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    Sharper Edge, Inc. v. Continental Ins. Co., 10th Cir. (1999)

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    The Sharper Edge sued Continental Insurance Company for breach of contract after Continental paid the policy limit of $25,000 for inventory lost in a fire at 2000 Ski Time Square, where Sharper Edge had two leased units. Sharper Edge argued the inventory stored in its newly leased Unit B should have been covered under the higher $500,000 limit for losses at newly acquired locations. The district court initially found the policy language ambiguous but later granted summary judgment for Continental, finding the language unambiguously defined the covered premises as 2000 Ski Time Square so losses there were subject to the lower limit. The Tenth Circuit affirmed, agreeing the policy plainly defined any property at 2000 Ski Time Square as not being at a newly acquired location

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    Sharper Edge, Inc. v. Continental Ins. Co., 10th Cir. (1999)

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    The Sharper Edge sued Continental Insurance Company for breach of contract after Continental paid the policy limit of $25,000 for inventory lost in a fire at 2000 Ski Time Square, where Sharper Edge had two leased units. Sharper Edge argued the inventory stored in its newly leased Unit B should have been covered under the higher $500,000 limit for losses at newly acquired locations. The district court initially found the policy language ambiguous but later granted summary judgment for Continental, finding the language unambiguously defined the covered premises as 2000 Ski Time Square so losses there were subject to the lower limit. The Tenth Circuit affirmed, agreeing the policy plainly defined any property at 2000 Ski Time Square as not being at a newly acquired location

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    Filed: 1999-04-13 Precedential Status: Non-Precedential Docket: 98-1143

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    The Sharper Edge sued Continental Insurance Company for breach of contract after Continental paid the policy limit of $25,000 for inventory lost in a fire at 2000 Ski Time Square, where Sharper Edge had two leased units. Sharper Edge argued the inventory stored in its newly leased Unit B should have been covered under the higher $500,000 limit for losses at newly acquired locations. The district court initially found the policy language ambiguous but later granted summary judgment for Continental, finding the language unambiguously defined the covered premises as 2000 Ski Time Square so losses there were subject to the lower limit. The Tenth Circuit affirmed, agreeing the policy plainly defined any property at 2000 Ski Time Square as not being at a newly acquired location

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    57 views7 pages

    Sharper Edge, Inc. v. Continental Ins. Co., 10th Cir. (1999)

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    Scribd Government Docs
    The Sharper Edge sued Continental Insurance Company for breach of contract after Continental paid the policy limit of $25,000 for inventory lost in a fire at 2000 Ski Time Square, where Sharper Edge had two leased units. Sharper Edge argued the inventory stored in its newly leased Unit B should have been covered under the higher $500,000 limit for losses at newly acquired locations. The district court initially found the policy language ambiguous but later granted summary judgment for Continental, finding the language unambiguously defined the covered premises as 2000 Ski Time Square so losses there were subject to the lower limit. The Tenth Circuit affirmed, agreeing the policy plainly defined any property at 2000 Ski Time Square as not being at a newly acquired location

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    of 7

    F I L E D

    UNITED STATES COURT OF APPEALS


    FOR THE TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    APR 13 1999

    PATRICK FISHER
    Clerk

    THE SHARPER EDGE, INC., a


    Colorado corporation,
    Plaintiff-Appellant,
    and
    GARY COGSWELL,

    No. 98-1143
    (D.C. No. 96-B-1216)
    (D. Colo.)

    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 courts
    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.
    1291 and we affirm.

    See id . We have jurisdiction under 28 U.S.C.

    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. . . .
    Appellants 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,

    (...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).
    1

    -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 policys
    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 Sharpers Edges 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 Edges
    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 courts 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 courts 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 courts 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 courts 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.

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