/a Great Lakes Reinsurance UK, Plc, a foreign corporation, Defendant and Third-Party Plaintiff,
v.
PINON SUN CONDOMINIUM ASSOCIATION, INC., a Colorado non-profit corporation. CLAIM SOLUTIONS LLC, a Colorado limited liability company, SCOTT BENGLEN, SHALZ CONSTRUCTION LLC, a Colorado limited liability company, and BRADLEY SHALZ, Third Party Defendants.
ORDER AFFIRMING AND ADOPTING THE JANUARY 9, 2019
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING
JOINT MOTION TO AMEND ANSWER TO ADD COUNTERCLAIMS AGAINST
DEFENDANTS
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.
This
matter is before the Court upon the January 9, 2019
Recommendation by United States Magistrate Judge N. Reid
Neureiter that the Court deny Plaintiff Pinon Sun Condominium
Association, Inc. (“Plaintiff Pinon Sun”) and
Third-Party Defendants Claim Solutions LLC and Scott
Benglen’s (together, “Third Party Defendant Claim
Solutions”) Joint Motion to Amend their Answer to Add
Counterclaims Against Defendants (Doc. # 190). (Doc. # 237.)
Plaintiff Pinon Sun and Third-Party Defendant Claim Solutions
(for purposes of this Order, “Movants”) filed a
joint Objection to the Recommendation (Doc. # 238), which,
for the reasons described herein, the Court overrules. The
Court affirms and adopts Magistrate Judge Neureiter’s
Recommendation and denies Movants’ Joint Motion to
Amend Answer to Add Counterclaims Against Defendants.
I.
BACKGROUND
Magistrate
Judge Neureiter’s Recommendation (Doc. # 237) and this
Court’s previous Order Denying Plaintiff’s and
Certain Third-Party Defendants’ Motion for Bifurcation
and Stay (Doc. # 189) thoroughly recite the factual and
procedural background of this convoluted dispute and are
incorporated herein by reference. See 28 U.S.C.
§ 636(b)(1)(B); Fed.R.Civ.P. 72(b). Accordingly, this
Order will reiterate only what is necessary to address
Movants’ Objection.
Plaintiff
Pinon Sun is the homeowners’ association for a
multi-family condominium property in Colorado Springs,
Colorado, and is organized as a non-profit Colorado
corporation. (Doc. # 43 at 2–3.) It sought and obtained
an insurance policy (the “Policy”) from Defendant
Great Lakes Insurance, SE (“Defendant Great
Lakes”) on its property for the period of August 15,
2015, to August 15, 2016. See (Doc. # 71-3).
Defendant Great Lakes was the primary insurer of the Policy,
covering up to $10, 000, 000.00 for any given incident. (Doc.
# 43 at 25.) Defendant Atain Specialty Insurance Company
(“Defendant Atain”) and Defendant Indian Harbor
Insurance Company (“Defendant Indian Harbor”)
were the excess carriers under the Policy. (Id.);
see also (Doc. # 49 at 2.)
Plaintiff
Pinon Sun filed a claim under the Policy after its properties
allegedly sustained hail and wind damage on July 28, 2016.
(Doc. # 43 at 4.) Plaintiff Pinon Sun retained Third-Party
Defendant Claim Solutions LLC as its public adjuster during
the claims process (Doc. # 49 at 8); Third Party Defendant
Scott Benglen is the managing partner of Claim Solutions LLC
(Doc. # 43 at 2). Plaintiff Pinon Sun and Third-Party
Defendant Claim Solutions engaged in a year-long dispute with
Defendant Great Lakes over the value of Plaintiff Pinon
Sun’s alleged damage and the cost of allegedly
necessary repairs. See, e.g., (id. at
4–25.) At some point over the course of that year,
Plaintiff Pinon Sun and Third-Party Defendant Claim Solutions
hired Third-Party Defendant Shalz Construction LLC, managed
by Third-Party Defendant Bradley Shalz (together,
“Third-Party Defendant Shalz”), to repair the
roofs of Plaintiff Pinon Sun’s properties. See
(id. at 15; Doc. # 49 at 15.) The estimates for and
invoices from Third-Party Defendant Shalz’s work were
central to Defendant Great Lake’s claim investigation
and dispute with Plaintiff Pinon Sun and Third-Party
Defendant Claim Solutions. See (Doc. # 43 at
4–25.)
Plaintiff
Pinon Sun initiated this action on June 30, 2017 (Doc. # 1),
and filed the operative Complaint against Defendant Great
Lakes, Defendant Atain, and Defendant Indian Harbor on
September 25, 2017 (Doc. # 43). Plaintiff Pinon Sun asserts
the following claims:
1. Breach of contract, against Defendant Great Lakes;
2. Breach of contract, against Defendant Atain;
3. Breach of contract, against Defendant Indian Harbor;
4. Violation of Colo. Rev. Stat. §§ 10-3-1115,
-1116, for unreasonable delay or denial of payment of a claim
for benefits, against Defendant Great Lakes;
5. Breach of the covenant of good faith and fair dealing,
against Defendant Great Lakes; and
6. Violation of the Colorado Consumer Protection Act, Colo.
Rev. Stat. § 6-1-101, et seq., against Defendant Great
Lakes;
(Id. at 25–34; Doc. # 234 at 2.)
Defendant
Great Lakes answered the Complaint on October 17, 2017, and
therein asserted counterclaims and third-party claims against
Plaintiff Pinon Sun, Third-Party Defendant Claim Solutions,
and Third-Party Defendant Shalz:
1. Breach of contract, against Plaintiff Pinon Sun;
2. Fraud and misrepresentation; against Plaintiff Pinon Sun,
Third-Party Defendant Claim Solutions, and Third-Party
Defendant Shalz;
3. Insurance fraud, against Plaintiff Pinon Sun, Third-Party
Defendant Claim Solutions, and Third-Party Defendant Shalz;
4. Civil conspiracy, against Plaintiff Pinon Sun, Third-Party
Defendant Claim Solutions, and Third-Party Defendant Shalz;
5. Civil theft, against Plaintiff Pinon Sun, Third-Party
Defendant Claim Solutions, and Third-Party Defendant Shalz;
6. Violation of the Colorado Organized Crime Control Act
(“COCCA”), Colo. Rev. Stat. § 18-17-104, et
seq., against Plaintiff Pinon Sun, Third-Party Defendant
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