Kimball v. Nationwide Ins. Co.
| Decision Date | 11 April 2023 |
| Docket Number | Civil Action 21-cv-02201-REB-SKC |
| Parties | ROSS KIMBALL and LAUREN KIMBALL Plaintiffs, v. NATIONWIDE INSURANCE COMPANY OF AMERICA, Defendant. |
| Court | U.S. District Court — District of Colorado |
The matters before me are (1) Plaintiffs' Partial Motion for Summary Judgment [#59],[1] filed September 28, 2022; and (2) Defendant's Motion for Partial Summary Judgment [#60], filed September 28, 2022. I deny both motions.
I have jurisdiction over this matter pursuant to 28 U.S.C. § 1332 (diversity of citizenship).
Summary judgment is proper when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).
A dispute is “genuine” if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir. 1994). A fact is “material” if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Farthing, 39 F.3d at 1134.
A party who does not have the burden of proof at trial must show the absence of a genuine dispute of material fact. Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994), cert. denied, 115 S.Ct. 1315 (1995). By contrast, a movant who will bear the burden of proof must submit evidence to establish every essential element of its claim or affirmative defense. See In re Ribozyme Pharmaceuticals, Inc. Securities Litigation, 209 F.Supp.2d 1106, 1111 (D. Colo. 2002). In either case, once the motion has been properly supported, the burden shifts to the nonmovant to show, by tendering depositions, affidavits, and other competent evidence, that summary judgment is not proper. Concrete Works, 36 F.3d at 1518. All the evidence must be viewed in the light most favorable to the party opposing the motion. Simms v. Oklahoma ex rel Department of Mental Health and Substance Abuse Services, 165 F.3d 1321, 1326 (10th Cir.), cert. denied, 120 S.Ct. 53 (1999).
That the parties have filed cross-motions for summary judgment does not necessarily indicate summary judgment is proper. See Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000); James Barlow Family Ltd. Partnership v. David M. Munson, Inc., 132 F.3d 1316, 1319 (10th Cir. 1997), cert. denied, 118 S.Ct. 1364 (1998). “Cross-motions for summary judgment are to be treated separately; the denial of one does not require the grant of another.” Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979). Although the court is “entitled to assume that no evidence needs to be considered other than that filed by the parties,” each party has an independent obligation to satisfy its respective the burden of proof, and summary judgment will not be appropriate if genuine disputes of material fact remain. Atlantic Richfield Co., 226 F.3d at 1148 (citation and internal quotation marks omitted).
On November 14, 2019, plaintiffs Ross and Lauren Kimball entered into a contract with TBros Construction (“TBros”), owned by Brad Riviere, to undertake a substantial renovation of their kitchen, sun room, living room, and laundry area. (Plf. Motion App., Exh. C ¶ 4 at 1 & at 6-7.) Under the terms of the contract, the acquisition of permits for the construction was not included in the scope of work. It thus fell to the Kimballs “to secure necessary permits through Arapahoe County: homeowner's permit.” (Id., Exh. C at 6.) Although the project start date was “contingent upon permitting approval” from the county, the contract also contemplated that “[t]his countersigned document serves as approval to move forward with Phase 1" of the project. Phase 1 called for, inter alia, demolition of the kitchen and sun room floors. (Id.)
The Kimballs applied for a permit from the county on December 13, 2019. As she was completing the application, Mrs. Kimball texted Mr. Riviere,[2] to inquire about the cost of materials, as she was planning to state - falsely - that she and Mr. Kimball were providing the labor for the renovation themselves.[3] In addition, Mrs. Kimball falsely answered “‘no' to the question ‘do we have more than 32 square feet of demo' because that leads to an asbestos inspection.” (Def. Motion App., Exh. D at 41.) The contract itself plainly shows this representation to be false, as the plans for kitchen alone contemplated substantially more than 32 square feet of renovation. (Id., Exh. E at 7.)[4]
When Mrs. Kimball submitted the application, she was informed there would be a “4-6 week turn around” to secure the permit. (Def. Motion App., Exh. D at 41.) In declarations filed in support of their motion for partial summary judgment, the Kimballs aver they insisted no demolition begin until permits were acquired. (Plf. Motion App., Exhs. C ¶¶ 7-8 at 2 at & D ¶¶ 6-7 at 2.) However, although the Kimballs did express some hesitancy early on about beginning demolition without a permit (see Plf. Motion App., Exh. D at 7), they allowed TBros access to the home as early as November 25, 2019 (id., Exh. D at 9), discussed plans for Mr. Riviere to do electrical work at the house on December 2 (Def. Resp. App., Exh. L at 3), allowed him to begin demolishing the kitchen ceiling some time between December 6 and December 9 (see id., Exh. L at 3, 6-8), all before even submitting an application for a permit. Thereafter, and knowing issuance of a permit would take four to six weeks, the Kimballs were aware that TBros dug an electrical trench (Plf. Motion App., Exh. D at 9 (text exchange of December 18, 2019)), and they authorized Mr. Riviere to take up the laundry room flooring (id., Exh. D at 27-28 (text exchange of December 20, 2019)).[5]
On December 31, Stanley Turner, the plans examiner, having noticed the obvious fact that the Kimballs' renovation plans contemplated more than 32 square feet of demolition,[6] inquired via email whether an asbestos test had been conducted and sent to the CDPHE “for review and permit release.” (Def. Motion App., Exh. D at 13 (emphasis added).) Mrs. Kimball forwarded this information to Mr. Riviere and asked if “this permit situation” effected the plan to proceed with demolition the following week (Plf. Motion App., Exh. D at 31.) She seemed incredulous that such a test was required, since “asbestos is a thing of 70 years ago.” (Def Motion App., Exh. D at 42).
That supposition is not at all correct. As noted on the very web page which contains the link to begin the permit application process, Arapahoe County follows Colorado Department of Public Health and Environment (“CDPHE”) guidelines for asbestos testing and abatement.[7] The CDPHE guidelines establish trigger levels for the requirement of asbestos testing in a single-family dwelling: “50 linear feet on pipes; 32 square feet on other surfaces; or the volume equivalent of a 55-gallon drum.” (See Amend. Compl. App., Exh. 2 at 2.) “If the structures/components to be disturbed exceed the trigger levels, they must be inspected for asbestos by a Colorado-certified asbestos building inspector, unless the building was built after October 12, 1988.” (See id., Exh. 2 at 2 (emphasis in original).) These inspection and testing requirements plainly were implicated both by the age of the Kimballs' home and the scope of the planned renovation.
In light of Mr. Turner's inquiry, on January 1 and 2, 2020, Mrs. Kimball and Mr. Riviere discussed obtaining an asbestos test kit at Home Depot. (Def Motion App., Exh. D at 187.) Neither the Kimballs nor Mr. Riviere seem to have focused on that aspect of Mr. Turner's inquiry which plainly referenced the need for any asbestos test to be submitted to the CDPHE for review.[8] (Id., Exh. D at 13.) Nor does it appear the Kimballs read the information for the asbestos test kit available at Home Depot, which plainly showed that any sample must be sent to a lab for analysis, with results typically available within seven days; even express analysis requires three business days for results. (Def. Resp. App., Exh. O at 12.)
Despite this information, and Mrs. Kimball's contemporaneous insistence that “[w]e better pass this test” (id., Exh. L at 20), the Kimballs permitted Mr. Riviere entry to their home the following Monday, January 6, 2020, to continue the kitchen demolition, as he had indicated was his intent on January 1 (Plf. Motion App., Exh. D at 31). Mrs. Kimball asked Mr. Riviere to “[t]ake demo pics!!” and Mr. Kimball inquired as to “the rough timetable for work in January[:] Electrical, plumbing, hvac, floors, etc.” After starting the demolition, Mr. Riviere informed the Kimballs there were “3 layers of vinyl flooring” in their kitchen. Mrs. Kimball responded with a series of laugh/cry emojis and again asked Mr. Riviere to “[s]end pics!” (Def. Motion App., Exh. D at 18-19.) The pictures Mr. Riviere sent in response clearly show demolition of the kitchen floor. (Def. Resp. App., Exh. L at 15.)
At 4:34 p.m. that afternoon, Mrs. Kimball asked (in addition to other questions) whether an asbestos test “had been conducted and sent to the CDPHE for review and permit release,” as Mr. Turner had inquired a week earlier. (Def Motion App., Exh. D at 20.) Despite receiving no response to that question, two hours later Mrs. Kimball inquired about the “[p]lan for tomorrow?” (Id., Exh. D at 21.) The following afternoon, Mrs. Kimball texted Mr. Riviere “[d]emo is...
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