Berwick et al v. Hartford Fire Insurance Company, The

Filing 137

ORDER denying 97 Plaintiffs' Motion for Partial Summary Judgment Re: Business Income for Period from 1/24/2009 to 4/23/2009, and denying 100 Defendant's Motion for Partial Summary Judgment and Brief in Support of the Motion (Oral Argument Requested), by Magistrate Judge Michael E. Hegarty on 9/4/2012. (mehcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-01384-MEH-KMT
JAMES E. BERWICK,
AFFILIATES IN ORAL AND MAXILLOFACIAL SURGERY, P.C.,
Plaintiffs,
v.
HARTFORD FIRE INSURANCE COMPANY, INC.,
Defendant.

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

Michael E. Hegarty, United States Magistrate Judge.
The parties in this lawsuit have filed opposing motions for partial summary judgment. See
Plaintiffs’ Motion for Partial Summary Judgment Re: Business Income for Period from 1/24/2009
to 4/23/2009 [filed July 6, 2012; docket #97]; Defendant’s Motion for Partial Summary Judgment
and Brief in Support of the Motion (Oral Argument Requested) [filed July 6, 2012; docket #100].
The motions are fully briefed, and I have determined that, given the extensive time that I have spent
with the parties in open court resolving various motions, oral argument will not materially assist.
For the reasons that follow, I deny the motions.
I. BACKGROUND
Plaintiffs James E. Berwick (“Berwick”) and Affiliates in Oral and Maxillofacial Surgery,
P.C. (“Affiliates”) took out an insurance policy with Defendant The Hartford Fire Insurance
Company (“Hartford”), Policy No. 65 SBA PT3146 DX (“the “Policy”). On or about May 8, 2008,
Plaintiffs’ business suffered a fire at 3100 North Academy Boulevard, Colorado Springs, Colorado
80917 (the “Premises”). As a result of the fire, the Premises was rendered uninhabitable; however,

after clean up and repair, Berwick and Affiliates were able to reoccupy the Premises on or about
January 23, 2009.
The Policy, inter alia, includes coverage for loss of business income and extra expense. The
limits of insurance for the business income and extra expense coverage is described as “12 months
actual loss sustained.” On June 30, 2010, Berwick and Affiliates filed a sworn proof of loss with
the Defendant which included a loss of income in the amount of $461,912.00; this proof of loss was
based on an analysis performed by Certified Public Accountant Roberta Jackson. Plaintiffs allege
that Defendant The Hartford has failed to pay the Plaintiffs’ claim for loss of business income and,
in so doing, the Defendant has breached its insurance contract. Plaintiffs also allege Defendant
violated the Unfair Claims Settlement Practices subdivision of the Unfair Methods of Competition
and Unfair Deceptive Acts or Practices section of the Colorado Insurance Code, C.R.S. § 10-3-1104.
Finally, Plaintiffs contend the Defendant acted unreasonably in failing to pay Plaintiffs’ claim for
loss of business income. Defendant denies Plaintiffs’ allegations and contends it has paid over
$70,000.00 in business income benefits to Plaintiffs. Defendant disputes the accounting or other
methodologies on which Plaintiffs claim to have relied in asserting a claim for over $400,000.00 in
benefits allegedly traceable to the subject fire loss.
II. DISCUSSION
A.

Legal Standards for Summary Judgment
Summary judgment serves the purpose of testing whether a trial is required. Heideman v.

South Salt Lake City, 348 F.3d 1182, 1185 (10th Cir. 2003). The Court shall grant summary
judgment if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show
there is no genuine issue of material fact and the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(c). A fact is material if it might affect the outcome of the suit under the
2

governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving
party bears the initial responsibility of providing to the Court the factual basis for its motion and
identifying the pleadings, depositions, answers to interrogatories, and admissions on file, together
with affidavits, if any, which reveal that there are no genuine issues as to any material facts, and that
the party is entitled to summary judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). However, the non-moving party has the burden of showing that there are issues of
material fact to be determined. Id. at 324.
That is, if the movant properly supports a motion for summary judgment, the opposing party
may not rest on the allegations contained in his complaint, but must respond with specific facts
showing a genuine factual issue for trial. Fed. R. Civ. P. 56(e); Hysten v. Burlington Northern &
Santa Fe Ry., 296 F.3d 1177, 1180 (10th Cir. 2002). These specific facts may be shown “‘by any
of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.’”
Pietrowski v. Town of Dibble, 134 F.3d 1006, 1008 (10th Cir. 1998) (quoting Celotex, 477 U.S. at
324). “[T]he content of summary judgment evidence must be generally admissible and . . . if that
evidence is presented in the form of an affidavit, the Rules of Civil Procedure specifically require
a certain type of admissibility, i.e., the evidence must be based on personal knowledge.” Bryant v.
Farmers Ins. Exch., 432 F.3d 1114, 1122 (10th Cir. 2005). “The court views the record and draws
all inferences in the light most favorable to the non-moving party.” Pepsi-Cola Bottling Co. of
Pittsburg, Inc. v. Pepsico, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005).
B.

Interpretation of Insurance Contracts
This is a diversity case. Therefore, the Court applies Colorado law. Mincin v. Vail Holdings,

Inc., 308 F.3d 1105, 1108-09 (10th Cir. 2002). Insurance policies are subject to principles of
contract interpretation. Bailey v. Lincoln Gen. Ins. Co., 255 P.3d 1039, 1050 (Colo. 2011).
3

Although the ultimate aim is to effectuate the contracting parties’ intentions, id., the Colorado
Supreme Court has declared that insurance policies are not ordinary, bilateral contracts, id. at 1049,
and insurance policies “‘must be given effect according to the plain and ordinary meaning’ of their
terms.” Id. at 1050-51 (citation omitted) (emphasis in original). This is to ensure that the reasonable
expectations of an ordinary person who purchased a policy will be fulfilled. Id. at 1051. “If, based
on how an ordinary, objectively reasonable insured would read the whole policy, the question of
whether certain coverage exists is ‘susceptible to more than one reasonable interpretation,’ Cary v.
United of Omaha Life Ins. Co., 108 P.3d 288, 290 (Colo. 2005), then the coverage provisions are
ambiguous, to be construed against the insurer as the drafter of the policy.” Bailey, 255 P.3d at
1051. However, although Colorado courts subject an insurance contract to scrutiny for provisions
that unduly compromise an insured’s interests and may be, therefore, rendered unenforceable, courts
are not to re-write clear and unambiguous provisions. Allstate Ins. Co. v. Huizar, 52 P.3d 816, 820
(Colo. 2002).
C.

Analysis of the Parties’ Respective Motions
1.

PLAINTIFFS’ BREACH OF CONTRACT CLAIM
CONCERNING EXTENDED BUSINESS LOSS COVERAGE

Both parties move for summary judgment concerning their respective positions on the issue
of Defendant’s alleged breach of insurance contract for failure to pay extended business loss
benefits. Plaintiffs’ motion relies primarily on their interpretation of the Policy as including (1)
extended business income loss benefits, (2) up to 90 days after the Premises were re-occupied
following restoration,1 (3) for decreased operations. In relevant part, the Policy provided for

1

It is undisputed that Plaintiffs purchased a “super stretch” endorsement under which, if
applicable, business income loss benefits could be paid up to 90 days after Plaintiffs re-occupied the
Premises.
4

reimbursement of lost business income during the restoration period (“Business Income coverage”)
and, in certain circumstances, beyond that period (“Extended Income coverage”). The extended
coverage, which is at issue in this case, applied to income lost because of the fire, beginning (1) the
date Business Income coverage ends, and ending on (2) “the earlier of: (I) [t]he date [the Plaintiffs]
could restore [their] ‘operations’ with reasonable speed, to the condition that would have existed if
no direct physical loss or damage occurred; or (ii) 30 consecutive days after the (re-occupancy)
date.”2 The Policy further states:
Loss of Business Income must be caused by direct physical loss or
physical damage at the “scheduled premises” caused by or resulting
from a Covered Cause of Loss.
It is undisputed that Defendant did not reimburse Plaintiffs for alleged business income loss
occurring after the re-occupancy date, January 23, 2009.
Defendant contends that Plaintiffs did not qualify for extended coverage because, as of
January 23, 2009, Plaintiffs’ operations were fully functional, and the same volume and nature of
work could be physically performed on that date as before the fire. Defendants argue that any
reduction in business after the date the office was once again capable of full operation should be
categorized as “market forces” damages arising from the loss, which are not compensable. On the
other hand, Plaintiffs contend that losses extending beyond that date were
the result of the fire directly. Patients and referring dentists did not
know that the Plaintiffs had reopened at their original location for a
period of time. Advertising indicated incorrect information. Patients
again did not know how to find the Plaintiffs’ location for a period of
time. These were all direct consequences of the fire itself, not some
unspecified and esoteric market consequence . . . .
Reply, at 4.
2

The “super stretch” endorsement extended this latter period an additional 60 days, if (ii)

applied.
5

Plaintiffs argue that the extended coverage provision, which appears to presume some
starting point and an ending point, is illusory if given Defendant’s interpretation (i.e., that the
provision is inapplicable if Plaintiffs’ offices were physically capable of full operations on the date
of re-occupancy). Defendant argues Plaintiff Dr. Berwick has admitted that as of January 23, 2009,
the operations at his restored premises were “on a physical basis, [as if] the fire had not occurred.”
Berwick Depo. at 161:4-7. Thus, Defendant contends, the extended coverage provision did not kick
in, since January 23, 2009 was, as a matter of law, the date the Plaintiffs could have restored their
operations with reasonable speed.
The critical consideration in this analysis is the meaning of the term “restore their
operations.” Defendant relies on a pure mechanical definition, that the physical plant was back to
its original pre-fire state. It is undisputed that this occurred on January 23, 2009. Plaintiffs argue
that restoration of operations means much more, including a reasonable time in which to return to
a volume of operation resembling the pre-fire state. From Plaintiffs’ viewpoint, while the doors
were officially re-opened on January 23, 2009, normal business operations did not resume until
sometime later, when referring dentists and potential patients became aware of Plaintiffs’ restored
operations. Until then, according to the Plaintiffs, the business continued to suffer losses caused by
the fire, i.e., but for the fire, the business would have been running at a higher volume and would
have seen more income. Plaintiffs contend that the extended coverage was designed to cover the
reduction in business for a reasonable period after re-occupancy.
Defendant relies primarily on Brand Mgmt., Inc. v. Maryland Cas. Co., No. 05-cv-02293,
2007 WL 1772063 (D. Colo. June 18, 2007) (Blackburn, J.), in which a business that was shut down
for 15 days in order to be sanitized from listeria contamination contended that, during the shutdown,
their major customer stopped buying from them and would not change its mind even after the
6

business was declared clean. I disagree that this decision is helpful. In that case, Judge Blackburn
dealt with insurance coverage that required the alleged business income loss to be causally linked
to both “necessary suspension of operations” and also that it be sustained during the “period of
restoration.” Id. at *2 (“Only when both preconditions are satisfied is coverage provided.”). Such
is not the case here, since the alleged uncompensated business losses occurred neither when there
was a suspension of operations nor during the period of restoration. The insurance coverage at issue
here is post-restoration period. In Brand Mgmt., Judge Blackburn simply determined that if a
business is capable of full operations, it is no longer in a period of restoration nor is it under a
necessary suspension of operations. There was no issue in that opinion concerning post-restoration
benefits. Moreover, Judge Blackburn found that the Plaintiff had submitted insufficient record
evidence of loss of the largest customer during the period of restoration. I do not know what Judge
Blackburn would have decided had the quality of evidence been different.
Moreover, Defendant asserts that Brand Mgmt. stands for the proposition that businessinterruption insurance “does not provide coverage for the subsequent market consequences of the
temporary cessation of business.” Defendant’s Motion for Partial Summary Judgment, at 29-30
(quoting Brand Mgmt., at *3. What Judge Blackburn actually said was as follows: “The phrase
‘necessary suspension of operations,’ although not defined in the policy, is generally understood to
connote a total cessation of business activity. . . . Thus, once the insured is able to resume
operations, the business interruption clause does not provide coverage for the subsequent market
consequences of the temporary cessation of business.” Brand Mgmt., at *3. For purposes of this
motion, the parties in the present case do not dispute the business income coverage aspect of
Plaintiffs’ Policy (other than the calculations of the losses for that period), which equates to the total
cessation of Plaintiffs’ business at the Premises from the date of the fire to January 23, 2009, but
7

rather they dispute the extended coverage provision.
The definition of “operations” in the insurance contract “means your business activities
occurring at the ‘scheduled premises.’” If, on January 23, 2009, Plaintiffs’ business had its office
ready for customers, its employees present, all its necessary equipment in place, and in fact opened
its doors but had no customers (a fact subject to some dispute), had it “restored” its “operations”?
Remember, the Policy provided for benefits during a period of restoration. Necessarily, the period
of restoration ended when Plaintiffs’ business was, once again, fully operational. I am sympathetic
with Plaintiffs’ argument that, therefore, extended business income coverage potentially provides
benefits after the moment the insured’s business becomes fully operational, or else it has no meaning
at all. What I do not have before me is sufficient evidence to determine what happened during the
weeks leading up to January 23, 2009. Were Plaintiffs given sufficient advance notice that this
would be the end of the restoration period such that they, using reasonable speed, could have
restored normal operations on January 23, 2009 by sending out flyers, making phone calls, engaging
in advertising, and otherwise letting the world know that they were back in business in the weeks
or days leading up to the re-opening (italicized terms being those used in the contract)?3 Further,
under the Policy’s definition of “Loss of Business Income,” was there a discernible (and provable)
diminution in operations “caused by or resulting from” the fire?

3

The terms “could restore” and “reasonable speed” connote some subjectivity.
Reasonableness is ordinarily a question of fact for the jury. Schuessler v. Wolter, __ P.3d __, 2012
WL 1881002, at *7 (Colo. App. May 24, 2012); URS Group, Inc. v. Tetra Tech FW, Inc., 181 P.3d
380, 389 (Colo. App. 2008). See also STMicroelectronics, N.V. v. Credit Suisse Securities (USA)
LLC, 648 F.3d 68, 81 (2d Cir. 2011) (“reasonable” is inherently imprecise and involves balancing
factors); City of New York v. U.S. E. P. A., 543 F. Supp. 1084, 1089 (S.D.N.Y. 1981) (“The term
‘reasonable’ inherently connotes a weighing of all the relevant circumstances.”); Putnam Park
Associates v. Fahnestock and Co., Inc., 73 Conn. App. 1, 11, 807 A.2d 991, 997-98 (Conn. App.
2002) (“[T]he term ‘reasonable time’ for performance of a contract is ordinarily a question of fact
for the trier of fact . . . .”).
8

Finally, the Policy requires Plaintiffs to use reasonable speed to restore operations. Plaintiffs
are not contractors and presumably (although I do not have a record on this) did not themselves
reconstruct the Premises. Thus, the Policy should not be interpreted as requiring Plaintiffs to use
reasonable speed to actually restore the Premises, which is what occurred as of January 23, 2009
(for the speed in which the Premises were restored was likely out of Plaintiffs’ control), but to
restore operations, which may or may not have occurred by January 23, 2009. Restoring the
Premises and restoring operations have to be interpreted differently.
I believe these are jury questions, and for that reason, on the issue of extended coverage
(which is a maximum of 90 days after January 23, 2009), summary judgment for either side is not
appropriate.
2.

CROSS MOTIONS ON BAD FAITH CLAIM RE EXTENDED
BUSINESS INCOME

Plaintiffs contend that Defendant engaged in bad faith when, in the context of post-fire
communications, Defendant advised Plaintiffs of the business interruption coverages but not of the
extended (post-restoration) coverage. Moreover, Plaintiffs contend that Defendant engaged in bad
faith when it did not assess any post-restoration losses, did not adjust such a claim, and did not pay
any post-restoration benefits.
A claim of bad faith alleges that an insurance company refused to make or delayed payments
owed to its insured under a first-party policy such as that presented here. Goodson v. Am. Standard
Ins. Co., 89 P.3d 409, 414 (Colo.2004). For an insured to prevail on a bad faith breach of contract
claim against the insurer, the insured must establish that the insurer acted unreasonably and with
knowledge of or reckless disregard of its unreasonableness. Dale v. Guar. Nat'l Ins. Co., 948 P.2d
545, 551 (Colo. 1997).

9

I do not believe that summary judgment is appropriate for Plaintiffs on this claim. First, as
noted by the Schuessler case cited above (and many other Colorado appellate decisions), in a firstparty bad faith breach of insurance contract case, the reasonableness of the insurer’s actions is
ordinarily a question of fact for the jury, unless there are no genuine issues of fact and
reasonableness is not genuinely disputed.
Second, although I find a remarkable dearth of citations to any record evidence in their
opposition to Plaintiffs’ motion for partial summary judgment,4 I find that the reasonableness of
Defendant’s actions regarding disclosure (or nondisclosure) of coverage to be nonetheless
sufficiently disputed to deny Plaintiffs summary judgment on this point. Plaintiffs did not support
this factual allegation (undisputed fact #14) with any citation to the record. What Plaintiffs did
provide is a letter from Defendant in which the author, claim representative James Duckworth,
explained the coverage for loss of business income during the period of restoration. This does not
establish that Duckworth did not at some other time explain extended coverage. Conversely, in
support of their allegation that Duckworth in fact “provided written disclosure of all available
coverages,” Defendant cites to the deposition testimony of their representative Boyd Beadles; he
testified that he believed Defendant disclosed to the Plaintiffs -- after the loss occurred -- the
existence of extended business loss coverages. When asked what the source of his understanding

4

In response to Plaintiffs’ 31 separately numbered undisputed facts, Defendant cites to
evidence only as to numbers 14, 27, 28, and 29. For many of Plaintiffs’ undisputed facts, Defendant
merely states in conclusory fashion that Plaintiffs have not submitted sufficient evidence to establish
the fact. “A 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; or (B) showing
that the materials cited do not establish the absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)
(emphasis added).
10

was, Beadles stated that he saw it in Duckworth’s deposition testimony. This is inadmissible
hearsay. Both parties failed to meet the standards of Rule 56 regarding this material fact, but
Plaintiffs’ failure is fatal to their request for summary judgment on the issue of explanation of
coverages.
Concerning the failure to pay extended business loss benefits, again I find that the
reasonableness of Defendant’s actions are a jury question. Defendant has pointed to evidence in the
record showing that Plaintiffs’ office was capable of operating at full capacity on January 23, 2009.
Whether Plaintiffs could have restored their operations as of that date with reasonable speed is a jury
question. Since Plaintiffs may not even have qualified for any payments for losses postdating
January 23, 2009, I cannot say as a matter of law that Defendant’s admitted failure to pay such
benefits was bad faith.
Defendant also moves for summary judgment on Plaintiffs’ bad faith claim. Defendant
characterizes Plaintiffs’ bad faith claim as relying either on unreasonable delay or undervaluation.
Plaintiffs submit that their claim is broader, and encompasses failure to assess Plaintiffs’ damages
in good faith and failure to communicate to Plaintiffs the extent of coverage available under the
Policy. Colorado courts have recognized that a bad faith claim is not limited to the insurance
company's decision to grant or deny a claim but can also include an insurer’s unreasonable refusal
to investigate a claim and to gather facts relevant to the claim. Travelers Ins. Co. v. Savio, 706 P.2d
1258, 1274 n.20 (Colo. 1985). “All aspects of payment, including the adjustment of a claim, that
is, the ‘[determination] of the amount that an insurer will pay an insured to cover a loss,’ see Blacks
Law Dictionary 48 (9th ed.2009), fall within an insurer’s good faith duty to its insured.” Dunn v.
American Family Ins., 251 P.3d 1232, 1235 (Colo. App. 2010). Indeed, “for any actions pertaining
to the investigation and handling of a claim, an insurer acting unreasonably, and with knowledge
11

or reckless disregard, may be held liable in tort for the breach of the covenant of good faith and fair
dealing.” Id. The Dunn case dealt specifically with the insurer’s duty to communicate with the
insured regarding coverage after a claim is filed, holding that breach of such a duty can be the basis
for a bad faith claim.
One of Defendant’s principal arguments is that none of Plaintiffs’ experts express the opinion
that Defendant’s approach in evaluating the business loss claim was without reasonable basis.
However, expert testimony is not necessary to establish the standard of care in the insurance industry
to prove that the insurer breached its duty of good faith, i.e., that the insurer acted unreasonably, if
the standard is within the common knowledge and experience of ordinary persons. American Family
Mut. Ins. Co. v. Allen, 102 P.3d 333, 344 (Colo. 2004). Here, I believe the standard of care
(involving timeliness, proper assessment and evaluation, and proper communication) are sufficiently
within the common knowledge and experience of ordinary persons as to not require expert
testimony.
Defendant also argues that during the claim adjusting period, Plaintiffs provided loss
numbers that they now have disavowed and that were artificially high. Defendant accurately
describes how Plaintiffs and their experts have agreed that the proof of losses submitted by Plaintiffs
were originally unreasonable. Defendant thus argues that their assessment of losses at $79,910
cannot, as a matter of law, be unreasonable. They further assert that some of the information needed
to accurately adjust Plaintiffs’ claim (e.g., cash collection data) was not produced until well after this
lawsuit was filed.
There are certain specific arguments Defendant makes with which I agree. For example, to
the extent Plaintiffs are arguing that it was bad faith for Defendant to have “challenged Plaintiffs’
pre-litigation demands for over $370,000 in business-interruption benefits ,” Defendant’s Motion
12

at 13, I will not permit this to be a basis for a jury verdict on bad faith. The same is true for any
argument that Defendant “should not have challenged Plaintiffs’ loss estimate provided in discovery
in this action.” Id.5 As noted above, the issue of bad faith is usually one of fact for the jury. At this
point in the proceedings, I am not convinced that no reasonable juror could find a lack of
unreasonableness as to any possible aspect of Defendant’s claim handling for which Colorado law
would permit a bad faith claim to be asserted. I am not foreclosing the possibility that I may become
so convinced after Plaintiffs’ presentation of evidence at trial, or after all the evidence is in. But at
this point I find it more efficient to deny summary judgment rather than “piece-meal” the issue, and
to address at trial the specific allegations of bad faith, if any, that have enough of a factual basis to
submit to a jury. Consistent with this ruling, to the extent I ultimately find that any claim for bad
faith can be decided by the jury, the jury will be given detailed interrogatory questions as a precursor
to any finding of bad faith. I will rely upon the parties to assist in the drafting of such instructions
and jury verdict form.
3.

PLAINTIFFS’ BREACH OF CONTRACT CLAIM FOR SUPER
STRETCH BENEFITS

Plaintiffs request summary judgment on the Defendant’s obligation to pay loss of business
income for 90 days after January 23, 2009, pursuant to the “super stretch” endorsement purchased
by Plaintiffs. This endorsement substitutes 90 days for the 30-day period under the extended
coverage provision discussed above. If summary judgment is not appropriate on whether any part
of the 30-day extended coverage provision of the Policy was due and owing, the same is true for the

5

By listing these two specific arguments I do not intend to convey the message that all other
aspects of Plaintiffs’ bad faith claim are valid. For example, Defendant may also be correct in its
argument that the delay in receiving certain information from Plaintiffs bars a bad faith claim for
delay. For brevity’s sake, and in light of my decision to deny summary judgment for Defendant at
this point, I do not intend to specifically analyze all the facets of the bad faith claim.
13

90-day super stretch endorsement. Plaintiffs also request that I enter summary judgment on the
amount of business losses incurred during that post-January 23, 2009 period, since Plaintiffs
submitted unrebutted evidence (a report by Kurt Kofford) on such amount. However, at trial
Defendants will be permitted to impeach Kofford, and it will be up to the jury to determine the
amount of damages, if any, to which Plaintiffs are entitled on this claim.
Defendant also requests summary judgment on this claim. As I have discussed herein, the
record before me is insufficient to determine how quickly, using reasonable speed, Plaintiffs’
operations should have recovered (when viewed in light of the economy as a whole which, as
Defendant notes, was in an historic downturn at all relevant times concerning the loss, restoration
period and extended coverage period). These appear to me to be quintessential jury questions. If,
at the trial of this matter, Defendant establishes that no reasonable jury could possibly find that 90days of benefits were necessary or proper, I will enter an appropriate order.
4.

CROSS MOTIONS ON BAD FAITH CLAIM RE SUPER
STRETCH ENDORSEMENT

For the same reasons discussed above in connection with Plaintiffs’ bad faith claim
concerning extended business loss coverage, I deny summary judgment for Plaintiffs on the bad faith
claim concerning the super stretch endorsement, both for the alleged claim that Defendant failed to
advise Plaintiffs of such coverage, and for the actual denial of coverage. The same is true for
Defendant’s motion. Again, in the event the evidence is insufficient to go to the jury on this issue,
I will enter judgment at the appropriate time during trial.
III. CONCLUSION
For the reasons stated herein, Plaintiffs’ Motion for Partial Summary Judgment Re: Business
Income for Period from 1/24/2009 to 4/23/2009 [filed July 6, 2012; docket #97], and Defendant’s

14

Motion for Partial Summary Judgment and Brief in Support of the Motion (Oral Argument
Requested) [filed July 6, 2012; docket #100], are denied.
Dated at Denver, Colorado, this 4th day of September, 2012.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

15