                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         JUN 11 2002
                                 TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 FARMINGTON CASUALTY
 COMPANY,

               Plaintiff - Appellant/
               Cross - Appellee,                  Nos. 00-1524 & 00-1534
                                                   (D. C. No. 99-D-213)
          v.                                           (D. Colorado)

 UNITED EDUCATORS INSURANCE
 RISK RETENTION GROUP, INC.,

               Defendant - Appellee/
               Cross - Appellant


                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, ANDERSON and MURPHY, Circuit
Judges.


      Plaintiff Farmington Casualty Company (“Farmington”) and Defendant

United Educators Insurance Risk Retention Group, Inc. (“UE”) both insured the

University of Denver (“DU”). Dr. Shiela Deitz sued DU when it denied her

tenure and ultimately fired her. Plaintiff Farmington paid the defense costs from



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
Deitz’s lawsuit, and brought suit against UE seeking contribution toward those

costs. The district court required UE to reimburse Farmington $50,000 out of

over $1 million in total defense costs. Farmington appeals, and UE cross-appeals.

We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.

                                   I. Background

      The University of Denver carried two liability insurance policies – a

primary insurance policy with Farmington and an excess insurance policy with

UE. Farmington’s policy covered:

      [T]hose sums that the insured becomes legally obligated to pay as
      damages because of ‘personal injury’ . . . to which this coverage part
      applies. We will have the right and duty to defend any suit seeking
      those damages. . . . If there is another primary insurer, the obligation
      will be shared equally, or pro-rata by limits.

The policy defined “personal injury” to include “[o]ral or written publication of

material that slanders or libels a person or organization or disparages a person’s

or organization’s goods, products or services; or [o]ral or written publication of

material that violates a person’s right of privacy.”

      United Educators issued an insurance policy to DU which covered a

broader range of claims, but was excess rather than primary insurance. It stated,

in relevant part:

      [This policy’s coverage includes claims based on] discrimination . . .
      sexual harassment . . . wrongful employment practices . . . oral or
      written publication of material that slanders or libels a person . . .
      failure to grant due process [and others].

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      ....
              It shall be the duties of the Individual Insureds and/or Included
      Entities and not the duty of the Company to defend Claims made
      against the Insureds; provided that no costs shall be incurred without
      the Company’s consent, such consent not to be unreasonably
      withheld.
      ....
              If other valid and collectable insurance with any other insurer .
      . . is available to the Insureds covering a Loss covered by this Policy,
      other than insurance which is expressly and specifically in excess of
      this Policy, the insurance afforded by this Policy shall be in excess of
      and shall not contribute with such other insurance.


The UE policy further stated that it “shall be governed and construed in accord

with the internal laws of the State of New York.”

      On October 31, 1995, Professor Sheila Deitz filed a lawsuit in the United

States District Court for the District of Colorado against DU and several

individual defendants (“Deitz I”). She brought several claims, including

defamation, violations of the Rehabilitation Act of 1973 and the Americans with

Disabilities Act (“ADA”), wrongful termination, civil rights violations, breach of

contract, estoppel, and breach of implied covenant of good faith.

      Deitz filed a second lawsuit against DU in the Denver District Court on

April 18, 1997 (“Deitz II”), asserting claims for breach of contract, estoppel,

retaliation, violation of the ADA, tortious interference with employment relations,

and tortious interference with prospective economic advantage.

      When it received notice of Deitz I, Farmington acknowledged its duty to


                                         -3-
defend DU because of the presence of defamation-type claims, and retained

counsel on behalf of DU. United Educators approved DU’s retention of its own

separate counsel to monitor the defense counsel provided by Farmington. After

Deitz II was filed, both Farmington’s and DU’s attorneys agreed that the case

should be removed to federal court and consolidated with the first case. On June

6, 1997, a magistrate judge granted the motion for consolidation under Federal

Rule of Civil Procedure 42(a). The magistrate judge stated that the new claims

could have, and probably should have, been brought as amendments to the

original case, and that Deitz II should not be treated as an independent case for

discovery. Farmington agreed to continue defending the consolidated case, but

denied coverage for the Deitz II portion, which did not contain any defamation

claims.

      In the Final Pretrial Order entered July 1, 1998, the magistrate judge

granted a motion by Deitz to withdraw her remaining claims for injurious

falsehood and defamation. Farmington continued to defend DU, however,

because it did not realize that Deitz had no remaining defamation claims. At a

hearing on November 16, 1999, Farmington mistakenly informed the trial court

that a defamation claim remained against Buirski.

      In a demand letter dated July 30, 1998, Farmington requested that UE

reimburse it for ninety percent of the defense costs, asserting that each insurer


                                        -4-
should pay defense costs in proportion to the number of claims covered by each

insurer’s policies. UE refused, noting that its policy was excess to other available

insurance.

      On February 2, 1999, Farmington invoked diversity jurisdiction and filed

suit in federal district court demanding contribution from UE. Both parties

moved for summary judgment. The district court divided the trial into two phases

– a liability phase and a damages phase. In its liability ruling on December 2,

1999, the court applied New York law to construe the policy, but applied

Colorado law for the underlying claims. The court concluded that Farmington, as

the primary insurer, was not entitled to contribution or subrogation from UE for

defense costs related to Deitz I. The court found, however, that Farmington was

entitled to reimbursement of defense costs attributable only to Deitz II.

      In the course of discovery, Farmington obtained claims notes from UE’s

adjuster. A note dated January 25, 1999 stated, “On another front, appears

[Deitz] dropped her defam[ation] counts, which will eliminate [Farmington] from

the case. Not clear why they are still offering up to $50k to settle . . . .”

According to Farmington, its discovery of this note was the first time it realized

that the last defamation claims in Deitz I had been abandoned. When it

discovered this evidence, Farmington filed a Motion for Leave to File an

Appended Supplemental Statement. Farmington sought to argue in its


                                         -5-
supplemental statement that it should be reimbursed for all of the defense costs it

incurred in Deitz I after the abandonment of the defamation claims. The district

court denied Farmington’s motion as untimely.

       During the cost allocation phase of the trial, the parties stipulated that,

according to the district court’s liability formula, UE owed Farmington $50,000

related to the Deitz II portion of the lawsuits.

                                       II. Discussion

       Farmington now appeals: the denial of its motion to file a supplemental

statement; the choice of Colorado law; and the finding that UE was not liable for

any of the costs of Deitz I. UE cross-appeals its liability for the Deitz II costs.

       We review the grant or denial of summary judgment de novo, applying the

same standard as the district court.    Wark v. United States , 269 F.3d 1185, 1187

(10th Cir. 2001). Summary judgment is appropriate when there is no genuine

issue of material fact, viewing the evidence in the light most favorable to the

nonmoving party.     Id.

A. Motion to File Supplemental Statement

       Farmington argues that it should have been allowed to file a supplemental

statement regarding Deitz’s abandonment of her defamation claims. It argues that

this abandonment ended Farmington’s duty to defend and increased the amount

UE should contribute. The district court denied Farmington’s motion as untimely.


                                            -6-
A district court’s evidentiary decisions relevant to a summary judgment ruling are

reviewed for an abuse of discretion.   Wright-Simmons v. City of Oklahoma City       ,

155 F.3d 1264, 1268 (10th Cir. 1998). The trial court does not abuse its

discretion unless its decision is “arbitrary, capricious, whimsical, or manifestly

unreasonable.”    United States v. Hernandez-Herrera   , 952 F.2d 342, 343 (10th Cir.

1991).

         Farmington made its motion to file a supplemental statement seventeen

months after the pre-trial order withdrawing Deitz’s defamation claim was

entered. The district court had already heard oral arguments on the liability

phase of Farmington’s case, and issued its written opinion the same day

Farmington filed its motion. While Farmington asserts that it did not realize that

Deitz had dropped all of her defamation claims until immediately before it filed

its motion, it should have learned this from the publicly filed July 1, 1998 order.

Under such circumstances, we cannot say that the district court’s denial of the

motion as untimely was arbitrary, capricious, whimsical, or manifestly

unreasonable.    Cf. Viernow v. Euripides Dev. Corp.   , 157 F.3d 785, 800 (10th Cir.

1998) (finding no abuse of discretion in the denial as untimely of a motion to

amend a complaint, where the motion was made 19 months after the original

complaint was filed and after the judge had orally ruled on the matter on summary

judgment); Singer v. Wadman , 745 F.2d 606, 608 (10th Cir. 1984) (finding no


                                          -7-
abuse of discretion in the denial as untimely of a motion to recuse that was filed

one year after the complaint was filed). Because we find no abuse of discretion in

the district court’s denial of Farmington’s motion, we need not consider

Farmington’s arguments premised on Deitz’s abandonment of her defamation

claims.

B.     The Choice of Law Provision

       Farmington next argues that the district court erred in applying Colorado

law instead of New York law to its claims against UE. The UE policy’s choice of

law clause states that the policy “shall be governed and construed in accord with

the internal laws of the State of New York.” The parties agree that the policy

itself must be construed under New York law, but they disagree about which law

applies to the related contribution claim.

       A federal court sitting in diversity must apply the choice of law rules of the

forum in which it sits.    Stuart v. Colo. Interstate Gas Co.   , 271 F.3d 1221, 1225

(10th Cir. 2001) (citing   Klaxon v. Stentor Electric Mfg. Co.     , 313 U.S. 487, 496-

97 (1941)). Colorado has adopted the Restatement (Second) of Conflict of Laws

for choice of law issues in contract actions.      Wood Bros. Homes, Inc. v. Walker

Adjustment Bureau , 601 P.2d 1369, 1372 (Colo. 1979).

       Farmington argues that New York law applies to all of the claims at issue,

relying on subsection 187(2) of the Restatement (Second) of Conflict of Laws,


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which states: “The law of the state chosen by the parties to govern their

contractual rights and duties will be applied [unless an enumerated exception

applies].” While the contract between Farmington and DU specified that New

York law would apply, UE was not a party to that contract. New York law

therefore cannot be considered the law of the state chosen     by the parties .

         Absent an effective choice of law by the parties, the Restatement’s

approach is to locate the state having the “most significant relationship” to the

particular issue.   TPLC, Inc. v. United Nat’l Ins. Co.   , 44 F.3d 1484, 1490 (10th

Cir. 1995). Restatement § 188(3) states that, absent effective choice by the

parties, “ [i]f the place of negotiating the contract and the place of performance

are in the same state, the local law of this state will usually be applied.” Here,

the contract was made and performed in Colorado. We therefore apply Colorado

law. 1

C.       Deitz I

         Farmington argues that the defense costs for Deitz I should be apportioned

by claim or pro rata between it and UE because most claims brought by Deitz

were covered by UE’s policy but not Farmington’s. This argument is contradicted

by the language of Farmington’s policy, however, as it offers primary insurance




      Section 188(3) allows for the exceptions found in sections 189-199 and
         1

203. This case does not fall under any of those exceptions.

                                            -9-
that covers “suits,” rather than individual claims. It states that Farmington has a

“duty to defend any suit seeking [covered] damages.” Moreover, Farmington’s

insurance policy is primary, providing: “This insurance is primary except when

[an inapplicable exception] applies. If this insurance is primary, our obligations

are not affected unless any of the other insurance is also primary.” UE’s

insurance policy is excess, not primary, stating that “[i]f other valid and

collectible insurance with any other insurer . . . is available to the Insureds

covering a Loss covered by this Policy, other than insurance which is expressly

and specifically in excess of this Policy, the insurance afforded by this Policy

shall be in excess of and shall not contribute with such other insurance.” For

Deitz I, Farmington’s insurance policy is primary, as it covers Deitz’s claim for

defamation, making UE’s insurance excess. We enforce the terms of the policies,

and under the terms of the policy Farmington is obligated as the primary insurer

to pay defense costs.   Colonial Ins. Co. of Cal. v. Am. Hardware Mut. Ins. Co.        ,

969 P.2d 796, 800 (Colo. App. 1998).

       Farmington contends that regardless of the policy provisions, UE has an

equitable duty to contribute to defense costs.      The district court rejected this

argument, finding that Colorado law does not support such an equitable theory of

contribution and that the cases cited by Farmington from other jurisdictions were

factually distinguishable. We generally review a district court’s rulings on


                                           - 10 -
equitable relief for an abuse of discretion, but we review such rulings de novo

when the availability of such equitable relief depends on an interpretation of the

law. Downriver Cmty. Fed. Credit Union v. Penn Square Bank          , 879 F.2d 754,

758 (10th Cir. 1989).

      Relying on cases from California and other jurisdictions outside of

Colorado, Farmington argues that allocation of defense costs between insurers is

not governed by contract because no contract relation exists between insurers.

E.g. , Signal Companies v. Harbour Ins. Co.    , 612 P.2d 889, 895 (Cal. 1980).

Instead, Farmington suggests allocation should be governed by “equitable

principles designed to accomplish ultimate justice.”     Id.

      Colorado courts have found, however, that the lack of contractual relations

between the parties does not prevent an excess insurer from seeking contribution

according to policy provisions.    Nat’l Cas. Co. v. Great Southwest Fire Ins. Co.       ,

833 P.2d 741, 747-48 (Colo. 1992) (en banc). Moreover, the only Colorado case

Farmington cites in support of its equity argument is a factually distinguishable

case, Millers’ Mutual Insurance Ass’n v. Iowa National Mutual Insurance Co.          ,

618 F. Supp. 301 (D. Colo. 1985). In     Millers’ , the court held that an excess

insurer could be required to contribute to defense costs. Unlike the present case,

however, the policy limits of the primary insurer were sure to be exhausted by the

judgments so that the excess insurance would come into effect.       Id. at 306. The


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other cases on which Farmington relies come from different jurisdictions, and are

also factually distinguishable from the present case, as the district court correctly

noted. We therefore find that the district court did not err in declining to grant

Farmington equitable relief.

D.    Deitz II

      United Educators cross-appeals the district court’s finding that it is liable

for Deitz II defense costs incurred after consolidation. The district court reasoned

that UE could not circumvent its clear duty under its policy to cover Deitz II costs

by the fortuitous event that its insured chose to remove the case to federal court

and had its consolidation motion granted.

      UE argues that after consolidation Farmington became the primary insurer

because Farmington’s policy requires it to defend any “suit” for covered claims,

and not just the individual claims. UE points out that the plaintiff and principal

defendant were the same in both actions, and the case had been consolidated by

the magistrate judge, who stated that it would not treat Deitz II as a new

independent case.

      The magistrate judge stated that Deitz could have amended her first suit

instead of filing a second one, and that the separate filing was likely an attempt to

gain a new round of discovery for issues raised by Deitz I and Deitz II. In

granting a motion for consolidation, but rejecting a request to treat Deitz II as a


                                         - 12 -
separate case for purposes of discovery, the magistrate judge stated: “I do not

agree that I should treat Deitz II as a new, independent case, and permit a new

round of discovery the same as if Deitz I never existed.” While the magistrate

judge considered Deitz I and II the same case in some respects, the context

suggests that the ruling was for discovery and procedural purposes, not for

purposes of determining the insurers’ contractual obligations.

       Lawsuits consolidated under Rule 42(a), like this one, can retain their

“separate identity.”      Patton v. Aerojet Ordnance Co.     , 765 F.2d 604, 606 (6th Cir.

1985). In a similar case,     Board of Trustees of Michigan State University v.

Continental Casualty Co. , 730 F. Supp. 1408 (W.D. Mich. 1990)            , an excess

insurer argued that three cases filed by the same plaintiff against different

defendants were so closely intertwined that the primary insurer had a duty to

defend all three suits.     Id. at 1413. The Board of Trustees court rejected this

argument, finding that the cases were distinguishable for the purposes of

allocating expenses, despite the fact that they were all assigned to the same judge

and only one set of discovery and depositions was taken for all three cases.            Id.

The court emphasized that only one of the complaints alleged defamation, which

was covered by the excess insurer’s policy.           Id. We similarly find that the

consolidated Deitz I and II cases retained their separate identities even after

consolidation, and are distinguishable for purposes of allocating costs.         We


                                             - 13 -
therefore agree with the district court that UE is liable for the $50,000 in defense

costs attributable solely to Deitz II.

                                    III. Conclusion

      The district court did not abuse its discretion in denying a motion to file a

supplemental statement. There was no genuine issue of material fact regarding

whether Colorado law applies or how the defense costs should be allocated

between the parties. We therefore AFFIRM the district court’s decision to grant

summary judgment. The motions by         both parties to seal portions of the record on

appeal are GRANTED.

                                          ENTERED FOR THE COURT,


                                          Deanell Reece Tacha
                                          Chief Circuit Judge




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