Travelers Indemnity Company of America, The v. BonBeck Parker, LLC et al

Filing 202

ORDER denying as moot 189 , 190 , 191 , and 192 Motions in Limine, and granting 196 Motion for Order. Judgment shall enter pursuant to this order and 194 . Entered by Judge Raymond P. Moore on 4/23/2020. (cpear)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 1:14-cv-02059-RM-NRN
BONBECK PARKER, LLC; and
BONBECK HL, LLC,
Plaintiffs,
v.
THE TRAVELERS INDEMNITY COMPANY OF AMERICA,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter is before the Court on two remaining issues: (1) the amount of statutory
interest owed by Defendant (“Travelers”) to Plaintiffs (“Bonbeck”); and (2) whether there are
any remaining issues for trial. Upon consideration of the parties’ filings on the issues, the court
record, and the applicable law, and being otherwise fully advised, the Court finds and orders as
follows.
I.

BACKGROUND
The parties are well-versed with the lengthy background which precedes this Order, so it

will only be summarized here. The issue in this case was Travelers’ liability for hail damage to
Bonbeck’s commercial property insured by Travelers. The policy required an appraisal but the
parties could not agree on the scope of the appraisal. Travelers then filed this lawsuit with two
declaratory judgment claims. In summary, the first claim sought declaratory relief as to coverage
while the second claim sought declaratory relief concerning the scope of the appraisal. Bonbeck

responded with four counterclaims, with the fourth counterclaim seeking to compel appraisal and
a determination of its scope.
Upon cross-motions for partial summary judgment on the issue of whether, under
Colorado law, an appraisal of “amount of loss” allowed appraisers to determine the issue of
causation, the Court agreed with Bonbeck and found it did. The parties were ordered to complete
an appraisal and this case was stayed. The appraisal issue was raised in Travelers’ Count II and
Bonbeck’s Counterclaim IV; the Court’s order on this issue undisputedly resolved these two
claims.
Thereafter, the parties completed the appraisal process, an award was made, and
Travelers paid that award – with no reservations.1 In 2017, the parties then came back to court to
proceed with the remaining claims. A scheduling order was issued and the parties conducted
discovery.
On September 7, 2018, Travelers filed a Motion to Re-Designate Parties, requesting
Bonbeck be designated as the plaintiff and Travelers be designated as the defendant. (ECF No.
114.) Travelers stated it requested this designation because of the following:
… In the Scheduling Order entered on November 29, 2017, the parties agreed that
Travelers’ claims for declaratory relief were resolved by this Court’s prior ruling
on the parties’ cross motion for summary judgment and appraisal, and the only
pending claims are the causes of action for breach of contract, common law bad
faith, and statutory bad faith asserted in Bonbeck’s counterclaims.
In light of the fact that the issues raised in Travelers’ Complaint for Declaratory
Judgment, have been resolved by this Court’s ruling on the parties’ cross motions
for summary judgment and the appraisal process, Travelers’ Declaratory
Judgment is now moot, and Bonbeck’s counterclaims against Travelers remain the
only operative causes of action between the parties.

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The award set forth the amount for replacement cost value and actual cash value; Travelers paid the actual cash
value.
2

(ECF No. 114, ¶¶ 6, 7 (emphasis added).) The Magistrate Judge, to whom the Court had referred
the motion for resolution, granted Travelers’ motion. (ECF No. 119.)
The parties thereafter filed dispositive motions. Bonbeck had two counts remaining,
breach of contract and statutory bad faith.2 Bonbeck filed a motion for partial summary judgment
on its claim for breach of contract while Travelers filed a motion for summary judgment as to
both of Bonbeck’s claims. In these filings, Travelers did not argue3 there was no coverage for the
hail damage, e.g., that Bonbeck could not establish its breach of contract claim because there was
no coverage and, therefore, no failure to perform by Travelers, or raise any affirmative defenses
to Bonbeck’s breach of contract claim. See, e.g., Colo. Jury Instr., Civil 30:18-30:29 (identifying
affirmative defenses); Fed. R. Civ. P. 8(c) (same). Instead, Travelers stated “there was a dispute
as to coverage for certain of the claimed damages to the extent they were not caused by the
subject wind/hail storm and whether that dispute could be resolved by the appraisal process.”
(ECF No. 139, p. 12 (emphasis added).) After addressing the parties’ motions, all of Bonbeck’s
claims were resolved except for the issue of the amount of statutory interest owed to Bonbeck. In
addition, even though it did not recall that Travelers previously stated its Count I was moot, the
Court found it appeared this count was moot and directed the parties to address this issue at an
upcoming conference.
At the conference, the issue of mootness was raised and Bonbeck reminded the Court
that Travelers had affirmatively represented to the court that its counts were moot. The Court
allowed the parties to brief the issue, and to advise whether they could reach an agreement on

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The Court granted Bonbeck’s request to dismiss its claim for common law bad faith.
Travelers’ assertion that the Court did not address its affirmative defense concerning coverage is disingenuous
when Travelers failed to raise such defense for the Court to address.
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the amount of statutory interest owed on the actual cash value award. The parties have now
done so.
II.

DISCUSSION
A. Statutory Interest
The parties have stipulated the amount of interest accrued on the actual cash value and

owed to Bonbeck is $36,142.63.4 This stipulation is accepted and judgment will be entered on
this amount.
B. No Issues Remains
No issues remain, contrary to Travelers’ revisionist interpretation of the record. First,
Travelers stated “there was a dispute as to coverage for certain of the claimed damages to the
extent they were not caused by the subject wind/hail storm and whether that dispute could be
resolved by the appraisal process.” (Emphasis added.) Of course, the Court found the appraiser
could determine causation.5 And, Travelers paid the amount awarded through the appraisal
process without protest, reservation, or other any limitation. See Pueblo Country Club v. AXA
Corp. Solutions Ins. Co., No. 05-cv-01296-WYD-MJW, 2007 WL 951790, at *4 (D. Colo. Mar.
28, 2007) (“an insurer must raise or reserve all defenses known to it within a reasonable time or
those defenses may be waived or the insurer may be estopped from asserting them”). Such facts
show any coverage issue is moot.
Next, after the appraisal was completed, Travelers affirmatively represented to the court
the issue of coverage was moot.6 Discovery has now been completed on the basis that coverage

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Without waiving any party’s appellate rights.
Travelers raises several arguments of why allowing an appraiser to determine causation of damages is improper or
incorrect but the Court has already decided that issue and finds no reason to revisit it here.
6
The fact that Travelers’ statement was made in its request for re-designation of the parties does not obviate its
binding effect.
4
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was not an issue and summary judgment briefing was had and an order was issued without
Travelers raising “coverage” as an issue. As Bonbeck argues, Travelers is precluded from
arguing otherwise now to the prejudice of Bonbeck. See, e.g., Pueblo Country Club, 2007 WL
951790, at *4; Yates v. American Republics Corp., 163 F.2d 178, 180 (10th Cir. 1947) (waiver
and estoppel). This is true whether the coverage issue is raised as a claim or couched as an
“affirmative defense.” Which is another reason why Travelers’ argument is rejected.
Travelers argues that even if it did state its declaratory judgment claims are moot, that has
no impact on its affirmative defense regarding coverage which mirrored its Count I. However,
under the facts and circumstances here, if the issue is moot, it is moot no matter what name
Travelers calls it. Moreover, an affirmative defense is “[a] defendant’s assertion of facts and
arguments that, if true, will defeat the plaintiff’s…claim, even if all the allegations in the
complaint are true.” Black’s Law Dictionary 528 (11th ed. 2019). And, as Bonbeck argues, it has
no claims remaining as the Court has resolved them all. Thus, even assuming, arguendo,
Travelers’ coverage argument was an affirmative defense, such defense is moot because there is
no claim to which such defense can “defeat.”7 At bottom, no coverage issue remains.
III.

CONCLUSION
Based on the foregoing, it is ORDERED:
(1) That the parties’ Stipulation (ECF No. 196) is GRANTED and Bonbeck is awarded
$36,142.63 in statutory interest;
(2) That there are no claims or issues remaining in this case as Travelers’ alleged
coverage defense is barred based on mootness, waiver, and estoppel;

7

Further, if Travelers believed it still had a viable defense, affirmative or otherwise, surely it would – and should –
have raised it in support of its motion for summary judgment or in opposition to Bonbeck’s motion for partial
summary judgment on its breach of contract claim.
5

(3) That the following motions in limine are DENIED AS MOOT: ECF Nos. 189, 190,
191, and 192;
(4) That the Clerk shall enter JUDGMENT in accordance with this Order and with the
Order of February 3, 2020 (ECF No. 194);
(5) That no party is awarded costs under Fed. R. Civ. P. 54(d)(1); and
(6) That the Clerk shall close this case.
DATED this 23rd day of April, 2020.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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