                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         APR 13 1999
                          FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    THE SHARPER EDGE, INC., a
    Colorado corporation,

             Plaintiff-Appellant,
                                                       No. 98-1143
    and                                            (D.C. No. 96-B-1216)
                                                         (D. Colo.)
    GARY COGSWELL,

             Plaintiff,

    v.

    CONTINENTAL INSURANCE
    COMPANY,

             Defendant-Appellee,

    and

    HORIZON AGENCY, INC.,

             Defendant.




                          ORDER AND JUDGMENT            *




*
      This order and judgment is not binding precedent, except under the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.
Before BRORBY , EBEL , and LUCERO , Circuit Judges.




       After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       In this diversity action, the Sharper Edge, Inc., appeals the district court’s

summary judgment dismissal of its breach of insurance contract claim against

defendant, Continental Insurance Co. “We review the grant of summary judgment

de novo, and apply the same legal standard used by the district court under [Fed.

R. Civ. P.] 56(c).”   Richmond v. ONEOK, Inc. , 120 F.3d 205, 208 (10th Cir.

1997). “Summary judgment is appropriate if ‘there is no genuine issue as to any

material fact and . . . the moving party is entitled to a judgment as a matter of

law.’” Id. (quoting Rule 56(c)). We construe the factual record and the

inferences reasonably drawn from the facts in the light most favorable to the party

opposing summary judgment.      See id . We have jurisdiction under 28 U.S.C.

§ 1291 and we affirm.   1




1
      This court originally noted that the appealed judgment was not final
because claims against Horizon Agency, Inc. remained unadjudicated. The appeal
                                                                    (continued...)

                                          -2-
       Sharper Edge owned a business and leased space in a building known as

2000 Ski Time Square. It purchased general commercial liability insurance from

Continental. The policy covered buildings and “Business Personal Property

located in or on buildings at premises described in the Declarations. . . .”

Appellant’s Appendix at 13. The declarations page lists the covered buildings

and premises as “2000 Ski Time Square, Steamboat Springs, CO.”        See id. at 10.

The coverage for business personal property loss was limited to $25,000.

       The policy also included a provision entitled “Newly Acquired or

Constructed Property,” which stated the policy would cover the loss of business

personal property “at any location[ y]ou acquire.”   Id. at 22. The policy limit on

inventory losses at newly acquired locations was $500,000.

       Sharper Edge leased some additional space in 2000 Ski Time Square and

stored $100,000 in inventory in this space. Sharper Edge refers to its original

lease space at 2000 Ski Time Square as “Unit A” and its newly leased space as

“Unit B.” Shortly after Sharper Edge leased Unit B, a fire damaged much of the

inventory and building at 2000 Ski Time Square. Continental covered the loss,



1
 (...continued)
ripened after the district court entered a certification order under Fed. R. Civ. P.
54(b), and this court now has jurisdiction to hear this appeal.   See Lewis v. B.F.
Goodrich Co. , 850 F.2d 641, 645-46 (10th Cir. 1988).



                                           -3-
paying the policy limit of $25,000 for all of the inventory stored at Unit A and

Unit B at 2000 Ski Time Square. Because Unit B was newly leased, Sharper Edge

argued it was newly acquired property and that the inventory stored there should

have been covered up to the $500,000 limit for newly acquired property.

Continental disagreed, contending that Unit B was still located at 2000 Ski Time

Square, and was not newly acquired property because it was within the policy’s

definition of the covered premises.

       Sharper Edge brought both a bad faith insurance tort claim and a breach of

contract claim. The district court initially denied Sharper’s Edge’s motion for

summary judgment on its breach of contract claim, concluding that “the parties’

failure to specify the meaning of crucial terms in this insurance contract results in

an ambiguity subject to clarification through [extrinsic] evidence . . . .”   Id. at 71.

Sharper Edge then converted its claim to a pure breach of contract claim. The

district court ordered supplemental summary judgment briefing and ultimately

granted summary judgment in favor of Continental on the breach of contract

claim. The district court stated that when it initially denied Sharper Edge’s

motion for summary judgment, the record had not contained the relevant pages of

the insurance contract and that the parties had not adequately briefed all of the

issues on the breach of contract claim.      See id . at 117-18.




                                              -4-
      The district court held that the insurance contract unambiguously defined

the covered premises as 2000 Ski Time Square and, thus, the coverage for all

losses at this location, including the inventory stored at Unit B, was limited to

$25,000. The district court concluded the insurance contract extended additional

coverage only to newly acquired locations, meaning some location other than

2000 Ski Time Square, and not to additional space leased within this building.

      On appeal, Sharper Edge contends the district court erred in reversing

itself, initially finding the insurance policy language ambiguous, and then

deciding that very same language was not ambiguous. We find no error in the

district court’s reconsideration of its initial ruling in light of a more complete

record. The grant of summary judgment is not improper merely because an earlier

motion for summary judgment, which raised the same issues, had been denied.

See Lindsey v. Dayton-Hudson Corp.     , 592 F.2d 1118, 1121 (10th Cir. 1979)

(holding that second motion for summary judgment is permissible after previous

motion dismissed if supported by new material, stating that “[u]ntil final decree

the court always retains jurisdiction to modify or rescind a prior interlocutory

order.”).

      Sharper Edge also asserts the district court erred in finding the contract

unambiguous, arguing it applied a strained interpretation of the insurance policy




                                          -5-
language. It asserts the policy is ambiguous and, under Colorado law, ambiguous

insurance policy language is to be construed in favor of coverage.

      We have carefully reviewed the parties’ pleadings and briefs, the record on

appeal, and the district court’s decision, and considered them in light of the

applicable law. Reading the insurance contract in its entirety and giving effect to

all of its provisions, we agree with the district court’s conclusion that the policy

is plain and unambiguous and that, under its terms, any property located at 2000

Ski Time Square, including Unit B, is not at a newly acquired location. The

district court issued a thorough and well-reasoned order granting summary

judgment to Continental and we cannot better articulate the facts, applicable law,

or reasoning for granting the summary judgment. We thereby AFFIRM the

district court’s March 16, 1998 order for substantially the same reasons stated

therein and attach a copy hereto.



                                                     Entered for the Court



                                                     Wade Brorby
                                                     Circuit Judge




                                          -6-
Attachment not available electronically.
