10th Circuit Court of Appeals

In 199 East Pearl Condominium Owners Association v. Acuity Insurance Company, we prevailed on all four alleged claims as the 10^th Circuit Court of Appeals affirmed the District Court’s grant of summary judgment. We successfully argued that subsequent discovery of latent water damage related back to the initial discovery of damage such that the contractual limitations period barred the plaintiffs’ declaratory judgment and breach of contract claims, as well as establishing a complete lack of evidence supporting the plaintiffs’ substantive and procedural bad faith claims.

Successful defense of insurer in pre-trial motion for partial summary judgment and at trial of property damage claim for wind damage to commercial property

This lawsuit arose from a claim to American Family for wind damage to roofing that allegedly occurred at six apartment buildings owned by Plaintiff.  American Family’s adjuster promptly inspected the roofs at the complex and found that the amount of wind damage to the roof fell below Plaintiff’s deductible.  Subsequently, Plaintiff retained a public adjuster who demanded that American Family re-inspect the property as he believed that all 6 roofs needed to be replaced. When the insured and American Family could not reach an agreement regarding the appraisal for the roofs, Plaintiff sued for breach of contract, common law bad faith and statutory breach of contract.

The roofing expert retained during litigation by American Family determined that there was minimal damage to the subject roof. Plaintiff’s roofing expert inspected the property and alleged that all 6 of the roofs needed to be replaced due to unsealed shingles. In addition, Plaintiff’s expert claimed that the stucco on the exterior wall cladding and windows of the apartment building were damaged and needed to be replaced resulting in over three million in damages.

Lambdin & Chaney successfully argued that American Family’s conduct was reasonable and the U.S. District Court Judge Christine Arguello granted American Family’s Motion for Partial Summary Judgment dismissing Plaintiff’s extra-contractual claims.

At trial, Plaintiff’s witnesses admitted that the roofs had been inspected prior to the alleged storm, and the prior estimates stated that the roofs required maintenance and replacement. Plaintiff’s expert testified and opined that all 6 roofs needed to be replaced because the seal tabs became unsealed due to wind damage. Upon cross-examination of the Plaintiff’s expert regarding his “unsealed tab” theory, an email from the expert to the public adjuster was introduced which stated that the public adjuster’s report was “wholly inadequate.”  The expert was also discredited with prior lawsuits and bankruptcies involving the expert, as well as cross-examination regarding the information relied upon in his report.

The Court held a 702 hearing and ultimately held that Plaintiffs could not testify to any non-roof related damage.  American Family then presented the testimony of its adjuster and its roofing expert.  Both testified that unsealed shingles could be re-sealed, and the repair estimate in this case fell below Plaintiff’s deductible.

The jury found that there was a storm event, there was damage to Plaintiff’s roofs, but the damage fell within the wear and tear, improper maintenance, or negligence exclusions under Plaintiff’s insurance policy.

Motion for Summary Judgment entered regarding time-barred claims

In Lucero v. Griego, pending in Adams County District Court, Judge Edward Moss found that the relation back doctrine was inapplicable and that the Plaintiff’s claims against our client and co-owner of a vehicle involved in an accident were time-barred.

Sweigart v. Farmers Insurance Exchange, District Court for Larimer County, 09CV1228 (06/29/2010).

Attorneys Suzanne Lambdin and Stephanie Montague obtained summary  judgment in favor of Fire Insurance Exchange. The court determined as a matter of  law that the damage  caused by a methamphetamine lab was not covered under the  vandalism peril in the insured’s renters policy. Additionally, the court determined that  the Pollution Exclusion in the renters policy precluded coverage for the claimed  damages caused by methamphetamine.