US General v. Guideone Mutual Insurance Company

Appellate Case: 22-1145 Document: 010110780343 Date Filed: 12/12/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 12, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
US GENERAL, LLC,
Plaintiff - Appellee,
v. No. 22-1145
(D.C. No. 1:18-CV-01256-REB-NRN)
GUIDEONE MUTUAL INSURANCE (D. Colo.)
COMPANY,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, TYMKOVICH, and MATHESON, Circuit Judges.
_________________________________
Defendant-Appellant GuideOne Mutual Insurance Company (“GuideOne”)
appeals following a jury verdict in favor of Plaintiff-Appellee US General, LLC (“US
General”). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
A. Factual History
The evidence presented at trial, stated in the light most favorable to the jury’s
verdict, Johnson v. Unified Government of Wyandotte County/Kansas City, Kansas,
*
This order and judgment is not binding precedent, except under the doctrines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.
Appellate Case: 22-1145 Document: 010110780343 Date Filed: 12/12/2022 Page: 2
371 F.3d 723, 728-29 (10th Cir. 2004), was as follows. In 2016, a hailstorm
damaged a building owned by Crossroads American Baptist Church (“Crossroads”)
and insured by GuideOne.
Crossroads submitted a claim to GuideOne for the hailstorm damage.
Crossroads hired US General as its general contractor to perform the repairs and later
assigned its interest in the insurance policy to US General.
GuideOne retained independent adjuster Jon Hayes to estimate the cost of
repairs, which he said was about $55,000.1 US General believed the repairs would
cost significantly more and commissioned its own estimate, which was at least
$190,000. GuideOne next asked an engineer to assess the nature and extent of
damage to the building. The engineer’s report identified significant areas of damage
beyond Mr. Hayes’s estimate.
Mr. Hayes then revised his estimate upward, but it still failed to include large
portions of the damage and did not allow for any overhead and profit for US General.
Throughout 2017, US General continued requesting payments for repairs not
included in Mr. Hayes’s estimate. GuideOne then commissioned a building
consultant, Jeff Arreguy, to provide a second opinion on the cost of repairs. In
November 2017, he found that the scope of the project was $369,000.
Throughout this time, GuideOne issued partial payments for certain areas of
damage, but the payments fell far short of the funds US General needed to complete
1
We use round numbers to refer to the sums in dispute.
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the repairs. This hindered US General’s ability to begin making the repairs because,
according to the testimony of its principal, all of the repairs “had to start
concurrently” and it is “more expensive to start and stop a project.” App., Vol. VIII
at 165. Thus, US General did not begin work on the building until early 2018.
According to testimony at trial, the repeated delays in payment caused significant
difficulties for US General in its relationship with the subcontractors hired to perform
some of the work. Id. at 170 (the delayed payments resulted in “a contentious period
of time”).
US General continued working through the spring of 2018 and encountered
additional expenses covered by the insurance policy. On April 4, 2018, US General
sent an invoice to GuideOne for $91,000. The same day, a GuideOne representative
said a “check [wa]s in the mail” for that amount. App., Vol. VIII at 169. The check
did not arrive. In July 2018, GuideOne issued a partial payment of $23,000. US
General did not receive full payment for the $91,000 invoice until October 4, 2018.
By that point, GuideOne had paid most of the money it owed under the
insurance policy. But one area remained in dispute. US General requested $70,000
for work it expected to perform on the building’s electrical systems and heating,
ventilation, and air conditioning (“HVAC”). GuideOne, however, refused to pay the
$70,000 for the electrical and HVAC systems.
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B. Procedural History
The Complaint and Pretrial Motion Practice
Crossroads brought this case against GuideOne in May 2018. It filed an
amended complaint on October 19, 2018, after US General had received the final
payment from GuideOne. The amended complaint asserted three claims:
(1) Breach of contract, based on GuideOne’s refusal to pay the $70,000
requested for electrical and HVAC work;
(2) Common law bad faith breach of insurance contract, based on GuideOne’s
alleged bad faith in refusing to pay the amount it owed under the policy;
and
(3) Unreasonable delay of payment under Colo. Rev. Stat. §§ 10-3-1115 and
10-3-1116.
In September 2019, Crossroads successfully moved to join US General to act as
Plaintiff.
In May 2019, GuideOne moved for summary judgment on all of US General’s
claims. In response, US General voluntarily dismissed its second claim for common
law bad faith breach of insurance contract. The district court denied summary
judgment as to the remaining claims, writing, “[i]t is apparent that there exist genuine
disputes as to material facts that are not appropriate for summary resolution.” App.,
Vol. IV at 169-70.
The Jury Trial
The case proceeded to a jury trial on US General’s remaining two claims—
breach of insurance contract and unreasonable delay of insurance benefits. GuideOne
did not file a motion for a judgment as a matter of law under Federal Rule of Civil
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Procedure 50(a) during the trial, either at the close of US General’s evidence or after
it presented its own evidence. App., Vol. IX at 59-61, 248-58.
The district court drafted jury instructions and a verdict form and circulated
them to the parties. GuideOne said it had “[n]o objection” to the instructions or
verdict form. App., Vol. X at 218.
The district court instructed the jury that it must find in favor of US General
on the unreasonable delay claim if it determined:
“1. That the defendant delayed and/or denied payment of
insurance benefits to the plaintiff; and
2. That the defendant’s delay and/or denial of payment
was without a reasonable basis.”
App., Vol. V at 227. The court then instructed the jury that if it found GuideOne
liable on the unreasonable delay claim, it must record on the verdict form “the total
dollar amount of the insurance benefits for which payment was delayed and/or denied
without a reasonable basis.” Id. at 231.
The verdict form required the jury (1) to indicate whether GuideOne was liable
on each of US General’s two claims, and (2) to state the amount of damages for each
claim on which it found liability. App., Vol. V at 199-203.
For US General’s breach-of-contract claim, the verdict form required the jury
to list the amount of “general damages” that US General had suffered due to
GuideOne’s breach. Id. at 200. If the jury found no general damages, it was
permitted to award nominal damages of one dollar.
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For the unreasonable delay claim, the verdict form required the jury to identify
the “total amount of insurance benefits, if any, [it] f[ound] by a preponderance of the
evidence were delayed or denied by GuideOne . . . without a reasonable basis.” Id.
at 202. The form also required the jury to assess damages on the unreasonable delay
claim separately for the time periods before and after May 23, 2018, the date the
original complaint was filed. Id.During deliberations, the jury sent the following written query to the district
court: “For questions 7 and 8 [on the verdict form]”—that is, the two questions
asking the jury to assess damages for the unreasonable delay claim for the periods
before and after the case was filed—“will the[] amounts get paid out to U.S. General
or are they just statements of facts[?]” Id. at 237. The court responded in writing
that “[a]ny damages you award in your answers to questions 7 and 8 on the Verdict
Form will be awarded to (‘paid out to’) the plaintiff, US General, LLC.” Id. at 238.
The jury returned a verdict in favor of US General on both claims. On the
breach-of-contract claim, the jury found that US General had not suffered any general
damages, but awarded $1 in nominal damages. On the unreasonable delay claim, the
jury found that GuideOne had unreasonably delayed payment of $155,700 in
insurance benefits before May 23, 2018, and $136,700 after that date. When the jury
verdict was announced, GuideOne did not object or argue that it was inconsistent.
App., Vol. IX at 289-90.
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Post-Trial Motions
GuideOne filed a motion to amend the judgment under Federal Rule of Civil
Procedure 59(e). It argued that (1) US General could obtain only $1 for unreasonable
delay damages because the jury found only $1 of nominal damages on the breach-of-
contract claim, (2) insufficient evidence supported the unreasonable delay claim, and
(3) US General was not entitled to any unreasonable delay damages stemming from
the period after the lawsuit was filed.
US General moved for attorney fees of $391,295.50, under Colo. Rev. Stat.
§ 10-3-1116, which provides that if a plaintiff succeeds on an unreasonable delay or
denial claim, it may recover attorney fees and double damages. It also requested an
amended judgment to reflect the double damages provided by the statute.
On March 30, 2022, the district court denied GuideOne’s motion to amend the
judgment and granted US General’s motion for double damages and attorney fees.
This appeal followed.
II. DISCUSSION
GuideOne argues on appeal that
A. The district court erred by allowing US General to recover unreasonable
delay damages for delays that occurred after the complaint was filed.
B. The jury verdict was inconsistent because the jury awarded significant
damages on US General’s unreasonable delay claim, but no damages on its
breach-of-contract claim.
C. The evidence at trial was insufficient to support the jury’s verdict because
the evidence showed that GuideOne complied with Colorado insurance
regulations.
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D. The district court abused its discretion in granting US General’s request for
attorney fees.
A. Damages for Post-Complaint Delays
GuideOne argues that, under Colorado law, the filing of the complaint
suspended its duty to negotiate with US General, and thus US General cannot recover
damages on its unreasonable delay claim for post-complaint delays. Aplt. Br. at
11-14. GuideOne asserts that the district court’s failure to acknowledge this pre-
complaint/post-complaint distinction caused two errors: (1) the jury instructions and
verdict form should have told the jury it could not assess damages for post-complaint
delays, id. at 13, and (2) the district court should have granted the Rule 59(e) motion
to amend the judgment, id. at 18, 23.
We affirm. GuideOne waived any challenge to the jury instructions, and its
argument misinterprets Colorado law.
Legal Background
Colo. Rev. Stat. § 10-3-1116 provides that an insured can sue its insurer if the
insurer “unreasonably delay[ed] or deni[ed]” the insured’s claim for benefits. “[A]n
insurer’s delay or denial was unreasonable if the insurer delayed or denied
authorizing payment of a covered benefit without a reasonable basis for that action.”
Id. § 10-3-1115.
Sections 10-3-1115 and 10-3-1116 created a “new private right of action” that
is similar to, but distinct from, “an action alleging breach of the common law duty of
good faith and fair dealing.” Kisselman v. Am. Fam. Mut. Ins. Co., 292 P.3d 964,
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973 (Colo. App. 2011). The statutes’ legislative history reveals that “their purpose
. . . was to announce a standard of conduct . . . in addition to and less onerous [for
plaintiffs] than the common law standard of good faith and fair dealing.” Id. at 974.
In cases dealing with the common-law duty of good faith and fair dealing,
Colorado courts have held that the “duty of good faith and fair dealing continues
unabated during the life of an insurer-insured relationship, including through a
lawsuit or arbitration between the insured and the insurer, although the adversarial
nature of such proceedings may suspend the insurer’s obligation to negotiate as a
reflection of good faith.” Sanderson v. Am. Fam. Mut. Ins. Co., 251 P.3d 1213, 1217
(Colo. App. 2010) (emphasis added); see also Bucholtz v. Safeco Ins. Co., 773 P.2d
590, 592-93 (Colo. App. 1988); Bankr. Est. of Morris v. COPIC Ins. Co., 192 P.3d
519, 523-24 (Colo. App. 2008).
No Colorado court has applied this principle—that the initiation of a lawsuit
may “suspend” an insurer’s duty to make prompt payments—to unreasonable delay
claims under § 10-3-1115. And no Colorado court has ever held that an unreasonable
delay claim—whether statutory or common law—encompasses only damages arising
before the insured files suit. To the contrary, the Colorado courts of appeals have
repeatedly emphasized that “bad faith breach of an insurance contract encompasses
all of the dealings between the parties, including conduct occurring before, during,
and after trial.” Bankr. Est. of Morris, 192 P.3d at 524; see also Parsons ex rel.
Parsons v. Allstate Ins. Co., 165 P.3d 809, 815 (Colo. App. 2006). In fact, the
Colorado Supreme Court cited with approval a court of appeals case holding that
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“evidence of bad faith conduct which occurred after the filing of the complaint was
admissible” because the evidence indicated “a continuation of the same difficulties
that preceded the filing of the complaint.” Dale v. Guaranty Nat. Ins. Co., 948 P.2d
545, 552 (Colo. 1997) (quoting Southerland v. Argonaut Ins. Co., 794 P.2d 1102,
1106 (Colo. Ct. App. 1990)); see also id. (“[T]he tort of bad faith breach of insurance
contract encompasses an entire course of conduct.”).
Analysis
a. Jury instructions and verdict form
To the extent GuideOne’s pre-complaint/post-complaint argument is based on
the jury instructions or verdict form, it is waived. Before releasing the jury to
deliberate, the district court circulated the jury instructions and verdict form to the
parties and gave them an opportunity to lodge objections. App., Vol. X at 217-18.
GuideOne said it had “[n]o objection” to the instructions or verdict form. Id. at 218.
If a party fails to timely object to jury instructions or verdict forms that it later
challenges on appeal, we review the instructions and forms for plain error. Barber v.
T.D. Williamson, Inc., 254 F.3d 1223, 1227 (10th Cir. 2001). “Plain error is (1)
error, (2) which is plain, (3) which affects substantial rights, (4) and which seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” Somerlott
v. Cherokee Nation Distribs., Inc., 686 F.3d 1144, 1151 (10th Cir. 2012). If the party
fails to “argue for plain error and its application on appeal,” it waives appellate
review of the issue. Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir.
2011).
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Here, the district court provided both parties the opportunity to lodge
objections to the jury instructions and forms, and GuideOne said it had none. App.,
Vol. X at 218. It therefore forfeited a challenge to the jury instructions and verdict
forms, and because GuideOne has not advanced a plain error argument in its opening
brief, it has waived the issue. Richison, 634 F.3d at 1131.
In its reply brief, GuideOne asserts that even “under a waiver standard,” “[t]he
trial court erred in reviewing the jury instruction[s].” Aplt. Reply Br. at 2. But even
if we were to entertain this argument, GuideOne fails to address the elements of plain
error, and instead tries to argue that it did not forfeit the issue in district court. Id.
at 3. Because GuideOne “make[s] no effort to explain how the district court plainly
erred” under the relevant legal standard, it has waived the issue. Platt v. Winnebago
Indus., Inc., 960 F.3d 1264, 1273 (10th Cir. 2020).2
b. Rule 59(e) motion
We “review[] the district court’s ruling on a Rule 59(e) motion for abuse of
discretion.” Loughridge v. Chiles Power Supply Co., 431 F.3d 1268, 1275 (10th Cir.
2005). To the extent the district court’s ruling depended on a legal conclusion, we
2
GuideOne also contends that “the verdict form dropped ‘unreasonable’ delay
or denial thereby incorrectly instructing the jury on the law for bad faith breach on
[sic] insurance contract.” Aplt. Br. at 13. Because GuideOne failed to raise a
contemporaneous objection to the verdict form’s wording and fails to argue plain
error on appeal, this argument is waived. Also, GuideOne is wrong. The form
instructed the jury to indicate the amount of insurance benefits that “were improperly
delayed and/or denied [by GuideOne] . . . without a reasonable basis.” App., Vol. V
at 231 (emphasis added).
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review that conclusion de novo. Burke v. Regalado, 935 F.3d 960, 1044 (10th Cir.
2019).
GuideOne argues that, due to its post-complaint argument, the district court
erred in denying its motion to amend the judgment. Aplt. Br. at 23-27. It contends
that a party cannot maintain an unreasonable delay claim premised on post-litigation
conduct and asserts that the district court should have amended the verdict to remove
damages stemming from delays that occurred after May 23, 2018. Id. We agree with
the district court.
Colo. Rev. Stat. § 10-3-1115, the unreasonable delay statute, contains no
language stating that an insurer cannot incur liability for unreasonably delaying
payment after the insured files suit. The cases GuideOne cites only concern the
common-law duty of good faith and fair dealing, and the statutory cause of action
imposes a “less onerous” standard on plaintiffs. Kisselman, 292 P.3d at 975.
GuideOne thus presents no authority for its claim that the filing of a lawsuit
precludes an insured from recovering for ensuing delays in payment, and neither the
text nor the legislative history of the statute supports GuideOne’s position.
Even if the same standard governs common-law and statutory delay claims,
Colorado cases establish that an insurer’s obligation to act in good faith “continues
. . . through a lawsuit or arbitration between the insured and the insurer.” Sanderson,
251 P.3d at 1217; see also Bucholtz, 773 P.2d at 592-93; Bankr. Est. of Morris, 192
P.3d at 523-24. The Colorado Supreme Court reinforced this principle when it cited
with approval a case upholding the admission of “evidence of bad faith conduct
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which occurred after the filing of the complaint.” Dale, 948 P.2d at 552 (citing
Southerland, 794 P.2d at 1106). Dale also suggested that if an insurance company
delays payments resulting from arbitration, that would support a bad faith breach of
insurance contract claim, indicating that unreasonable delay claims can be based on
conduct that occurred after an adversarial proceeding began. See id. at 552 n.10. In
short, the statute and the pertinent cases support that an insurer must generally
continue to make prompt payments of undisputed claims even during litigation with
the insured.
GuideOne’s arguments to the contrary are unpersuasive. It cites cases holding
that the initiation of an adversarial proceeding “may suspend the insurer’s obligation
to negotiate as a reflection of good faith” in some circumstances. Sanderson, 251
P.3d at 1217 (citing Bucholtz, 773 P.2d at 592-93) (emphasis added). But it offers no
reason why, in this case, US General’s complaint suspended its duty to promptly pay
uncontested claims.
The facts of this case demonstrate the infirmity of GuideOne’s argument. In
April 2018, US General sent GuideOne an invoice for $91,000 of repairs. That same
day, a GuideOne representative said the “check is in the mail”—an apparent
concession that the policy covered those repairs. App., Vol. VIII at 169. But the
check never came, so US General initiated this suit in May 2018. Although
GuideOne does not dispute that the policy covered the $91,000, it did not pay until
October 2018, six months after US General sent the invoice. Id. at 173. In other
words, according to US General’s evidence, GuideOne unreasonably delayed
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payments for repairs that were undisputedly covered by the policy before and after
US General filed the complaint. GuideOne does not explain why filing the complaint
terminated its obligation to promptly make uncontested payments.
For these reasons, we affirm.
B. Inconsistent Jury Verdict
GuideOne argues that damages under the Colorado unreasonable delay statute
are limited to the amount of benefits the insurer owes under the insurance policy,
Aplt. Br. at 14, and that a plaintiff’s unreasonable delay damages are capped at its
breach-of-contract damages. Id. at 15. Because the jury awarded no general breach-
of-contract damages, GuideOne argues that the award of unreasonable delay damages
produced an internally inconsistent verdict. Id. at 16-17.
GuideOne raised this argument in its motion to amend the judgment under
Federal Rule of Civil Procedure 59(e). App., Vol. X at 9-10. The district court held
that GuideOne waived this argument by failing to object to the verdict when the jury
rendered it. Id. at 271-72. Because GuideOne does not challenge that determination
on appeal, we affirm.
Legal Background
Colo. Rev. Stat. § 10-3-1116, the unreasonable delay statute, provides that
when an insured proves an insurer unreasonably delayed or denied payment under an
insurance policy, the insured “may bring an action . . . to recover reasonable attorney
fees and court costs and two times the covered benefit.” Id. § 10-3-1116(1). We
have held that a claim for “two times the covered benefit” under § 10-3-1116 is
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“distinct from the insured’s underlying entitlement to benefits under the insurance
contract.” Etherton v. Owners Ins. Co., 829 F.3d 1209, 1229 (10th Cir. 2016). Thus,
“[i]n total, the damages may equal three times the covered benefit, but not because
the damages were trebled. The insured’s recovery would be predicated on liability
for two distinct causes of action—the insurer’s breach of contract and its
unreasonable delay or denial of a claim.” Id. at 1230.
Analysis
In its Rule 59(e) motion, GuideOne did not frame its argument in terms of an
inconsistency in the jury’s verdict. ROA, Vol. X at 10-11. Instead, it simply stated
that “[t]he judgment should be amended to reflect the jury determination of damages
of $1 and an unreasonable delay of payment of that covered amount.” Id. at 10.
The district court said GuideOne’s “argument that the award of one dollar in
nominal damages on the claim for breach of contract limits the damages which can be
awarded on the claim for unreasonable delay . . . is, in essence, a claim that the
verdict is inconsistent.” App., Vol. X at 272. Because GuideOne did not object to
the alleged inconsistency when the jury rendered its verdict, the district court found
that it had waived the argument. Id. at 271-72.
In its brief on appeal, GuideOne does not address the district court’s
understanding that its Rule 59(e) motion claimed the jury’s verdict was inconsistent.
Aplt. Br. at 14-18. At oral argument, however, GuideOne said its contention that the
verdict should be amended to reflect $1 in unreasonable delay damages is, in effect, a
claim that the jury’s verdict was inconsistent. Oral Arg. at 06:55-07:07. But
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GuideOne does not challenge the district court’s decision that it waived this argument
by failing to object while the jury was still present. Aplt. Br. at 14-18.
GuideOne has therefore waived this issue. When a jury returns its verdict, a
party that believes the verdict is inconsistent must “object . . . before the jury is
discharged.” Bartee v. Michelin N. Am., Inc., 374 F.3d 906, 911 (10th Cir. 2004)
(quotations omitted). If the party fails to do so, it has waived the issue “unless the
verdict is inconsistent on its face such that the entry of judgment upon the verdict is
plain error.” Id. “Plain error” review in this context does not involve the traditional
four-part test. Id. at 911 n.2. Instead, a facially inconsistent verdict is plain error.
Id. at 911.
GuideOne did not object to the verdict after the verdict was read and before
the district court dismissed the jury. App., Vol. IX at 289-90. GuideOne thus may
mount a challenge on appeal only by showing the verdict was inconsistent on its face.
Bartee, 374 F.3d at 911. But GuideOne makes no attempt in its briefing to do so.
Indeed, at oral argument, it conceded that any inconsistency in the verdict was
difficult to ascertain at the time the jury rendered its decision. Oral Arg. at 12:14-
12:43.
For these reasons, GuideOne waived its challenge to the asserted inconsistency
in the jury’s verdict, so we affirm.
C. Sufficiency of the Evidence
GuideOne contends that insufficient evidence supported US General’s
unreasonable delay claim because it complied with Colorado insurance regulations in
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its treatment of US General. Aplt. Br. at 18-21. We hold that GuideOne waived any
challenge to the sufficiency of the evidence by failing to file a motion for a judgment
as a matter of law at trial.
Under Federal Rule of Civil Procedure 50(a)(1), “[i]f a party has been fully
heard on an issue during a jury trial and the court finds that a reasonable jury would
not have a legally sufficient evidentiary basis to find for the party on that issue,” the
court may grant a motion for a judgment as a matter of law against the party. Failure
to challenge the sufficiency of the evidence under Rule 50(a) precludes such a
challenge on appeal. See ClearOne Commc’ns, Inc. v. Biamp Sys., 653 F.3d 1163,
1183 (10th Cir. 2011).
GuideOne argues US General’s evidence for its unreasonable delay claim was
insufficient because GuideOne complied with the Colorado insurance regulation
providing that “[a]ll insurers . . . shall make a decision on claims and/or pay benefits
due under the policy within sixty (60) days after receipt of a valid and complete
claim unless there is a reasonable dispute between the parties concerning such claim,
and provided the insured has complied with the terms and conditions of the policy of
insurance.” Colo. Code Regs § 702-5:5-1-14(A)(1)(a). But GuideOne’s failure to
raise this argument in a Rule 50(a) motion during the trial, App., Vol. IX at 58-61,
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248-58, precludes it from asserting the challenge on appeal.3 ClearOne Commc’ns,
Inc., 653 F.3d at 1183. Because GuideOne waived this issue, we affirm.4
D. Attorney Fees
GuideOne argues the district court abused its discretion when it granted US
General’s request for $391,295.50 in attorney fees. Aplt. Br. at 27-31. To support its
request before the district court, US General submitted a “lodestar calculation”—it
multiplied the hours its attorneys worked on the case by a proposed hourly rate for
each attorney. App., Vol. VI at 206. The court accepted this calculation, finding that
the hours billed and the proposed hourly rates were reasonable. App., Vol. X at
281-82. GuideOne argues the court erred in reaching these factual findings. Aplt.
Br. at 27-31. We disagree with GuideOne and affirm.
3
GuideOne suggests the evidence did not support the jury’s verdict because
GuideOne “paid the replacement cost upon being provided confirmation that the
agreed upon repairs had been performed, again as per the policy.” Aplt. Br. at 9; see
also Oral Arg. at 00:41-01:37. But GuideOne never presented this argument to the
district court in a Rule 50(a) motion for a judgment as a matter of law, so the
argument is waived.
4
GuideOne’s argument also fails on the merits. We have rejected GuideOne’s
contention that “[t]he fact [that it] complied with . . . [Colorado’s] prompt payment
regulations must preclude, as a matter of law, [US General’s] claim of unreasonable
delay and denial.” Aplt. Br. at 21. In Peden v. State Farm Mut. Auto. Ins. Co., 841
F.3d 887 (10th Cir. 2016), we addressed the interaction between Colorado’s prompt
payment regulation and unreasonable delay claims, and held that “compliance with
this regulation does not mean that the insurer acted reasonably.” Id. at 894; see also
Etherton, 829 F.3d at 1228 n.7 (“The regulations only provide minimum standards to
avoid penalties. Although an insurer may act unreasonably if it violates the
regulation, it does not follow an insurer acts reasonably if it meets the regulation’s
minimum standards.”).
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Standard of Review
“We review a district court’s decision on whether to award attorney fees for
abuse of discretion, but we review de novo the district court’s application of the legal
principles underlying that decision.” Pound v. Airosol Co., 498 F.3d 1089, 1100-01
(10th Cir. 2007) (quotations omitted). To the extent the district court made factual
findings to support its fee award, we review those findings for clear error, Rutter &
Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1187 (10th Cir. 2002), meaning we
“may reverse only if the district court’s finding lacks factual support in the record or
if, after reviewing all the evidence, we have a definite and firm conviction that the
district court erred,” Nat’l Fitness Holdings, Inc. v. Grand View Corp. Ctr., 749 F.3d
1202, 1206 (10th Cir. 2014). Whether hours billed and hourly rates for a lodestar
calculation are reasonable is a question of fact. See Mares v. Credit Bureau of Raton,
801 F.2d 1197, 1205 (10th Cir. 1986).
Additional Procedural History
Four attorneys worked on this case on behalf of US General—Michael Duffy,
Larry Bache, Jonathan Bukowski, and Timothy Burchard. At trial, Mr. Duffy and
Mr. Bache examined witnesses and delivered US General’s opening and closing
statements. App., Vol. VI at 220-39 (US General’s billing statements). Mr.
Bukowski also attended the trial to coordinate the display of US General’s exhibits,
assist in trial preparation, and perform legal research.
In its motion for attorney fees, US General proposed a lodestar calculation of
$391,295.50. To support that calculation, US General submitted a detailed billing
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statement documenting the time spent by each attorney, along with an affidavit from
Mr. Bache describing the work he and his colleagues performed. The lodestar
calculation included billing rates for Mr. Duffy at $550 per hour, Mr. Bache at $450
per hour, Mr. Bukowski at $400 per hour, Mr. Burchard at $350 per hour, and
paralegals at $125 per hour. US General also submitted a letter from a Denver
attorney Rory Francis, who opined that (1) the hourly rates at which US General’s
lawyers billed “correspond with each attorney’s education, experience, and expertise”
and are within the range of rates charged by comparable attorneys, though “near the
top of” that range; and (2) the hours billed were reasonable in light of the demands of
the case. App., Vol. VI at 258-59.
GuideOne opposed US General’s attorney fees request. It provided a report
from another Denver attorney Troy Rackham. He opined that the hourly rates
charged by the four US General attorneys were higher than the prevailing market
rates, given these attorneys’ legal experience. App., Vol. X at 42-48. GuideOne also
contended that Mr. Bukowski’s presence at trial was unnecessary.
The district court granted US General’s motion and awarded the lodestar
amount—$391,295.50. In reaching that decision, the district court found that (1) US
General’s attorneys’ hourly rates were reasonable—though “toward the high end of
reasonable rates”—given the prevailing market rates, App., Vol. X at 281; (2) US
General’s attorneys had “achieved a high degree of success in this case” in light of
the large jury verdict, which supported relatively high hourly rates, id. at 282; and
(3) the amount of time US General’s attorneys spent on the case was reasonable,
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including the time that Mr. Bukowski spent at trial. The court noted that “Mr.
Bukowski’s extensive knowledge of the record was important to preparation of trial
witnesses and developing strategy for direct and cross examination at trial.” Id.
at 282.
Legal Background
As noted, Colo. Rev. Stat. § 10-3-1116(1) provides that a plaintiff who brings
a successful unreasonable delay claim under § 10-3-1115 can recover “reasonable
attorney fees.” We apply Colorado law to assess the reasonableness of the fee
request. See Scottsdale Ins. Co. v. Tolliver, 636 F.3d 1273, 1279 (10th Cir. 2011).
Under Colorado law, “[i]f a statute providing for a fee award does not provide
a specific definition of ‘reasonableness,’ the amount of the award must be determined
in light of all the circumstances, based upon the time and effort reasonably expended
by the prevailing party’s attorney.” Tallitsch v. Child Support Servs., Inc., 926 P.2d
143, 147 (Colo. App. 1996). “The initial estimate by the court of a reasonable
attorney fee is reached by calculation of the ‘lodestar’ amount. This amount
represents the number of hours reasonably expended multiplied by a reasonable
hourly rate and carries with it a strong presumption of reasonableness.” Id. After
calculating the lodestar, the district court may increase or decrease the fee award
“based on the degree of success achieved.” Id. at 148.
In determining a reasonable hourly rate, the district court should consider “the
prevailing market rate by private lawyers in the community,” as well as the
“experience, reputation, and ability” of the lawyers seeking fees. Payan v. Nash
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Finch Co., 310 P.3d 212, 221 (Colo. App. 2012). After identifying a reasonable
hourly rate, the district court must also assess the “necessity for the hours billed.”
In re Marriage of Aragon, 444 P.3d 837, 841 (Colo. App. 2019).
Analysis
Because GuideOne has not shown on appeal that the district court erred in its
factual determinations underlying the fee award, the court did not abuse its discretion
in approving that award.
a. Hourly rate
Both parties presented reports on the reasonableness of the proposed hourly
rates from experienced Denver attorneys familiar with the local legal market.
Compare App., Vol. VI at 258-59 with App., Vol. X at 29-30. GuideOne does not
explain how the district court clearly erred in crediting US General’s expert over
GuideOne’s. Because US General supported its fee request with evidence about the
Denver legal market, the district court’s determination that those fees were
reasonable has “factual support in the record.” National Fitness Holdings, Inc., 749
F.3d at 1206. The district court therefore did not clearly err in finding that US
General’s proposed hourly rates were reasonable in light of the Denver legal market.5
5
The district court noted that US General’s hourly rates were “toward the high
end of reasonable rates for this type of litigation.” App., Vol. X at 281. We agree.
But because US General introduced expert evidence suggesting that the proposed
rates were within the reasonable range in the Denver market, we cannot say the
district court abused its discretion in approving those rates.
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b. Degree of success
In addition to its legal market finding, the district court found that US
General’s proposed hourly rates were reasonable because its attorneys “achieved a
high degree of success in this case,” App., Vol. X at 282—a jury verdict of almost
$300,000, which the court later doubled under Colo. Rev. Stat. § 10-3-1116 at US
General’s request.
GuideOne perfunctorily challenges the district court’s assessment of US
General’s success. Aplt. Br. at 29. It suggests that because the jury awarded no
general damages on US General’s breach-of-contract claim, US General achieved
only “limited success.” Aplt. Br. at 29. But this ignores the large unreasonable delay
award. Viewing the case as a whole, we conclude the district court did not clearly err
in determining US General’s attorneys achieved a “high degree of success.” App.,
Vol. X at 282. And, under Colorado law, a high “degree of success achieved”
supports a larger fee award. Tallitsch, 926 P.2d at 147.
c. Number of hours
GuideOne’s primary challenge on appeal to the number of hours used for the
lodestar calculation is its argument that Mr. Bukowski’s presence at trial was
unnecessary.6 It provides no reason for us to disagree with the district court’s
6
GuideOne also suggests the time US General spent on summary judgment
briefing should be deducted from the lodestar because its summary judgment motions
“only became necessary” when “Plaintiff[] fail[ed] to originally bring this lawsuit in
the name of the correct party.” Aplt. Br. at 31. We disagree.
As noted above, Crossroads was the original plaintiff, but had assigned its
rights under the insurance contract to US General and successfully moved to join US
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analysis. The district court observed that even though Mr. Bukowski did not examine
witnesses or deliver the opening statement or closing argument, his “extensive
knowledge of the record” helped US General strategize at trial. App., Vol. X at
281-82. US General’s billing records confirm this point. On each day of the trial,
Mr. Bukowski billed time for assisting the other attorneys in their preparation of
witnesses and trial arguments, including legal research. See, e.g., App., Vol. VI
at 238 (Mr. Bukowski bills time for “research[ing] directed verdict standards” and
“work[ing] with Mike Duffy to review trial notes and prepare closing argument.”).
The district court thus did not clearly err in determining that Mr. Bukowski’s
presence at trial was reasonable.
For these reasons, we affirm the district court’s attorney fees award.
General as plaintiff. GuideOne suggests that an error by US General’s attorneys
necessitated the summary judgment briefing and unnecessarily increased the number
of hours they spent on the case. Aplt. Br. at 31. Because GuideOne fails to develop
this contention, it is arguably waived. See Adler v. Wal–Mart Stores, Inc., 144 F.3d
664, 679 (10th Cir. 1998) (“Arguments inadequately briefed in the opening brief are
waived.”). Also, as the district court observed, the issues in the summary judgment
briefing had nothing to do with which party was the proper plaintiff. App., Vol. X at
282; see also Dist. Ct. Doc. 28 (GuideOne’s first motion for summary judgment);
App., Vol. II at 9-11 (GuideOne’s second motion for summary judgment). We see no
reason to deduct hours related to summary judgment briefing.
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III. CONCLUSION
We affirm the district court’s judgment.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
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