Phoenix Insurance Company, The et al v. Cantex, Inc. et al

Filing 269

ORDER The Recommendation of United States Magistrate Judge 255 , is approved and adopted, except to the extent the recommendation regarding Cantex's bad faith claims against Scottsdale is mooted. The Third-Party Defendant Scottsdale Insurance Company's Objections to the Recommendation of the United States Magistrate Judge 261 , are overruled. Defendant Scottsdale Insurance Company's Motion To Dismiss 194 , is granted in part, denied in part, and denied as moot in part. By Judge Robert E. Blackburn on 9/2/2015.(mlace, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-00507-REB-BNB
THE PHOENIX INSURANCE COMPANY,
THE TRAVELERS INDEMNITY COMPANY, and
THE TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA,
Plaintiffs,
v.
CANTEX, INC.,
CONCRETE MANAGEMENT CORP.,
LANDMARK AMERICAN INSURANCE COMPANY,
CONTINENTAL INSURANCE COMPANY, and
AMERISURE INSURANCE COMPANY,
Defendants,
and
CANTEX, INC.,
Third Party Plaintiff,
v.
SCOTTSDALE INSURANCE COMPANY, and
CONTINENTAL CASUALTY COMPANY,
Third Party Defendants.1

ORDER OVERRULING OBJECTIONS TO AND ADOPTING
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Blackburn, J.

1

The court has highlighted in the caption those parties who still have claims remaining in this
lawsuit, as expatiated by the Joint Status Report Identifying Remaining Parties and Claims [#262],
filed July 28, 2015.

The matters before me are (1) the Recommendation of United States
Magistrate Judge [#255],2 filed July 13, 2015; and (2) Third-Party Defendant
Scottsdale Insurance Company’s Objections to the Recommendation of the
United States Magistrate Judge [#261], filed July 27, 2015. I overrule the objections,
adopt the recommendation (to the extent not already mooted by the parties’ stipulation
of dismissal of Cantex’s bad faith claim),3 and dispose of the motion to dismiss the
breach of contract claims as recommended by the magistrate judge.
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the
recommendation to which objections have been filed, and have considered carefully the
recommendation, objections, and applicable caselaw. The recommendation is detailed
and well reasoned. The objections of third-party defendant, Scottsdale Insurance
Company, are imponderous and without merit.
Thus, 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 Recommendation of United States Magistrate Judge [#255], filed
July 13, 2015, is approved and adopted as an order of this court, except to the extent

2

“[#255]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.
3

After the motion to dismiss had been filed, but before the magistrate judge issued her
recommendation, the parties filed their Stipulation for Dismissal Without Prejudice of Cantex Inc.’s
Bad Faith Claim Against Scottsdale Insurance Company [#247], filed June 18, 2015. Thus, that
portion of the magistrate judge’s recommendation that consider this claim is moot.

2

the recommendation regarding Cantex’s bad faith claims against Scottsdale is mooted
by the parties’ stipulation dismissing those claims (see supra note 3);
2. That the objections contained in Third-Party Defendant Scottsdale
Insurance Company’s Objections to the Recommendation of the United States
Magistrate Judge [#261], filed July 27, 2015, are overruled;
3. That Defendant Scottsdale Insurance Company’s Motion To
Dismiss [#194], filed November 21, 2014, is granted in part, denied in part, and denied
as moot in part, as follows:
a. That the motion is granted insofar as it seeks dismissal of Cantex’s
claim for breach of contract implicating policy number XLS0040128
(referenced in the recommendation as the “February 2007 Scottsdale
Policy”), and that claim is dismissed without prejudice;
b. That the motion is denied insofar as it seeks dismissal of Cantex’s
claim for breach of contract implicating policy number XLS0045526
(referenced in the recommendation as the “November 2007 Scottsdale
Policy”); and
c. That the motion is denied as moot insofar as it seeks dismissal of
Cantex’s bad faith claims against Scottsdale; and
4. That at the time judgment enters, judgment without prejudice shall enter on
behalf of third-party defendant Scottsdale Insurance Company and against third-party
plaintiff Cantex, Inc., on Cantex’s claim for breach of contract implicating policy number
XLS0040128.

3

Dated September 2, 2015, at Denver, Colorado.
BY THE COURT:

4