Praetorian Insurance Company v. Axia Contracting, LLC et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 17-cr-2034-WJM-KAS
PRAETORIAN INSURANCE COMPANY,
Plaintiff-Counter Defendant,
v.
AXIA CONTRACTING, LLC, and
255 BLACKHAWK HOSPITALITY, LLP,
Defendants-Counter Plaintiffs.
ORDER DENYING PLAINTIFF’S MOTION FOR LEAVE TO
FILE ANOTHER MOTION FOR SUMMARY JUDGMENT
Before the Court is Plaintiff Praetorian Insurance Company’s (“Plaintiff”) Motion for
Leave to File a Second Motion for Summary Judgment (“Motion”). (ECF No. 251.)
Defendants Axia Contracting, LLC’s and 255 Blackhawk Hospitality, LLC’s (“Defendants”)
oppose the motion. (ECF No. 253.)
For the following reasons, the Court denies the Motion.
I. 	PERTINENT BACKGROUND
The parties are familiar with the background of this case from, among other
sources, the Court’s Order resolving the parties’ cross motions for summary judgment.
(ECF No. 247.) The Court incorporates that background here and adds the following
pertinent facts.
Plaintiff initiated this action in August 2017, seeking declaratory judgment that it was
not required to cover Defendants’ losses because Defendants failed to maintain a fence
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around the jobsite as required by the “Protective Devices Endorsement” provision of the
insurance policy (“Policy”). (ECF No. 1.) Defendants countersued for declaratory
judgment regarding the parties’ rights, obligations, and duties under the Policy, as well as
for breach of contract and statutory and common law1 bad faith. (ECF No. 23 at 19–22, ¶¶
58–78.) In April 2018, Plaintiff moved for summary judgment on its Protective Devices
Endorsement theory. (ECF No. 50.) In March 2019, the Court granted summary judgment
in Plaintiff’s favor but was subsequently reversed by the Tenth Circuit. (ECF No. 76 at 4–
5.)
Several years later, after learning new information from Defendants’ late discovery
disclosures, Plaintiff amended its pleadings, relying on three new theories for why it is not
required to cover Defendants’ losses, totally or partially. (ECF No. 117.) Specifically,
Plaintiff contends that it need not provide coverage for all or part of Defendants’ losses
under the Policy’s (1) “Misrepresentation, Concealment, or Fraud Condition” provision; (2)
“Recoveries” provision; and (3) “Subrogation” provision. (Id. at 7–8.) In September 2023,
the parties filed cross summary judgment motions on Plaintiff’s new theories, among other
issues. (ECF Nos. 181, 182.) In November 2024, the Court granted Defendants’ motion
to the extent it sought judgment on Plaintiff’s Subrogation provision theory but otherwise
denied both cross motions. (ECF No. 247.) The case is now set to proceed to a jury trial
in August 2025 on the remaining claims. (ECF No. 243.)
II. 	ANALYSIS
Notwithstanding this lengthy procedural history, Plaintiff seeks permission to file yet
1 In April 2023, Defendants voluntarily dismissed the common law bad faith claim. (ECF
No. 167.)
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another2 summary judgment motion, contending that a recent unpublished Tenth Circuit
decision—Curtis Park Group, LLC v. Allied World Specialty Ins. Co., 2024 WL 5194886
(10th Cir. Dec. 23, 2024)—“may be dispositive to this case in its entirety.” (ECF No. 251 at
1.) Specifically, Plaintiff argues that the Curtis Park Group decision held “that under a
Builder’s Risk policy, [if] the named insured does not spend anything to repair the
damaged property, it cannot recover.” (Id. at 2.) Plaintiff also quotes the following
sentence from the decision: “[Plaintiff] cannot recover costs it need not pay for.” (Id.) In
this light, Plaintiff argues that Defendants cannot recover in this case because “[i]t is
undisputed that neither Defendant spent any money—nor will they ever—to repair or
replace the damaged property.” (Id.) “Indeed,” Plaintiff continues, “the property was sold
before repairs were made and the new owner paid a company affiliated with the
Defendants to complete construction, i.e., instead of Defendants paying for the repairs,
they were in fact paid to do the repairs by the new owner.” (Id.)
After reviewing the Curtis Park Group decision, the Court thinks—on first blush and
without the benefit of full briefing—that Plaintiff’s argument may have some merit. Even
so, Plaintiff has never argued over the course of this nearly eight-year-old lawsuit that
Defendant cannot recover because they have never paid to repair or replace the damaged
property. Instead, as laid out above, Plaintiff’s strategy has been to argue that various
Policy exclusions void coverage. Plaintiff does not move to amend the pleadings or invoke
any of the standards that would potentially allow it to do so after the Court’s scheduling
order deadline has passed. See Gorsuch, Ltd., B.C. v. Wells Fargo Nat. Bank Ass’n, 771
2 Plaintiff styles the Motion as seeking leave to file a second summary judgment motion, but
Defendants insist that Plaintiff seeks to file a third summary judgment motion. (ECF No. at 253 at
1.)
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F.3d 1230, 1240 (10th Cir. 2014) (holding “that parties seeking to amend their complaints
after a scheduling order deadline must establish good cause for doing so”). For this
reason alone,3 the Motion falters.
It is also worth mentioning, moreover, that Plaintiff has not explained why it has
waited so long to raise this new legal theory. After all, Curtis Park Group did not break
new ground, at least not in a legal sense. To be sure, the Tenth Circuit clearly articulated
several helpful, generally applicable insurance law principles, such as, “If the owner is the
named insured but the cost of repair has indisputably been borne by the contractor, the
owner cannot recover. The insured has suffered no actual loss.” Curtis Park Group, 2024
WL 5194886 at *7.
But Curtis Park Group’s analysis was also heavily tethered to the policy provisions
at issue in that case—provisions that appear to be quite common. The policy in Curtis
Park Group covered losses only if the named insured “actually suffer[ed] a loss as a result
of the damage to” the structure it was building. Id. (emphasis in original). And the policy
outlined important restrictions on what kinds of losses were covered—that is, costs the
named insured “actually spent to repair the deflecting slab.” Id. at 5 (emphasis in original).
Relatedly, the “Valuation” section of the policy measured damage only based on
“replacement cost.” Id.
Similarly, the “Replacement Cost” section of Plaintiff’s Policy provides that Plaintiff
will pay only “the necessary and reasonable costs of materials and labor incurred to repair
or replace . . . the part of the covered property that sustains direct physical loss or
3 The Court also denies the Motion because, as Plaintiff acknowledges, the undersigned’s
practice standards entitle parties to file only one motion for summary judgment. See WJM Revised
Practice Standard III.F.2.
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damage.” (ECF No. 253-6 at 2.) The Policy further provides that, “[i]f the part of the
covered property that sustains direct physical loss or damage is repaired or replaced, the
payment will not exceed the amount [Defendants] spend to repair or replace the damaged
or destroyed property.” (Id.)
For some reason, however, Plaintiff has waited to raise this issue for the better part
of a decade, even though the Policy has ostensibly4 restricted coverage in these similar
respects since Plaintiff drafted it back in November 2016. (ECF No. 50-2.) By stark
contrast, the insurer in Curtis Park Group repeatedly and timely brought to the trial court’s
attention its theory that the named insured could not recover because it had not paid and
would never “pay the hard costs of the repair.” Id. at 3. If the Court had to guess, it seems
that the Curtis Park Group decision may have alerted Plaintiff to the potential viability of
this legal theory. But Plaintiff’s attempt to assert this theory after this belated realization
via a motion for leave to file another summary judgment motion runs headlong into the
requirements of Fed. R. Civ. P. 16(b)(4) and Fed. R. Civ. P. 15(a)—requirements Plaintiff
does not even begin to attempt to satisfy. See SRM, Inc. v. Great Am. Ins. Co., 2014 WL
11350315, at *6 (W.D. Okla. July 3, 2014), aff'd, 798 F.3d 1322 (10th Cir. 2015) (“The
court would have been on solid ground summarily dismissing SRM's ‘new’ facts and ‘new’
law with no evaluation on the merits because the new facts and new law are not new at
4 Defendants maintain that “[t]he Policy isn’t so limited.” (ECF No. 253 at 9.) They point out
that the “Loss Payment Options” section of the Policy provides Plaintiff with the option to “pay the
value of the lost or damaged property.” (Id. at 9–10.) In Defendants’ view, this language belies the
notion that coverage is limited to circumstances where an insured repairs or replaces the covered
property. (Id. at 10 (“If the only way for Defendants to recover under the Policy was to get
reimbursement for repairs already performed, there would be no difference between the value of
the covered property (i.e., the amount determined under the Valuation section), and the separately
listed cost of repairing or replacing the lost or damaged property.”).)
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all—they could have been included in SRM's initial brief.”); see also Bridgestone/Firestone,
Inc. v. Loc. Union No. 998, United Rubber, Cork, Linoleum & Plastic Workers of Am., 1990
WL 269444, at *1 (W.D. Okla. Sept. 4, 1990) (“Courts are already drowning in paper, and
briefing of issues must at some point come to an end.”).5 Simply put, Plaintiff cannot now
move for summary judgment on a legal theory it has had almost a decade to plead but
which, for whatever reason, it has elected never to assert in this action.
I. 	CONCLUSION
For all these reasons, the Motion is DENIED. (ECF No. 251.)
Dated this 16 th day of January, 2025.
BY THE COURT:
______________________
William J. Martínez
Senior United States District Judge
5 While the two cases cited here were in the motion for reconsideration context, the spirit
behind their reasoning nonetheless applies here: parties are not entitled to cite “new law” in an
attempt to posit new legal theories they could have raised before deadlines have passed.
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