Hous. Cas. Co. v. Swinerton Builders

1

HOUSTON CASUALTY COMPANY, Plaintiff, v. SWINERTON BUILDERS, Defendant.

Civil Action No. 20-cv-03558-NYW

United States District Court, D. Colorado

February 22, 2022

AMENDED^[*] MEMORANDUM OPINION AND ORDER

Nina Y. Wang United States Magistrate Judge

This matter comes before the court on the Motion for Summary Judgment on Dispositive Legal Issues (the “Motion for Summary Judgment” or “Motion”) filed by Plaintiff Houston Casualty Company (“Plaintiff” or “HCC”). [Doc. 20, filed March 18, 2021]. The undersigned considers the Motion pursuant to 28 U.S.C. § 636(c) and the Order of Reference for all purposes dated February 19, 2021, see [Doc. 14], and concludes that oral argument will not materially assist in the resolution of this matter. Upon review of the Motion and associated briefing, the applicable case law, and the record before the court, I respectfully GRANT the Motion for Summary Judgment.

PROCEDURAL HISTORY

HCC initiated this action against Defendant Swinerton Builders LLC (“Defendant” or “Swinerton”) on December 2, 2020, arising from an insurance coverage dispute between the Parties. [Doc. 1]. Swinerton, a general contractor sought-and HCC denied-coverage for damaged roofs associated with ground-up construction of two 32-story concrete and steel high-rise apartment buildings located at 1101 E. Bayaud Avenue and 1091 E. Bayaud Avenue, Denver, Colorado (the “Project”) under a Commercial General Liability (“CGL”) insurance policy issued by HCC to Swinerton. See generally [id.]. HCC asserts four declaratory judgment claims against Swinerton, seeking declarations that: (1) Swinerton's claim does not fall within the Insuring Agreement of the Policy; (2) the Policy exclusions preclude insurance coverage here; (3) if coverage is not excluded, Swinerton forfeited coverage by failing to cooperate in the investigation of its claim; and (4) the Policy is excess to Swinerton's Builders' Risk Policy. See [id]. Defendant answered the Complaint on January 4, 2021, asserting defenses but no counterclaims. [Doc. 10]. Plaintiff filed its Motion for Summary Judgment on March 18, 2021, seeking summary judgment on “dispositive legal issues.” [Doc. 20 at 1]. Specifically, Plaintiff seeks summary judgment that (1) HCC has no duty to defend Swinerton with respect to the insurance claim, [id. at 13]; and (2) HCC has no duty to indemnify Swinerton with respect to the insurance claim. [Id. at 15]. Swinerton responded [Doc. 22] ^[1] and Houston replied [Doc. 23].

LEGAL STANDARD

Pursuant to Rule 56, summary judgment is warranted “if 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). “A dispute is genuine if there is sufficient evidence so that a rational trier of fact could resolve the issue either way. A fact is material if under the substantive law it is essential to the proper disposition of the claim.” Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011) (internal citations and quotation marks omitted). It is generally the movant's burden to demonstrate that no genuine dispute of material fact exists for trial, whereas the nonmovant must set forth specific facts establishing a genuine issue for trial. See Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010). Where 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.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (citation omitted).

Once the moving party has met this burden, the nonmovant must point to competent summary judgment evidence creating a genuine dispute of material fact; conclusory statements based on speculation, conjecture, or subjective belief are insufficient. See Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004); see also Dodson v. Bd. of Cty. Comm'rs, 878 F.Supp.2d 1227, 1239 (D. Colo. 2012) (“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.”). In considering the evidence, the court cannot and does not weigh the evidence or determine the credibility of witnesses. See Fogarty v. Gallegos, 523 F.3d 1147, 1165 (10th Cir. 2008). Further, the court may consider only admissible evidence, see Gross v. Burggraf Const. Co., 53 F.3d 1531, 1541 (10th Cir. 1995), though the evidence need not be in a form that is admissible at trial; only the substance must be admissible at trial. See Brown v. Perez, 835 F.3d 1223, 1232 (10th Cir. 2016). Indeed, “[t]o determine whether genuine issues of material fact make a jury trial necessary, a court necessarily may consider only the evidence that would be available to the jury.” Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006). At all times, the court will “view the factual record and draw all reasonable inferences therefrom most favorably to the nonmovant.” Zia Shadows, L.L.C. v. City of Las Cruces, 829 F.3d 1232, 1236 (10th Cir. 2016).

ANALYSIS

I. Record Before the Court

Before turning to the substantive arguments presented by the Parties, the court pauses to discuss the record before it. As discussed above, the court may consider only admissible evidence, see Gross 53 F.3d at 1541, though the evidence need not be in a form that is admissible at trial; only the substance must be admissible at trial. Brown, 835 F.3d at 1232.

A. Insurance Policy

Due to unusual circumstances presented in this case, the court first discusses whether it may consider the insurance policy (the “Policy”) submitted by HCC. See [Doc. 20-1]. By way of background, on September 8, 2021, this court issued a Minute Order noting that, in its Motion for Summary Judgment, Plaintiff had failed to comply with this court's Practice Standards by failing to include a Statement of Material Facts with citations to specific evidence in the record. [Doc. 27]. The court ordered Plaintiff to respond to Defendant's Statement of Additional Material Facts in Defendant's Response to the Motion for Summary Judgment, see [Doc. 22], as well as provide its own Statement of Material Facts, on or before September 15, 2021. [Doc. 27]. In addition, the court ordered Swinerton to respond to Plaintiff's anticipated Statement of Material Facts on or before September 22, 2021, or within seven days of Plaintiff's filing, whichever was earlier. [Id.]. Plaintiff filed its Statement of Material Facts and Response to Plaintiff's Additional Statement of Material Facts on September 15, 2021, [Doc. 28], to which Defendant responded on September 22, 2021. [Doc. 29].

In its Response to Plaintiff's Statement of Undisputed Material Facts [Doc. 29], Defendant “[d]en[ied] that the policy attached as Exhibit A to the complaint ([and] attached as Exhibit 1 to [Plaintiff's Motion for Summary Judgment] . . .) is the true and correct copy” of the Policy. [Doc. 29 at ¶ 2]. In support, Swinerton asserts that, in its Initial Disclosures, HCC “provided a [bates-stamped] copy of the policy that contains 7 additional pages than that attached [to] the complaint” and argues that HCC “has not shown personal knowledge that either version is a true and correct version applicable to this suit.” [Doc. 29 at ¶ 2]. In support, Swinerton submits a declaration from its counsel to which counsel has attached a version of the Policy that she asserts Defendant has in its possession [Doc. 22-19] and in which defense counsel asserts that “additional discovery will be needed to evaluate what policy is applicable to the claim brought by the property owner.” See [Doc. 22-1 at ¶¶ 2-3, 8].

On October 4, 2021, this court issued an Order to Show Cause ordering (1) Plaintiff to show cause, on or before October 6, 2021, why, in light of the fact that “Plaintiff has not submitted any document authenticating the policy attached to its . . . Motion for Summary Judgment, ” this court can properly consider the Policy in ruling on the Motion; and (2) Defendant to show cause, on or before October 6, 2021, why the court could not properly consider the Policy, “particularly when it appear[ed] to be identical to the version of the policy submitted by Defendant as Exhibit 47 [Doc. 22-19], or otherwise demonstrate why Plaintiff's Exhibit 1 is not identical to Defendant's Exhibit 47.” [Doc. 30 at 3-4].

Both Parties responded to the Order to Show Cause. [Doc. 31; Doc 32]. In HCC's response, it asserts that the extra seven pages to which Defendant objects can be attributed to the fact that, in its Initial Disclosures, it included a copy of the Policy and “also included copies of two endorsements added to the Policy, ” but that the endorsements were “produced . . . as separate documents.” [Doc. 32 at ¶ 4]. Plaintiff argues that the Motion for Summary Judgment “refers [only] to two pages of the Policy” and that those pages are identical in each version of the Policy. [Id. at ¶¶ 6-7]. HCC argues that “[t]he inclusion or exclusion of endorsements that are not at issue is neither material nor does it create a genuine dispute.” [Id. at ¶ 11]. Meanwhile, Defendant's response asserts that there are “a couple of slight differences” between Plaintiff's version of the Policy and that submitted by Defendant, namely, that “Swinerton's policy has added language in red font on [page four]” and “Swinerton's policy has redacted premiums on [page 16].” [Doc. 31 at 1-2]. In addition, Defendant asserts that HCC “has not verified nor identified any [HCC] employee with personal knowledge to support either of the two policies, ” and thus, “Swinerton objects to the evidence per Fed.R.Civ.P. [] 56...