                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                       January 23, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
TRAVELERS INDEMNITY
COMPANY,

             Plaintiff-Appellee,

v.                                                         No. 12-1180
                                              (D.C. No. 1:10-CV-02160-MSK-CBS)
BOARD OF COUNTY                                             (D. Colo.)
COMMISSIONERS FOR LARIMER
COUNTY,

             Defendant-Appellant.


                            ORDER AND JUDGMENT*


Before KELLY, O’BRIEN, and MATHESON, Circuit Judges.


      In December 2006, snowstorms damaged several buildings in the Larimer

County, Colorado, Fairgrounds. As is relevant here, the Board of County

Commissioners for Larimer County (Larimer County) submitted a claim under its

property insurance policy (the Policy) issued by Travelers Indemnity Company


*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
(Travelers) for damage to the roofs of several of the Fairground buildings. Larimer

County, in its 2009 amendment to its already amended claim, asserted “widespread

damage to the roof structures . . . as evidenced by the buckling and rolling of the

purlins . . . caused by the weight of built up snow and ice.” Aplt. App. at 353.1

Travelers investigated Larimer County’s latest amendment and concluded the loss

was not covered because the damage claimed (displaced purlins) was caused by

design and construction defects and was therefore excluded from coverage. This

lawsuit followed.

      Travelers’ suit seeks a judicial declaration relieving it of the repair costs for

the displaced purlins. Larimer County responded with counterclaims, alleging breach

of the Policy for failing to pay benefits, bad faith, and violation of Colorado’s

Consumer Protection Act. The parties filed cross-motions for summary judgment.

      The district court entered a summary judgment in favor of Travelers on its

claim for a declaratory judgment and on Larimer County’s counterclaims based upon

the operative Policy language. The Policy requires Travelers to “‘pay for direct

physical loss or damage’ to the property if that damage is ‘caused by or resulting

from a Covered Cause of Loss.’” Travelers Indem. Co. v. Bd. of Cnty. Commn’rs ex

rel. Larimer Cnty., No. 10-cv-02160-MSK-CBS, 2012 WL 1059976, at *3 (D. Colo.


1
       A purlin is “[a] horizontal beam which runs along the length of a roof, resting
upon the principal rafters at right angles and supporting the ordinary rafters or boards
to the roof.” Oxford English Dictionary, http://www.oed.com (last visited
Jan. 22, 2013).


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Mar. 29, 2012) (quoting Aplt. App. at 391 (the Policy)). “‘Covered Cause of Loss’”

is defined as “‘risks of direct physical loss unless that loss is excluded’ by other

provisions in the policy.” Id. (quoting Aplt. App. at 391 (the Policy)). This

language, the court explained, “effectively provides that Travelers will pay for

physical loss or damage to covered property resulting from any cause, except losses

or damage resulting from causes falling within a specific policy exclusion.”

Travelers Indem. Co., 2012 WL 1059976, at *3. Accordingly, the court next turned

to the Policy’s defective construction exclusion (relied upon by Travelers), noting an

applicable exception. See id. Specifically, “‘in the event that an excluded cause of

loss [e.g., defective construction,] . . . results in a Covered Cause of Loss, the

Company will be liable only for such resulting loss or damage.’” Id. (quoting Aplt.

App. at 402 (the Policy)).

      The court then observed that “the exception language form[ed] the core of . . .

Larimer County’s argument that that the damage is covered by the policy.” Travelers

Indem. Co., 2012 WL 1059976, at *3. “Larimer County contends that even if [the]

construction was defective, the weight of snow on the roofs constituted a separate

‘Covered Cause of Loss’ that brings the claim within policy coverage.” Id. The

court rejected Larimer County’s argument.

      The critical language provides that where “an excluded cause of loss”—
      here, defective construction—“results in a Covered Cause of Loss,” any
      “resulting loss” is covered. In other words, although a construction
      defect, itself, is not covered by the policy, if the defect causes (i.e.
      “results in”) a “Covered Cause of Loss,” and that “Covered Cause” in
      turn results in property damage, the resulting property loss is covered.

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      . . . [T]he exception provides for coverage only when the excluded
      cause—defective design—becomes a new causal agent that itself causes
      resultant property damage.

Id. at *4. Thus, among other things, the court opined:

              In the circumstances here, the defective construction of the roof
      may have acted as a causal agent (coupled with a second causal agent,
      the snow loading) to damage the purlins, but the purlins themselves
      have not become a “Covered Cause of Loss” that has resulted in
      additional property damage. Put differently, the damage to the purlins
      is the loss claimed by Larimer County, not the cause of some other
      losses or property damage. Had a displaced purlin, for example, fallen
      and damaged . . . the floor of the building, the policy would cover
      damage to the floor. But where, as here, the claimed damage is the
      displacement of the purlins itself, the unambiguous language of the
      exclusion precludes coverage.

Id.; see also id. at *4 & n.5 (discussing RK Mech., Inc. v. Travelers Prop. Cas. Co. of

Am., No. 10-cv-02306-WJM-KMT, 2011 WL 3294921 (D. Colo. Aug. 1, 2011), “a

case involving effectively identical policy language,” and concluding that it

“supports the Court’s conclusion, not Larimer County’s position”).

      In this appeal Larimer County claims, as it did in the trial court, Travelers is

obligated under the Policy to cover the repair costs for the displaced purlins. More

particularly, it charges the district court with error: (1) in concluding the weight of

the snow and ice causing physical damage to the buildings was not a covered cause

of loss; (2) in failing to recognize a stipulation by the parties that damage to covered

buildings resulted from the weight of snow and ice; (3) by rewriting the Policy to

reach a result of no coverage; (4) in failing to correctly apply an exception to an




                                          -4-
exclusion for construction defects; and (5) in failing to properly apply Colorado’s

efficient proximate cause rule.

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

the same legal standard as the district court.” Constitution Party of Kan. v. Kobach,

695 F.3d 1140, 1144 (10th Cir. 2012) (internal quotation marks omitted). “Cross

motions for summary judgment are treated separately; the denial of one does not

require the grant of another.” Id. (internal quotation marks omitted). “The court

shall grant summary judgment if the movant shows that 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). “In determining whether the moving party is entitled to

judgment as a matter of law based on the record, we view the evidence and draw

reasonable inferences therefrom in the light most favorable to the nonmovant.”

Kobach, 695 F.3d at 1144 (internal quotation marks omitted).

      Because this case arises in diversity, “we review the district court’s

determination of state law de novo.” Butler v. Union Pac. R.R., 68 F.3d 378, 379

(10th Cir. 1995). “Under Colorado law, insurance policies are interpreted

consistently with the well-established principles of contractual interpretation.”

Leprino Foods Co. v. Factory Mut. Ins. Co., 653 F.3d 1121, 1127 (10th Cir. 2011)

(internal quotation marks omitted).

      In order to avoid policy coverage, an insurance policy must establish
      that the exemption claimed applies in the particular case, and that the
      exclusions are not subject to any other reasonable interpretations.
      Absent an indication the parties intended otherwise, the instrument’s

                                          -5-
      language must be examined and construed in harmony with the plain
      and generally accepted meaning of the words used.

Id. (citation and internal quotation marks omitted).

      The parties are familiar with the facts and procedural history of this case and

we need not restate either here. Our thorough review of the briefs, the record, and

the applicable law, reveals no reversible error. Accordingly, we affirm the summary

judgment for substantially the same reasons detailed in the district court’s thorough

opinion and order.



                                               Entered for the Court


                                               Terrence L. O’Brien
                                               Circuit Judge




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