                                                               FILED
                                                    United States Court of Appeals
                                                            Tenth Circuit

                                                           June 11, 2008
                   UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                           Clerk of Court
                                TENTH CIRCUIT


AMERICAN FIRE AND CASUALTY
COMPANY; OHIO CASUALTY
INSURANCE COMPANY,

      Plaintiffs/Counter-Defendants,
v.                                               No. 07-1174
BCORP CANTERBURY AT                     (D.C. No. 04-CV-00197-EWN-BNB)
RIVERWALK, LLC, as Nominee;                          (D. Colo.)
BCORP HOLDINGS COLORADO,
INC.; BCORP MANAGEMENT, INC.;
KELLY BEGG; GARY BEGG; BCORP
ARLINGTON, LLC,

      Defendants/Counter-Claimants,

v.

ADMIRAL INSURANCE COMPANY,

      Defendant/Cross-Claimant-
      Appellee,

and

NORTH RIVER INSURANCE
COMPANY,

      Defendant/Cross-Claimant,

v.
 ANDREW GRAVES; MARIA
 ALFARAZ; JON HESS; MELINDA
 THOMAS; RYAN KNUTSEN;
 ROSEMARIE LUMETTA; DANA
 OVERBEY; DAVID SEDDON; KEVIN
 WILLIAMS; ROY RAY; BETTE
 WEBBINK; RITA CAMPBELL; ANNA
 GORETZKI; JOSEPH MICKEY;
 MARIANNE MICKEY; IRENE
 HARRIS; MARY HASKINS; WILLIAM
 HASKINS; ETHEL ZOELLER; RAY
 ZOGLO; RUTH ZOGLO; MARINA
 LEFKOWICZ; BCORP-HRT, LLC

           Defendants/Cross-Defendants,

 and

 DAVID HOSLER; CHRISTINE SUESS;
 DEBBIE EYTCHESON,

           Defendants/Cross-Defendants-
           Appellants.


                              ORDER AND JUDGMENT*


Before McCONNELL, BALDOCK, and GORSUCH, Circuit Judges.




       *
          This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.

                                            2
       This Colorado insurance coverage dispute arises out of commercial general liability

policies (Policies) Appellee Admiral Insurance Company (Admiral) issued to a condominium

complex’s builder and developers (collectively BCORP). The Policies obligated Admiral

to indemnify BCORP for certain adverse judgments entered against the latter, including

noneconomic damages for “bodily injury” occurring during the policy periods. Appellants

Debbie Eytcheson, David Hosler, and Christine Suess (Homeowners) sued BCORP in

Colorado state court for defective construction and repair of their condominium units, which

Homeowners first occupied in September 2001, August 2000, and September 2000,

respectively. Homeowners averred that BCORP’s wrongdoing resulted in their units being

inadequately soundproofed. At the state court trial, Homeowners evidenced that excessive

noise levels caused them to experience sleep deprivation, physical exhaustion, anxiety, and

other problems. A jury found BCORP liable and awarded Homeowners noneconomic

damages of $150,000 each. Thereafter, BCORP declared bankruptcy and assigned its

indemnity rights to Homeowners. To make a long story short, Admiral sought a declaratory

judgment in federal court. See 28 U.S.C. §§ 1332, 2201. Admiral contended the Policies did

not cover Homeowners’ noneconomic damages awards. The district court granted Admiral’s

motion for summary judgment. See Am. Fire & Cas. Co. v. BCORP Canterbury at

Riverwalk LLC, 506 F. Supp. 2d 418 (D. Colo. 2007). Homeowners appeal. We exercise

jurisdiction under 28 U.S.C. § 1291, and vacate and remand.




                                             3
                                               I.

       In their state court action, Homeowners averred BCORP’s wrongdoing caused them

continuous exposure to excessive noise levels from the time they occupied their residences.

Homeowners alleged the harmful noise levels resulted from BCORP’s failure to (1) install

proper ceiling channels, (2) properly construct wall-stud connections between units, and

(3) successfully repair the aforementioned deficiencies. Homeowners sought, among other

remedies, economic and noneconomic damages. The parties do not dispute here that

BCORP varied from architectural plans and specifications in building the condominium

complex, and that this faulty construction resulted in excessive sound transmission to and

from adjoining condominium units. See, e.g., Appellant’s App. 567 (hereinafter App.).

       Homeowners testified in state court to the noise issues they experienced in their

respective units and how the excessive sound levels affected them. For instance, Appellant

Debbie Eytcheson testified to hearing a variety of loud, unusual noises inside her residence

from the time she first occupied her unit. These noises included (1) tapping noises in the

water pipes behind her bedroom wall; (2) toilet flushing and other bathroom noises

emanating from adjoining units; (3) adjoining neighbors speaking at a normal decibel inside

their units, as well as in the public hallway; (4) a neighbor’s television and telephone; (5) her

neighbor opening and closing a microwave oven and cupboards; (6) a microwave oven

beeping, clothes washer emptying, and clothes dryer clunking, even with Eytcheson’s own

television and/or computer turned on; and (7) her upstairs neighbors vacuuming (“It actually

sounds like it is sucking up the floor.”), and walking around at all times of the day and night.

                                               4
(“[T]he best way I can describe it is like St. Bernards or . . . Great Danes prancing around on

the floor.”). See App. 727-36.

       Eytcheson stated she was embarrassed that she and her neighbors could hear each

other so distinctly in their respective homes. See, e.g., App. 729 (“I don’t even use an

electric toothbrush because I don’t want to disturb anybody.”). She testified the noise

continually woke her up. The noise was occasionally so loud in her bedroom that she slept

on her living room couch. See App. 732-33, 739. Eytcheson also testified that, though she

had resorted to sleeping with her fan on to block out the noise, doing so made her anxious

because she feared the fan would prevent her from hearing the fire alarm in the event of an

emergency. See App. 736-38.1 Eytcheson explained that she sued BCORP to get her “life


       1
          Eytcheson described how the noise problems in her residence affected her:
       I have found myself . . . [vacillating between] not sleeping at night to
       wanting to sleep all the time. That’s not only because I am tired [but]
       because I don’t want to deal with all of this. It is just working two jobs and
       just trying to live on my own. It is really stressful for me . . . . I found
       myself doing things I wouldn’t normally do. I have never locked my keys
       in my car. I did it twice in a week. I get paranoid about things like leaving
       my curling iron plugged in. I find myself going back to check it two or
       three times just to make sure it is unplugged. And I found myself in a daze
       . . . I need to make a living so it is like I just put myself on go and do the
       things I have to do to make a living. I eat, sleep, and work and it seems like
       that’s all I do. I have lost – this last week I lost my ATM card. A few
       months ago I lost my Discover card . . . . And my life hasn’t been the same
       in the last three years . . . . I have found myself so anxious that I have been
       rude and obnoxious and demanding to the people that I work with and that’s
       not who I am. I have been so embarrassed about how I have been acting . . .
       . During the last 4 years I probably gained 30 to 40 pounds and I have been
       emotional during everything that happens. I put food in my mouth to
       comfort me . . . .
                                                                                   (continued...)

                                               5
back” and “be free from stress.” See App. 756.

       Appellant David Hosler also described experiencing high sound levels in his unit from

the time he first occupied his residence. He testified to daily disturbances by adjoining

neighbors’ stereos, telephones, alarm clocks, voices, and snoring. Hosler stressed, however,

that his neighbors were in no way unreasonably loud. See App. 782-84, 797. Hosler testified

that his upstairs neighbor’s mechanized bed was particularly disturbing because it vibrated

the entire bedroom. See App. 782-83 (“[T]he noise that emanates from that bed. You can

feel it in your chest, it is a vibration and it goes on for 20, 30 seconds at a time . . . . The

same noise emanates every time it is used.”). He noted “constantly” hearing loud footsteps

from the unit above, as well as his neighbor’s wheelchair, which he could hear “clearly.”

Hosler would hear a “thump” whenever the wheelchair moved from carpeting to a hard

surface. See App. 783. He testified that the excessive noise issues in his condominium

caused him to lose sleep. Hosler wore earplugs to sleep. He later moved his bed into his

living room so that it was not directly underneath his upstairs neighbor’s mechanized bed.

He testified that having his bed in the middle of his living room was embarrassing. See App.

791-92. Eventually, Hosler moved out of his unit because he “was going crazy.” See App.

793. Hosler asked the jury to award him damages for what he had “been through in living

in this unit. It has been a nightmare.” See App. 796.

       Appellant Christine Suess reported experiencing noise problems very similar to those


       1
       (...continued)
App. 751-53.

                                               6
that Appellants Eytcheson and Hosler described. Suess testified that the first night she spent

in her unit she was awakened by the sound of rushing water, which “sounded like a water

main had broken in the building,” but in fact was “the sound of water coming [from] . . .

another unit.” See App. 902. Suess testified to hearing her neighbors’ voices so distinctly

inside her home that she believed they were actually standing in another room of her

condominium. See App. 904. In fact, Suess’ neighbors were in an adjoining unit and

speaking at a normal volume. See id. Additionally, she testified to hearing telephones

ringing, appliances humming, and a dragging noise emanating from the unit above her, which

“sounded like [her neighbor] was dragging a dead cowboy with his boots on” across the

floor. See App. 906. Like Hosler, Suess underscored that her neighbors were “very, very

gracious and very quiet” people. See App. 907.

       Suess also testified that the noise problems caused her to lose sleep and embarrassed

her (i.e., the fact her neighbors could hear her inside her own home). Further, Suess stated

that she no longer entertained on account of the obtrusive noise levels. See, e.g., App. 908,

921, 927. Regarding the repairs BCORP undertook to address the noise issues, Suess

admitted being “frustrated” by having to temporarily move out of her unit and to being

“angry” and “feeling deceived” because repairs were necessary in the first place. See, e.g.,

App. 915, 921. Suess testified that in the summer 2002, during the period BCORP was

repairing her unit and she was living in temporary housing, the air conditioning failed and

it was very hot. See id.




                                              7
                                              II.

       The two Policies at issue here covered the periods from January 31, 2001 to January

31, 2002, and from January 31, 2002 to January 31, 2003 (collectively, policy periods). The

Policies obligated Admiral to:

       pay those sums that the insured becomes legally obligated to pay as damages
       because of “bodily injury” . . . to which this insurance applies . . . .

                                            ****

       This insurance applies to “bodily injury” . . . only if: (1) [t]he “bodily injury”
       . . . [was] caused by an “occurrence[;]” and (2) [t]he “bodily injury” . . .
       occur[red] during the policy period.

See App. 981, 1034. The Policies defined “bodily injury” as “bodily injury, sickness or

disease sustained by a person, including death resulting from any of these at any time.” See

App. 990, 1043. The Policies defined “occurrence” as “an accident, including continuous

or repeated exposure to the same general harmful conditions.” See App. 992, 1045.

       In support of its motion for summary judgment, Admiral asserted, among other things,

that the state court jury did not award Homeowners damages for “bodily injury” because

Homeowners presented inadequate evidence of physical manifestations of their emotional

distress.2 See Nat’l Cas. Co. v. Great Sw. Ins., 833 P.2d 741, 746-47 (Colo. 1992) (holding

that the term “bodily injury,” as used in an insurance policy, did not encompass “claims for


       2
         At trial, the state court instructed the jury that in determining damages, it must
consider “[a]ny noneconomic losses or injuries which each individual plaintiff has had to
the present time or which each individual plaintiff will probably have in the future,
including: mental pain and suffering, inconvenience, emotional distress, and impairment
of the quality of life . . . .” See App. 629.

                                               8
purely nonphysical or emotional harm”). In response, Homeowners argued they directly

testified during trial to suffering “bodily injury,” i.e., sufficient physical manifestations of

emotional distress, during the policy periods. To buttress their position, Homeowners

submitted supplemental affidavits to the district court. The affidavits purported to “more

fully” describe Homeowners’ testimony at the state trial regarding the physical

manifestations of their emotional distress. See App. 1153-58.

       In its dispositive order, the district court first concluded that it could look beyond the

state court trial record and consider Homeowners’ affidavits in making its indemnification

determination. See BCORP Canterbury, 506 F. Supp. 2d at 428-29. Second, the district

court ruled that Homeowners’ citation to a 130-page excerpt of their trial testimony was a

“conclusory allegation,” which was insufficient, as a matter of law, to demonstrate a genuine

issue of material fact as to physical manifestations of emotional distress. See id. at 429-30.

Finally, the district court concluded that, based on “a combination” of Homeowners’ trial

testimony and their affidavits, Homeowners failed to establish a genuine issue of material

fact as to whether they had (1) suffered “bodily injury,” (2) during the policy periods. See

id. at 431-34. Because the court resolved the Homeowners’ claims based on their lack of

“bodily injury” during the policy periods, it declined to address whether Homeowners’

injuries were the result of an “occurrence” within the meaning of the Policies. Neither did

the court address Admiral’s argument that the Policies’ pre-existing damage exclusions

barred Homeowners’ indemnification claims.




                                               9
                                             III.

       We review de novo a district court’s grant of summary judgment, applying the same

legal standard as the district court under Fed. R. Civ. P. 56(c). See Yaffe Cos., Inc. v. Great

Am. Ins. Co., 499 F.3d 1182, 1184-85 (10th Cir. 2007). “We review a district court’s

evidentiary rulings at the summary judgment stage for abuse of discretion.” See Argo v.

Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006). While federal

law controls whether the district court properly granted summary judgment, Colorado

substantive law governs this case. See Clark v. State Farm Mut. Auto. Ins. Co., 319 F.3d

1234, 1240 (10th Cir. 2003) (federal court sitting in diversity must apply the substantive law

of the forum state). Our review of the district court’s determination of Colorado law is de

novo. Therein, we “apply the most recent statement of Colorado law by the Colorado

Supreme Court.” Blackhawk-Cent. City Sanitation Dist. v. Am. Guar. & Liab. Ins. Co., 214

F.3d 1183, 1188 (10th Cir. 2000); see also Woolard v. JLG Indus., Inc., 210 F.3d 1158, 1168

(10th Cir. 2000) (“A federal district court’s state-law determinations are entitled to no

deference and are reviewed de novo.”). “When the Colorado Supreme Court has not yet

addressed an issue, we seek to predict how that court would decide the question.”

Blackhawk-Cent. City Sanitation Dist., 214 F.3d at 1188. Intermediate state court decisions,

while not binding authority, may prove helpful in this endeavor. See Clark, 319 F.3d at

1240-41.




                                              10
                                             A.

       We first address whether the district court properly considered Homeowners’

affidavits in ruling on Admiral’s motion for summary judgment. Cyprus Amax Minerals Co.

v. Lexington Ins. Co., 74 P.3d 294, 299 (Colo. 2003) (en banc) (“We must begin by deciding

what a court may review in resolving whether an insured is entitled to indemnification of its

loss.”). As explained above, in reaching its summary judgment ruling, the district court

considered — over Admiral’s objection — the Homeowners’ supplemental affidavits.

Admiral argues this constituted error because the affidavits were not presented to the state

court jury and, thus, are irrelevant to whether the jury awarded Homeowners noneconomic

damages for “bodily injury.” Homeowners respond by noting that, under Colorado law,

extrinsic evidence may aid a trial court’s indemnity determination.3 Clearly, under certain

circumstances, a court may look beyond the underlying complaint and consider “extrinsic

evidence” in making an indemnity determination. Id. at 301-02. “[I]f a broad reading of the

complaint indicates that coverage may possibly attach, additional evidence supporting or

defeating the existence of coverage, including the factual record developed at trial and the

ultimate judgment, may be taken into account.” McGowan v. State Farm Fire & Cas. Co.,



       3
          Homeowners also argue that the district court could consider their affidavits
because they were not required to establish “bodily injury” to recover against BCORP in
state court. This argument is unavailing and misconstrues the nature of this matter. In
this indemnification suit, Homeowners stand in BCORP’s shoes as its assignees. BCORP
was not, as a party defendant, required to prove anything in state court. Whether
Admiral’s duty to indemnify extends to the liability actually imposed on BCORP in state
court is all that is at issue here.

                                             11
100 P.3d 521, 524 (Colo. Ct. App. 2004) (emphasis added) (citing Cyprus Amax Minerals

Co., 74 P.3d at 301). But what Homeowners fail to recognize is that, to be relevant to the

indemnity question, the extrinsic evidence may only clarify or explain the evidence presented

to the state court jury.4

       Under Colorado law, “the duty to indemnify relates to the insurer’s duty to satisfy a

judgment entered against the insured” and “arises only when the policy actually covers the

alleged harm” that formed the basis for the judgment entered. Cyprus Amax Minerals Co.,

74 P.3d at 299, 301. The standard to determine if extrinsic evidence is admissible is

therefore whether the evidence clarifies whether the judgment — “the actual liability

imposed” — falls within the policy’s coverage. Id. at 299. Extrinsic evidence is only

relevant in this determination to the extent that it “assist[s] the trial court in determining

whether and to what extent actual liability, as represented by a verdict or settlement, is

covered by an existing policy.” Id. at 301-02. An indemnity dispute is not an opportunity

for plaintiffs to “retry the[ir] tort case.” See Bohrer v. Church Mut. Ins. Co., 965 P.2d 1258,

1267 & n.9 (Colo. 1998) (en banc). Yet, by entertaining Homeowners’ affidavits, which

purported to “more fully” describe Homeowners’ testimony at the state trial, see App. 1153-

58, the district court effectively allowed Homeowners just such an opportunity. Cyprus


       4
         In Cyprus Amax Minerals Co. the insured’s indemnity claim against the insurer
arose out of a settlement between a claimant and the insured. See Cyprus Amax Minerals
Co., 74 P.2d at 297. Unlike the instant matter, a factual record arising out of an
underlying trial and judgment was conspicuously absent in that case. As the court in that
case recognized: “Where the claims do not proceed through the crucible of trial, and
instead are settled by the parties, the analysis becomes more difficult.” Id. at 301.

                                              12
Amax Minerals Co., 74 P.3d at 300-02. In so doing, the district court contravened Colorado

law. See Argo, 452 F.3d at 1199. We therefore must consider Admiral’s summary judgment

motion absent Homeowners’ affidavits.

                                            B.

       The district court concluded that Homeowners’ summary judgment response failed

to demonstrate a genuine issue of material fact regarding whether they testified at trial to

suffering “bodily injury” as a result of BCORP’s defective soundproofing. Admiral’s

summary judgment motion averred, in its “Statement of Undisputed Material Facts,” that

Homeowners had not testified to suffering any “bodily injury.” See App. 570-572. In

Homeowners’ response, under the heading “Response to [Admiral’s] Statement of

Undisputed Material Facts,” Homeowners denied Admiral’s factual allegation, by citing

generally to 130 pages of their direct trial testimony. See App. 1102-04. Deeming

Homeowners’ denial a “conclusory allegation,” the district court ruled that Homeowners’

direct testimony could not, as a matter of law, forestall Admiral’s summary judgment motion.

See BCORP Canterbury, 506 F. Supp. 2d at 430 & n.5. On appeal, Homeowners insist their

summary judgment response provided specific record citations and, thus, the district court

erred in disregarding their trial testimony. See App. 1110-14. We agree.

       Contrary to the district court’s assertion that Homeowners “baldly insist[ed]” they

each testified to “bodily injury” without proper evidentiary support, see BCORP Canterbury,

506 F. Supp. 2d at 430, Homeowners’ response included pinpoint record citations. After


                                            13
responding to Admiral’s “undisputed” material facts, the next section of Homeowners’ brief

set forth — under the heading “Additional Statement of Undisputed Facts” — their own

“undisputed” material facts. Therein, Homeowners summarized portions of their respective

trial testimony pertinent to the “bodily injury” analysis, and provided record citations thereto.

See App. at 1110-12. To be sure, general citations to vast portions of a voluminous record

are likely to constitute “conclusory allegations,” which “do not establish an issue of fact

under Rule 56.” See Bruner v. Baker, 506 F.3d 1021, 1025 (10th Cir. 2007). But Fed. R.

Civ. P. 56(c) does not insist that a party set forth their factual allegations in a particular

section of a brief. Parties may reasonably expect the district court to read their motion

papers, provided they otherwise comport with local rules, in their entirety. Accordingly, we

conclude the district court abused its discretion in finding Homeowners only supported their

position regarding “bodily injury” with conclusory allegations. See Argo, 452 F.3d at 1199.

                                               C.

       What remains is the seminal question of whether a genuine issue of material fact

exists regarding Admiral’s duty, under the terms of the Policies, to indemnify Homeowners,

as BCORP’s assignees. Yet we are loath to answer this question in the first instance given

the district court’s improper view of the record and the unsettled state of Colorado law. In

reaching the merits, the district court purported to assess whether “a combination of

[Homeowners’] trial testimony and extrinsic evidence in the form of affidavits” established

a genuine issue of material fact on the issue of “bodily injury.” BCORP Canterbury, 506 F.



                                               14
Supp. 2d at 430. But, as we explained, the district court (1) improperly considered

Homeowners’ affidavits, and (2) likely failed to consider the state trial court record in its

entirety.

       As an example of the latter, the district court did not cite the trial transcript in

summarily concluding that Homeowners failed to establish their injuries occurred during the

policy periods. See, e.g., id. at 433 (“As with the other Homeowners, Ms. Eytcheson’s

allegations are insufficient to establish a genuine issue of material fact that she suffered

‘bodily injury’ during the effective period of the Policies.”). Yet the first Policy became

effective on January 31, 2001 and the second on January 31, 2002. Coverage ended a year

later. In its opening brief, Admiral acknowledges that the condominium association, of

which Homeowners were members, formed a committee to complain of the noise problem

in August 2001, during the effective policy periods. See Appellee’s Br. at 3. Admiral further

acknowledges that BCORP attempted to remedy the noise problem in 2002 at a time when

Homeowner occupied their dwellings. See id. One might reasonably infer that Homeowners

suffered injury during the policy periods. See Hinds v. Sprint/United Mgmt. Co., 523 F.3d

1187, 1195 (10th Cir. 2008) (explaining that under Rule 56(c), we view the facts and

reasonable inferences to be drawn therefrom in favor of non-movant). The district court’s

cursory treatment of the policy periods issue troubles us given the fact-driven nature of

indemnification claims. See Cyprus Amax Minerals Co., 74 P.3d at 301 (“[W]hether

[indemnification] coverage is ultimately required is a question of fact.”).



                                             15
       We are also hesitant to reach the merits in the first instance because this case appears

to present a novel issue of Colorado law regarding Homeowners’ claim of “bodily injury.”

Under Colorado law, emotional distress may constitute “bodily injury.” Nat’l Cas. Co., 833

P.2d at 746. Recovery for “bodily injury” arising from emotional distress, however, is

limited. Namely, in Colorado an insured must establish “physical manifestations” of their

emotional distress. Id. But, aside from clarifying that claims for “purely nonphysical or

emotional harm” do not trigger “bodily injury” coverage, the Colorado Supreme Court has

not spoken to what is required to meet the “physical manifestation” requirement. Id.

(emphasis added).

       The facts of this case fall in between existing Colorado precedents. In National

Casualty Company — the only Colorado Supreme Court decision to date to address this issue

— the plaintiff “did not allege any physical injury, physical contact, or pain.” Id at 747. In

contrast, Homeowners each testified that BCORP’s defective soundproofing caused them a

variety of physical ailments. Less clear is whether Homeowners’ ailments are comparable

to the “chronic,” “long-continued,” or “repeated” “nausea, headaches, hysterical attacks, or

mental aberrations” the Colorado Court of Appeals has deemed sufficient to recover under

Colorado law. See Parr v. Triple L&J, Corp., 107 P.3d 1104, 1108 (Colo. Ct. App. 2004);

Colwell v. Mentzer Invs., Inc., 973 P.2d 631, 638 (Colo. Ct. App. 1998). Notably, however,

the state appellate court has determined that a triable issue existed where a plaintiff testified

that her emotional distress was accompanied by “nausea” and “ongoing nightmares.” State

Farm Fire & Cas. Co. v. Nikitow, 924 P.2d 1084, 1089 (Colo. Ct. App. 1995).

                                               16
       In Nikitow, the state appellate court held a genuine issue of material fact remained in

a case involving an insurance dispute over whether a chiropractor’s “bodily injury” policy

covered a claim for emotional distress. Id. The plaintiff was rendered quadriplegic when an

undiagnosed spinal tumor ruptured during a chiropractic treatment. Id. at 1086. After the

injury, the defendant sent the plaintiff a marketing letter urging her to “return to his office

for chiropractic care.” Id. at 1088. The plaintiff sued the defendant chiropractor for

malpractice and other negligence, including emotional distress related to the marketing letter.

After the case was set for trial, the parties settled. The chiropractor’s insurance carrier

subsequently filed a declaratory judgment action, denying it owed coverage. Ultimately, the

appellate court reversed entry of summary judgment in the insurer’s favor. Id. at 1088-89.

According to the court, the plaintiff’s testimony that she had experienced “physical

discomfort associated with nausea that resulted from receipt of the letter and also testified

to ongoing nightmares that in effect produced physical discomfort” created a genuine issue

of material fact concerning whether the claim amounted to one for “bodily injury.” Id. at

1089 (emphasis added).

       Whether the nature and severity of Homeowners’ complaints are sufficient to

constitute physical manifestations of emotional distress under Colorado law is a close

question. See, e.g., Parr, 107 P.3d at 1108; see also Johnson v. Overright Trucking, Inc., No.

A-04-CV-1070-PSF/PA, 2005 WL 1719738, at *3 (D. Colo. July 21, 2005) (applying

Colorado law) (triable issue existed regarding emotional distress where plaintiffs alleged

“defendants’ actions caused them emotional distress resulting in insomnia, weight gain, and

                                              17
muscle twitches”). Given the uncertain state of Colorado law, Homeowners’ claims might

be sufficient to render summary judgment inappropriate on the question of whether they

suffered “bodily injury” within the meaning of the Policies.

       We believe a remand is the proper course of action so the district court might consider

the question of “bodily injury” anew based on a proper review of the state trial court record

(absent Homeowners’ supplemental affidavits), in light of existing Colorado law. If

appropriate, the district court is free to consider certifying this matter to the Colorado

Supreme Court for guidance. See Colo. App. R. 21.1. At the same time, nothing in our

decision is intended to proscribe any other argument the parties might wish to raise in

support of their respective positions, including those related to the Policies’ definition of

“occurrence” and the pre-existing damages exclusion.

       VACATED and REMANDED.

                                                         Entered for the Court

                                                         Bobby R. Baldock
                                                         Circuit Judge




                                             18
