United States District Court, D. Colorado
MARK MOCK, an individual, and SUSAN MOCK, an individual, Plaintiff,
ALLSTATE INSURANCE COMPANY, an Illinois company, Defendant.
KRISTEN L. MIX, UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Defendant's Motion
for Summary Judgment [#39]  (the “Motion”).
Plaintiffs filed a Response [#45] in opposition to the
Motion, and Defendant filed a Reply [#51]. The Court has
reviewed the Motion, the Response, the Reply, the entire
docket, and the applicable law, and is sufficiently advised
in the premises. For the reasons set forth below, the Motion
[#39] is GRANTED.
Factual Background 
purchased homeowners insurance coverage from Defendant for
their home in Greenwood Village, Colorado. The applicable
insurance policy covers “sudden and accidental direct
physical loss to [the] property.” Ex. A
[#39-1] at 24. It does not cover loss to the property caused
by “design, ” “workmanship, ” or
“construction.” Id. at 26. It also does
not cover loss “when there are two or more causes of
loss to the covered property, and the predominant cause of
loss is excluded” by other provisions of the policy.
Id. at 27.
storm hit the property in May of 2015. Motion [#39]
at 4; Response [#45] at 3. Plaintiffs initially made
a claim under their insurance policy for damage to the roof,
then subsequently added a claim for damage to their EIFS
stucco system. Ex. B [#39-2] at 1-2 ¶¶
5, 8. Before filing suit, Plaintiffs hired an engineering
firm, SBSA, to inspect their EIFS stucco system. Ex.
E [#39-5] at 39-40, 94. The parties agree that the EIFS
stucco system was installed when the house was originally
built in 1994. Ex. B-18 [#39-2] at 83; Exh.
B-9 [#39-2] at 42. SBSA concluded that water intrusion
and damage was the result of an inherent flaw in the EIFS
stucco system when it was installed in the Plaintiffs'
residence. Ex. B-18 [#39-2] at 83. Defendant also
hired an engineering firm, Rimkus Consulting, to inspect the
property. Ex. B [#39-2] at 4 ¶ 18. Rimkus
Consulting determined that the damage to the EIFS system and
stucco in Plaintiffs' home had occurred over the years
and that the cause of that damage was due to the defective
nature of the EIFS system. Ex. B-9 [#39-2] at 43-45.
Based on this conclusion, Defendant denied Plaintiffs'
claim for damages to their EIFS system and stucco because the
loss was not sudden and accidental and was the result of
improper design and/or construction. Ex. B [#29-2]
at 5 ¶¶ 21-22.
filed this lawsuit on December 16, 2016. See Compl.
[#6] at 1. They have asserted four claims: (1) entry of a
declaratory judgment “fixing and determining the rights
and obligations of the Parties under the policy and
interpreting and resolving the issues under the
policy;” (2) breach of contract; (3) common law
insurance bad faith; and (4) violation of Colo. Rev. Stat.
§§ 10-3-1115 and 1116. Id. ¶¶
14-34. In the present Motion [#39], Defendant asserts that
there is an absence of a genuine issue of material fact and
that it is entitled to judgment as a matter of law on all
Standard of Review
purpose of a motion for summary judgment pursuant to
Fed.R.Civ.P. 56 is to assess whether trial is necessary.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Pursuant to Fed.R.Civ.P. 56(a), summary judgment
should be entered if the pleadings, the discovery, any
affidavits, and disclosures on file show “that there is
no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law.” An issue
is genuine if the evidence is such that a reasonable jury
could resolve the issue in favor of the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A fact is material if it might affect the outcome of
the case under the governing substantive law. Id.
burden is on the movant to show the absence of a genuine
issue of material fact. Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (citing
Celotex, 477 U.S. at 323). When the movant does not
bear the ultimate burden of persuasion at trial, the
“movant may make its prima facie demonstration [of the
absence of a genuine issue of material fact] simply by
pointing out to the [C]ourt a lack of evidence for the
nonmovant on an essential element of the nonmovant's
claim.” Id. at 671. If the movant carries the
initial burden of making a prima facie showing of a lack of
evidence, the burden shifts to the nonmovant to put forth
sufficient evidence for each essential element of his claim
such that a reasonable jury could find in his favor. See
Anderson, 477 U.S. at 248. The nonmovant must go beyond
the allegations and denials of his pleadings and provide
admissible evidence, which the Court views in the light most
favorable to him. Adickes v. S.H. Kress & Co.,
398 U.S. 144, 157 (1970); Panis v. Mission Hills Bank,
N.A., 60 F.3d 1486, 1490 (10th Cir. 1995) (citing
Celotex, 477 U.S. at 324). Conclusory statements
based merely on conjecture, speculation, or subjective belief
are not competent summary judgment evidence. Bones v.
Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir.
2004). 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.
See 10B Charles Alan Wright et al., Federal
Practice and Procedure § 2738 (4th ed. 2017).
documents that meet the evidentiary requirements of
Fed.R.Civ.P. 56 may be considered for purposes of summary
judgment. Rule 56(c) provides that:
party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials[.] . .
Materials Not Cited. The court need consider only the cited
materials, but it may consider other materials in the record.
Affidavits or Declarations. An affidavit or declaration used
to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in
evidence, and show that the ...