Phoenix Insurance Company, The et al v. Trinity Universal Insurance Company of Kansas et al

Filing 200

ORDER Overruling Objections to And Adopting Recommendation of United States Magistrate Judge. Plaintiffs' Objections to Magistrate Recommendation Re: Cross-Motions for Summary Judgment Between Plaintiffs and Trinity Universal Insurance Company o f Kansas, Trinity Universal Insurance of Kansas, and Trinity Universal Insurance Company [# 192 ], are OVERRULED. The Recommendation of United State Magistrate Judge [# 176 is APPROVED AND ADOPTED as an order of this court. Plaintiffs' Motion f or Partial Summary Judgment Re: Allocation of Damages [# 126 ] is GRANTED IN PART and DENIED IN PART. Defendants Trinity Universal Insurance Company of Kansas, Trinity Universal Insurance of Kansas, and Trinity Universal Insurance Company's Motion for Summary Judgment [# 128 ] is GRANTED IN PART and DENIED IN PART. By Judge Robert E. Blackburn on 9/23/2013.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn

Civil Action No. 12-cv-01553-REB-KLM
THE PHOENIX INSURANCE COMPANY, a Connecticut insurance company, and
ST. PAUL SURPLUS LINES INSURANCE COMPANY, a Connecticut insurance
company,
Plaintiffs,
v.
TRINITY UNIVERSAL INSURANCE COMPANY OF KANSAS, a Kansas insurance
company,
TRINITY UNIVERSAL INSURANCE OF KANSAS, a Kansas insurance company,
TRINITY UNIVERSAL INSURANCE COMPANY, a Texas insurance company, and
MOUNTAIN STATES MUTUAL CASUALTY COMPANY, a New Mexico insurance
company,
Defendants.

ORDER OVERRULING OBJECTIONS TO AND ADOPTING
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matters before me are (1) Recommendation of United State Magistrate
Judge [#176],1 filed August 29, 2013; and (2) Plaintiffs’ Objections to Magistrate
Recommendation Re: Cross-Motions for Summary Judgment Between Plaintiffs
and Trinity Universal Insurance Company of Kansas, Trinity Universal Insurance
of Kansas, and Trinity Universal Insurance Company [#192], filed September 12,
2013. I overrule the objections and approve and adopt the recommendation as an order

1

“[#176]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s electronic case filing and management system (CM/ECF). I use this
convention throughout this order.

of this court.
As required by 28 U.S.C. § 636(b), I reviewed de novo all portions of the
recommendation to which objections have been filed, and considered carefully the
recommendation, objections, and applicable caselaw. The recommendation is detailed
and well-reasoned. Plaintiffs’ settlement agreement (and the declaration submitted in
support of their sole objection) is insufficient to demonstrate that the Trinity defendants
are not entitled to credit in the full amount of the $75,000. I agree with the magistrate
judge that “[p]laintiffs cannot stand in [the insured’s] shoes in seeking reimbursement of
defense costs from the Trinity Defendants and, at the same time, ignore the agreement
[the insured] entered into with the Trinity Defendants’ insured.” (Recommendation at
27.)
Therefore, I find and conclude that the arguments advanced, authorities cited,
and findings of fact, conclusions of law, and recommendation proposed by the
magistrate judge should be approved and adopted.
THEREFORE, IT IS ORDERED as follows:
1. That the objections stated in Plaintiffs’ Objections to Magistrate
Recommendation Re: Cross-Motions for Summary Judgment Between Plaintiffs
and Trinity Universal Insurance Company of Kansas, Trinity Universal Insurance
of Kansas, and Trinity Universal Insurance Company [#192], filed September 12,
2013, are OVERRULED;
2. That the Recommendation of United State Magistrate Judge [#176], filed
August 29, 2013, is APPROVED AND ADOPTED as an order of this court;

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3. That Plaintiffs’ Motion for Partial Summary Judgment Re: Allocation of
Damages [#126], is GRANTED IN PART and DENIED IN PART, as follows:
a. That the motion is GRANTED insofar as it seeks a declaration that
defendants, Trinity Universal Insurance Company of Kansas; Trinity
Universal Insurance of Kansas; and Trinity Universal Insurance Company
are liable for defense costs and fees incurred after April 6, 2011, relating
to work performed by their insured, Beaty Construction Company, on the
Rivergate Loft Condominiums project on a dollar-for-dollar basis up to the
applicable policy limits, subject to a $75,000 credit; and
b. That in all other respects, the motion is DENIED; and
4. That Defendants Trinity Universal Insurance Company of Kansas, Trinity
Universal Insurance of Kansas, and Trinity Universal Insurance Company’s
Motion for Summary Judgment [#128], is GRANTED IN PART and DENIED IN
PART as follows:
a. That the motion is GRANTED insofar as it pertains to defendants’
contentions (1) that they are not responsible for defense costs incurred
prior to April 6, 2011, relating to allegations in the underlying action
regarding work performed by Beaty Construction Company on the
Rivergate Loft Condominiums project on a dollar-for-dollar basis up to the
applicable policy limits; and (2) that they are entitled to a credit of $75,000
against the amount of defense costs owed; and

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b. That in all other respects, the motion is DENIED.2
Dated September 23, 2013, at Denver, Colorado.
BY THE COURT:

2

Accordingly, it appears that the only issue remaining for trial is the amount of defense costs for
which the Trinity defendants are responsible.

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