United States District Court, D. Colorado
JOHN NESAVICH d/b/a Nesavich Properties LLC, JUDY NESAVICH d/b/a Nesavich Properties LLC, and NESAVICH PROPERTIES, LLC, Plaintiffs,
AUTO-OWNERS INSURANCE COMPANY, a Michigan Insurance Company, Defendant.
A. BRIMMER UNITED STATES DISTRICT JUDGE.
matter is before the Court on Auto-Owners' Motion for
Summary Judgment [Docket No. 36] filed by defendant
Auto-Owners Insurance Company, Plaintiff's [sic] Motion
for Leave of Court to File a Surreply in Response to
Defendant's Motion for Summary Judgment [Docket No. 65],
Plaintiff's [sic] Motion for Reconsideration of Order Re:
Plaintiff's [sic] Motion for Defendant to Submit to the
Appraisal Provision Pursuant to the Terms of its Policy and
Motion to Stay Proceedings Pending Completion of Appraisal
[Docket No. 93], and plaintiffs' F.R.C.P. 72(a) Objection
to Magistrate's Order (Docket No. 91) [Docket No. 94].
case involves an insurance dispute. Defendant issued a
commercial property insurance policy to plaintiffs for a
building located in Colorado Springs, Colorado.
Defendant's Statement of Undisputed Material Facts
(“DSUMF”) 1-2; Docket No. 36 at 2-3, ¶¶
1-2. Plaintiffs claim that their property was damaged by a
hail storm on May 21, 2014. Docket No. 2 at 2, ¶ 7.
Approximately fifteen months after the storm, on August 21,
2015, plaintiffs notified defendant about hail damage from
the storm. DSUMF 6.
September 3, 2015, Steven Boyd, Jr., a professional engineer
who has since been retained by defendant to testify as an
expert, inspected the roof and windows of plaintiffs'
property. DSUMF 15. Mr. Boyd prepared a report dated
September 28, 2015, which noted that meteorological data
showed a hailstorm occurred in the area of the property on
May 21, 2014. Docket No. 36-7 at 13-14. He stated that
“[s]patter marks generally remain visible for a time
period as long as 6 to 9 months after the causal event, and
provide the best evidence of the size of the hailstones that
impacted the Property as well as the direction from which
they fell.” Id. at 14. Mr. Boyd observed
spatter marks during his inspection, but he concluded that
“these spatter marks would not be an indicator of the
size or direction of the hailstones that fell during the [May
21, 2014 hailstorm] due to the time” that had passed
before his inspection. Id. at 14-15. Mr. Boyd also
noted various instances of indentations, granular loss, and
“alligator” cracking on portions of the buildings
roof. Id. at 3-9; Plaintiffs' State of
Additional Disputed Facts (“PSADF”) 1-2; Docket
No. 79 at 4, ¶¶ 1-2. He concluded, however, that
the “roof coverings were not damaged by hailstone
impacts attributable” to the May 21, 2014 hailstorm.
Docket No. 36-7 at 9. Mr. Boyd did conclude that
“west-facing mill finished window sills and mullions
were damaged by hailstones impacts attributable” to the
May 21, 2014 hailstorm. Id. He recommended
replacement of the “aluminum snap-in glazing beads for
the window sills and mullions” that could be
“obtained from a local metal fabrication shop and
installed on the existing windows.” Docket No. 36-8 at
14, ¶ 3. With respect to the east-facing windows, by
contrast, Mr. Boyd stated that they “may have been
impacted by hailstones during another hailstorm event that
occurred prior or after” the May 21, 2014 hailstorm.
Docket No. 36-7 at 15. Defendant also received a report from
Brian N. Strandjord, who “inspected all ten of the
rooftop HVAC units and concluded . . . six units did not
display any damage that was consistent with natural
hail.” Docket No. 36-10 at 2, ¶ 5; DSUMF
He opined that, “while fins cannot typically be
restored to complete original appearance, straightening can
restore air flow, performance, and efficiency if done
correctly by qualified technicians.” Id.,
¶ 8; DSUMF 28-30. Based on Mr. Boyd's and Mr.
Strandjord's findings, Travis Epley of Catastrophe
Specialist, a claims adjuster, prepared an estimate of the
hail damage to plaintiffs' building. Docket No. 2 at 3,
¶ 14. On October 7, 2015, defendant paid plaintiffs $6,
032.49 based on Mr. Epley's estimate of the damage. DSUMF
7; see also Docket No. 79-7 at 1 (“Once we
completed our assessment of the damages, an estimate was
provided to you that included all appropriate repairs and
also included an Actual Cash Value payment in the amount of
$6, 032.49.”); Docket No. 89 at 5. This payment
included the estimated cost of repairs to the sills and
mullions of the windows on only the west-facing side of the
building and straightening the condenser fins for the
building's roof-top HVAC units. DSUMF 8-9.
response to defendant's damage estimate, plaintiffs
commissioned David G. Draper and Steven Thomas to perform a
mechanical evaluation and desaturation testing on the
building's roof. Docket No. 2 at 3, ¶ 16. Mr. Draper
concluded that extensive repairs to the building's HVAC
system were necessary, including replacement of several large
components. Docket No. 79-4 at 16. Mr. Thomas concluded that
one of the four samples taken from the roof showed
“hail strike related damage” to the
“internal reinforcement layer, ” but the other
three samples were inconclusive. Docket No. 79-15 at 9.
Plaintiffs disclosed these reports to defendant before filing
suit. Docket No. 91 at 6.
17, 2016, plaintiffs filed their complaint, alleging that
defendant breached its insurance contract by failing to fully
cover the hail damage and that defendant did so in bad faith.
Docket No. 2 at 1, 4-7. Plaintiffs claim that they are
entitled to a full roof replacement, replacement of the HVAC
units (not just straightening of the condenser fins), and
full replacement of the building's windows (not just the
frame repair). Docket No. 36-5 at 12.
April 10, 2017, plaintiffs filed a motion to compel an
appraisal of the hail damage and stay the case pending
completion of the appraisal. Docket No. 26. On October 2,
2017, defendant filed its motion for summary judgment. Docket
No. 36. On December 28, 2017, plaintiffs filed their motion
seeking to disclose additional expert witnesses. Docket No.
January and February 2018, plaintiffs requested leave to file
supplemental briefing related to the motion for summary
judgment to include evidence obtained during discovery.
Docket Nos. 72, 76. The Court granted the parties leave to
file substitute response and reply briefs related to the
motion for summary judgment addressing the additional
evidence plaintiffs sought to address. Docket No. 74,
78;see also Docket No. 79, 80.
March 29, 2018, the Court denied plaintiffs' motion to
compel an appraisal as untimely. Docket No. 90 at 3. On April
3, 2018, Magistrate Judge Scott T. Varholak denied
plaintiffs' motion to disclose additional expert
witnesses, finding that such untimely disclosure would
prejudice defendant and interfere with the upcoming trial.
Docket No. 91 at 7-8. On April 6, 2018, plaintiffs moved for
reconsideration of the Court's March 29 order denying an
appraisal. Docket No. 93. On April 10, 2018, plaintiffs filed
an objection to the magistrate judge's order. Docket No.
Motion for Reconsideration
Court addresses plaintiffs' motion for reconsideration
first because plaintiffs' summary judgment arguments
refer to their request for an appraisal. See Docket
No. 79 at 6-10. The Federal Rules of Civil Procedure do not
expressly provide for motions for reconsideration. See
Hatfield v. Bd. of Cty. Comm'rs for Converse Cty.,
52 F.3d 858, 861 (10th Cir. 1995). It is, however, within the
Court's discretion to reconsider its rulings. See Fye
v. Okla. Corp. Comm'n, 516 F.3d 1217, 1223 n.2 (10th
Cir. 2008) (“The District Court's partial summary
judgment ruling was not a final judgment. Thus,
[plaintiff's] motion for reconsideration is considered an
interlocutory motion invoking the district court's
general discretionary authority to review and revise
interlocutory rulings prior to entry of final
judgment.”). When doing so, the Court considers whether
new evidence or legal authority has emerged or whether the
prior ruling was clearly in error. See Vigil v. Colorado
Dep't. of Corrections, No. 09-cv-01676-PAB-KLM, 2011
WL 1518660, at *1 (D. Colo. Apr. 20, 2011); cf. Servants
of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.
2000) (“[A] motion for reconsideration is appropriate
where the court has misapprehended the facts, a party's
position, or the controlling law. It is not appropriate to
revisit issues already addressed or advance arguments that
could have been raised in prior briefing.”) (citations
Court denied plaintiffs' motion to compel an appraisal as
untimely, applying the factors for determining whether an
request for alternative dispute resolution
(“ADR”) is timely from City & Cty. of
Denver v. Dist. Court, 939 P.2d 1353, 1369 (Colo. 1997)
(“Dist. Court”). Docket No. 90 at 3.
Plaintiffs' motion for reconsideration simply rehashes
arguments that plaintiffs raised or could have raised in
their briefing. First, plaintiffs argue that their request
was timely because the policy lacks a time limit for
requesting an appraisal. Docket No. 93 at 3. Second,
plaintiffs argue that an appraisal is not a form of ADR and,
therefore, Dist. Court does not apply. Id.
at 5. These arguments are not well taken. Plaintiffs do not
address the decision cited by the Court for the proposition
that Dist. Court applies to determine whether a
request for an appraisal is timely, namely, Laredo
Landing Owners Ass'n, Inc. v. Sequoia Ins. Co., No.
14-cv-01454-RM-KMT, 2015 WL 3619205, at *1 (D. Colo. June 10,
2015); see also Lim v. Am. Economy Ins. Co., No.
13-cv-02063-CMA-KLM, 2014 WL 1464400, at *4 (D. Colo. Apr.
14, 2014). Although plaintiffs note two Colorado trial court
decisions finding that requests for arbitration were timely
even after litigation was initiated, neither of those cases
indicates that the insurers raised the issue of timeliness or
discusses the applicability of Dist. Court to
appraisals. See Topaz II at the Mall Condominium
Association v. American Family Mutual Insurance Co., No.
16CV33561 (Denver Dist. Ct., Order filed March 9, 2017),
Docket No. 26-2; Bowles Place LLC v. State Farm Fire and
Casualty Co, No. 16CV31857 (Denver Dist. Ct., Order
filed March 30, 2017), Docket No. 26-3. Because
plaintiffs have not shown that the Court's prior ruling
was clearly in error, the Court will deny plaintiffs'
motion for reconsideration.
Motion for ...