National Union Fire Insurance Company of Pittsburgh v. Dish Network, LLC

PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH,
Plaintiff Counterclaim Defendant -
Appellee,
v.
DISH NETWORK, LLC,
Defendant Counterclaimant -
Appellant.
No. 20-1215
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:15-CV-01053-JLK)
_________________________________
Lee M. Epstein, Flaster Greenberg PC, Philadelphia, Pennsylvania, for Defendant -
Appellant.
Robert Reeves Anderson, Arnold & Porter Kaye Scholer LLP, Denver, Colorado
(Timothy R. Macdonald, Arnold & Porter Kaye Scholer LLP, Denver, Colorado and
Sally L. Pei, Arnold & Porter Kaye Scholer LLP, Washington, D.C., with him on the
brief), for Plaintiff - Appellee.
_________________________________
Before HOLMES, BALDOCK, and MATHESON, Circuit Judges.
_________________________________
MATHESON, Circuit Judge.
_________________________________
FILED
United States Court of Appeals
Tenth Circuit
November 2, 2021
Christopher M. Wolpert
Clerk of Court
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The United States and four states sued DISH Network, LLC (“DISH”), a
satellite television provider, for violations of the Telephone Consumer Protection Act
(“TCPA”). DISH submitted a claim for defense and indemnity to its insurer,
National Union Fire Insurance Company of Pittsburgh, Pennsylvania (“National
Union”). National Union denied the claim and filed suit in Colorado federal court
seeking a declaration that it had no duty to defend or indemnify DISH in the
underlying TCPA lawsuit. The district court granted summary judgment to National
Union, relying on our decision in ACE American Insurance Co. v. DISH Network,
LLC, 883 F.3d 881 (10th Cir. 2018). Exercising jurisdiction under 28 U.S.C. § 1291,
we affirm.
We also affirm the district court’s denial of DISH’s request for further
discovery under Federal Rule of Civil Procedure 56(d). And we deny DISH’s motion
to certify a question of state law to the Colorado Supreme Court.
I. BACKGROUND
A. Factual History
DISH sells satellite television programming to consumers throughout the
United States. DISH and its authorized dealers market its services through a variety
of methods, including telemarketing.
The National Union Policies
National Union issued seven Commercial Umbrella Policies (the “Policies”
and each one a “Policy”) to DISH between 2003 and 2010. The 2003 Policy and
2004 Policy are relevant here.
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Under Insuring Agreement I of the 2003 Policy, titled “Coverage,” National
Union agreed to:
pay on behalf of [DISH] those sums in excess of the Retained
Limit that [DISH] becomes legally obligated to pay by reason
of liability imposed by law or assumed by [DISH] under an
Insured Contract because of Bodily Injury, Property Damage,
Personal Injury or Advertising Injury that takes place during
the Policy Period and is caused by an Occurrence happening
anywhere in the world. The amount we will pay for damages
is limited as described in Insuring Agreement III, Limits of
Insurance.
App., Vol. 6 at 1231.
The language of the 2004 Policy was substantially similar. Its coverage
provision specified that National Union would pay on behalf of DISH:
those sums in excess of the Retained Limit that [DISH]
becomes legally obligated to pay as damages by reason of
liability imposed by law because of Bodily Injury, Property
Damage or Personal Injury and Advertising Injury to which
this Insurance applies . . . .
Id. at 1196.
The Underlying Telemarketing Lawsuit
In 2009, the United States and the States of California, Illinois, North
Carolina, and Ohio sued DISH in the United States District Court for the Central
District of Illinois alleging DISH’s telemarketing practices violated the TCPA (the
“Telemarketing Lawsuit”). The TCPA makes it “unlawful for any person [subject to
a limited list of exceptions] . . . to initiate any telephone call to any [cell phone or]
residential telephone line using an artificial or prerecorded voice to deliver a message
without the prior express consent of the called party.” 47 U.S.C. § 227(b)(1)(A), (B).
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It also permits a state to “bring a civil action on behalf of its residents to enjoin such
calls, an action to recover for actual monetary loss or receive $500 in damages for
each violation, or both such actions.” Id. § 227(g)(1). The state enforcement
provision allows for treble damages up to $1,500 for each violation that is committed
“willfully or knowingly.” Id.
The complaint in the Telemarketing Lawsuit (the “Telemarketing Complaint”)
alleged violations of the TCPA (among other claims not relevant here) and sought:
(1) Statutory damages of $500 for each violation of the TCPA;
(2) Statutory damages of $1,500 for each violation of the TCPA found by the
court to have been committed by DISH willfully and knowingly; and
(3) A permanent injunction to prevent future violations of the TCPA and
relevant state law.
ACE
In addition to the Umbrella Policies it obtained through National Union, DISH
purchased six primary commercial general liability policies from ACE American
Insurance Co., for consecutive annual periods from 2004 through 2010 (the “ACE
Policies”). 1 The National Union Umbrella Policies provided additional coverage for
amounts in excess of the limits in DISH’s primary policies from ACE.
1 DISH also purchased a primary commercial general liability policy from
Travelers Insurance Company effective from 2003 through 2004. See Travelers
Prop. Cas. Co. of Am. v. DISH Network LLC, No. 12-03098, 2014 WL 1217668,
at *2 (C.D. Ill. Mar. 24, 2014).
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ACE sued DISH in the District of Colorado seeking a declaration that the ACE
Policies did not cover the Telemarketing Lawsuit. ACE Am. Ins. Co. v. Dish
Network, LLC, 173 F. Supp. 3d 1128, 1132 (D. Colo. 2016). The district court
granted summary judgment to ACE, id. at 1139, and we affirmed. ACE Am. Ins. Co.
v. Dish Network, LLC, 883 F.3d 881 (10th Cir. 2018). We concluded that (1) the
statutory damages sought in the Telemarketing Complaint are a “penalty” and thus
uninsurable under Colorado law, and (2) the ACE policies did not cover claims for
prospective injunctive relief. Id. at 892-94. 2
B. Procedural History
After the Telemarketing Complaint was filed, DISH submitted a claim to
National Union for defense and indemnity under the Policies. National Union
rejected the claim.
National Union then filed this suit in the District of Colorado, invoking the
court’s diversity jurisdiction. See 28 U.S.C. § 1332(a). It sought a declaratory
judgment that it had no duty under the Policies to defend or indemnify DISH in
connection with the Telemarketing Lawsuit. DISH asserted counterclaims alleging
that National Union breached the Policies by denying coverage.
2 In a separate suit for declaratory relief brought by Travelers in the Central
District of Illinois, the district court granted partial summary judgment to DISH.
Travelers, 2014 WL 1217668, at *15.
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The parties filed cross-motions for summary judgment on National Union’s
duty to defend under the 2003 and 2004 Policies, as well as motions for additional
discovery under Federal Rule of Civil Procedure 56(d). 3
The district court granted summary judgment to National Union. It relied
heavily on our previous decision in ACE. As relevant to this appeal, the district court
concluded:
 Under ACE, the claim for statutory damages in the Telemarketing
Complaint sought a penalty and therefore was uninsurable as a matter of
Colorado public policy.
 The Policies did not cover the Telemarketing Complaint’s claim for
injunctive relief because, as in ACE, they did not cover the costs of
preventing future violations.
 The Telemarketing Complaint’s allegations did not potentially fall
within the Policies’ definitions of “Bodily Injury” or “Property
Damage.”
The district court thus held that National Union had no obligation to defend or, by
extension, to indemnify DISH in the Telemarketing Lawsuit. The court also denied
DISH’s Rule 56(d) motion as unnecessary.
3 The remaining five policies for the years 2005 to 2009 “contain an express
exclusion which—if enforceable—clearly excludes” the coverage sought by DISH.
App., Vol. 7 at 1577 n.3. The parties agreed that, if there is no coverage under the
2004 Policy, there could be no coverage under the successor policies because the
coverage language, aside from the express exclusion, is substantially similar. The
parties also agreed that if National Union had no duty to defend, it had no duty to
indemnify because the duty to defend is broader. The district court therefore directed
the parties to file initial summary judgment motions limited to the question of
whether National Union had a duty to defend under the 2003 or 2004 Policies.
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II. DISCUSSION
Federal jurisdiction in this case is based on diversity of citizenship. 28 U.S.C.
§ 1332(a). We therefore apply the substantive law of the forum state, Colorado, to
the underlying duty-to-defend claim, and federal law to the Rule 56(d) procedural
issue. See Broker’s Choice of America, Inc. v. NBC Universal Inc., 861 F.3d 1081,
1099 (10th Cir. 2017).
A. Duty to Defend
Standard of Review
“We review an order granting summary judgment de novo, giving no
deference to the district court’s decision and applying the same standards as the
district court.” Carlile v. Reliance Standard Life Ins. Co., 988 F.3d 1217, 1221 (10th
Cir. 2021). “In doing so, we view the evidence and draw reasonable inferences in the
light most favorable to the nonmoving party.” Sinclair Wyo. Refin. Co. v. A&B
Builders, Ltd., 989 F.3d 747, 765 (10th Cir. 2021) (quotations and alteration
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).
Under Colorado law, insurance policies are contracts, which courts review de
novo. Owners Ins. Co. v. Dakota Station II Condo. Ass’n, Inc., 443 P.3d 47, 51
(Colo. 2019).
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Colorado Insurance Law
a. General principles of policy interpretation
Colorado courts “construe an insurance policy’s terms according to principles
of contract interpretation.” Thompson v. Md. Cas. Co., 84 P.3d 496, 501 (Colo.
2004). “As with any contract, we construe the terms of an insurance policy in order
to promote the intent of the parties.” Cary v. United of Omaha Life Ins. Co., 108
P.3d 288, 290 (Colo. 2005). “The words of the contract should be given their plain
meaning according to common usage, and strained constructions should be avoided.”
Allstate Ins. Co. v. Huizar, 52 P.3d 816, 819 (Colo. 2002). Policy terms “are to be
interpreted as understood by an ordinary person, not by one engaged in the insurance
business.” Allstate Ins. Co. v. Juniel, 931 P.2d 511, 516 (Colo. App. 1996).
Courts must enforce the plain language of the insurance policy unless it is
ambiguous. Cary, 108 P.3d at 290. “An insurance policy is ambiguous if it is
susceptible on its face to more than one reasonable interpretation.” Id. But “[a] mere
disagreement between the parties concerning interpretation of the policy does not
create an ambiguity.” Id. “To determine whether a policy contains an ambiguity, we
must evaluate the policy as a whole.” Id. When an insurance policy is “offered on a
take it or leave it basis, rather than being fully negotiated by the parties,” Colorado
courts “construe an ambiguity in favor of coverage.” Hoang v. Assurance Co. of
Am., 149 P.3d 798, 892 (Colo. 2007) (citation omitted).
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b. Duty to defend
Colorado courts hold that “an insurer’s duty to defend arises solely from the
complaint in the underlying action.” Cotter Corp. v. Am. Empire Surplus Lines Ins.
Co., 90 P.3d 814, 827 (Colo. 2004). A duty to defend exists “when a complaint
includes any allegations that, ‘if sustained, would impose a liability covered by the
policy.’” Id. (quoting Hecla Mining Co. v. N.H. Ins. Co., 811 P.2d 1083, 1089 (Colo.
1991)). This duty is “broader than the duty to indemnify, which depends on the
ultimate determination of coverage as decided by the trier of fact.” Id.
In making the duty-to-defend determination, “Colorado courts adhere to a
‘four corners rule’ or ‘complaint rule,’ under which the courts compare the
allegations of the underlying complaint with the terms of the applicable policy.”
DISH Network Corp. v. Arch Specialty Ins. Co., 659 F.3d 1010, 1015 (10th Cir.
2011). This rule “operates to cast a broad net, such that when the underlying
complaint alleges any facts or claims that might fall within the ambit of the policy,
the insurer must tender a defense.” Cyprus Amax Mins. Co. v. Lexington Ins. Co.,
74 P.3d 294, 301 (Colo. 2003). Insurers thus have “a heavy burden to overcome in
avoiding the duty to defend, such that the insured need only show that the underlying
claim may fall within policy coverage; the insurer must prove it cannot.” Id.
(quotations omitted).
“To defeat a duty to defend, an insurer must establish that there is no factual or
legal basis on which the insurer might eventually be held liable to indemnify the
insured.” Cotter, 90 P.3d at 829 (quotations omitted). “Where the insurer’s duty to
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defend is not apparent from the pleadings in the case against the insured, but the
allegations do state a claim which is potentially or arguably within the policy
coverage, or there is some doubt as to whether a theory of recovery within the policy
coverage has been pleaded, the insurer must accept the defense of the claim.” Hecla,
811 P.2d at 1089 (quotations and alteration omitted).
Analysis
The underlying Telemarketing Complaint sought statutory damages under the
TCPA and permanent injunctive relief. Following ACE, the district court concluded
that (a) TCPA statutory damages are uninsurable as a matter of Colorado public
policy and (b) the Policies do not cover claims for injunctive relief. We agree.
Because the Policies do not cover any of the relief sought in the Telemarketing
Complaint, National Union had no duty to defend DISH against the Telemarketing
Lawsuit.
Alternatively, National Union had no duty to defend because (c) the
Telemarketing Complaint did not allege a potentially covered injury. The district
court correctly concluded that none of the allegations of the Telemarketing
Complaint potentially fall within the Policies’ definitions of “Bodily Injury” or
“Property Damage,” which are the only sources of coverage that DISH presses on
appeal.
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a. Statutory damages
National Union had no duty to defend DISH against a claim for TCPA
statutory damages because those damages are a “penalty” under Colorado law and
thus uninsurable as a matter of Colorado public policy.
i. TCPA statutory damages are uninsurable “penalties” under Colorado
law
“Colorado public policy prohibits ‘insuring intentional or willful wrongful
acts.’” ACE, 883 F.3d at 888-89 (quoting Bohrer v. Church Mut. Ins. Co., 965 P.2d
1258, 1262 (Colo. 1998)). Specifically, “the public policy of Colorado prohibits an
insurance carrier from providing insurance coverage for punitive damages.” Id. at
889 (alteration omitted) (quoting Lira v. Shelter Ins. Co., 913 P.2d 514, 517 (Colo.
1996)). In Colorado, “[p]unitive damages are ‘intended to punish the defendant for
his wrongful acts and to deter similar conduct in the future’ rather than compensate
the plaintiff.” Id. (quoting Lira, 913 P.2d at 517).
We have already held in ACE, which concerned the same underlying
Telemarketing Complaint, that “the provision awarding statutory damages for
violating the TCPA is a penalty under Colorado law and uninsurable as a matter of
Colorado public policy.” ACE, 883 F.3d at 892. That holding controls here.
“[W]hen a panel of this Court has rendered a decision interpreting state law, that
interpretation is binding on district courts in this circuit, and on subsequent panels of
this Court, unless an intervening decision of the state’s highest court has resolved the
issue.” Wankier v. Crown Equip. Corp., 353 F.3d 862, 866 (10th Cir. 2003).
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ii. Rooftop Restoration does not undermine ACE
DISH argues that the Colorado Supreme Court’s decision in Rooftop
Restoration, Inc. v. American Family Mutual Insurance Co., 418 P.3d 1173 (Colo.
2018), has undermined the reasoning of ACE. We disagree.
Our analysis in ACE proceeded from the Colorado Supreme Court’s
conclusion in Kruse v. McKenna that TCPA statutory damages are a “penalty” as that
term is used in Colorado’s survival statute. 178 P.3d 1198, 1201 (Colo. 2008),
overruled on other grounds by Guarantee Tr. Life Ins. Co. v. Est. of Casper by &
through Casper, 418 P.3d 1163 (Colo. 2018). In Colorado, statutory claims for
“penalties” “do not survive and are therefore non-assignable.” Id. at 1200. The
Kruse court articulated a three-part test for determining “whether a statutory claim is
one for a penalty” under Colorado law. Id. at 1201. 4 Applying that test, the court
held that statutory damages under the TCPA are “penalties” and therefore
unassignable. Id.
In ACE, we recognized that “the Colorado courts have not had occasion to
apply Kruse in the context of insurance coverage,” but we concluded that, “absent a
compelling reason to believe the Colorado Supreme Court would limit[] its holding in
Kruse to assignability, we cannot depart from that decision.” 883 F.3d at 890. We
4 The three-part Kruse test asks “whether (1) the statute asserted a new and
distinct cause of action; (2) the claim would allow recovery without proof of actual
damages; and (3) the claim would allow an award in excess of actual damages.” 178
P.3d at 1201 (footnote omitted).
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thus held that TCPA statutory damages are uninsurable penalties under Colorado law.
Id. at 892.
In Rooftop Restoration, decided after ACE, the Colorado Supreme Court held
that a statutory claim for unreasonable delay or denial of insurance benefits is not an
action for a “penalty” and therefore not subject to Colorado’s one-year statute of
limitations for “[a]ll actions for any penalty or forfeiture of any penal statutes.” 418
P.3d at 1174-75 (quoting Colo. Rev. Stat. § 13-80-103(1)(d)). In that context, the
court said “the Kruse test is not applicable when the intent of the legislature is clear
that a particular cause of action is or is not governed by a certain statute of
limitations.” Id. at 1176. Rather than apply the Kruse test, the court looked “to the
text of the statute of limitations and the associated accrual provision to determine the
intent of the legislature.” Id.
DISH argues that Rooftop Restoration abrogated ACE. It urges us to consider
anew whether TCPA statutory damages are penalties for insurance purposes and to
apply the “legislative intent” analysis endorsed in Rooftop Restoration. But DISH
misreads Rooftop Restoration.
Rooftop Restoration did not disturb Kruse’s holding that TCPA statutory
damages are penalties under Colorado law. Although it declined to apply the Kruse
test in the statute of limitations context, the court specifically noted “that [the Kruse
test] may be useful in other contexts and d[id] not necessarily abandon it entirely.”
Id. It then cited Kruse as an example of one circumstance in which that test may still
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be “useful.” Id.5 Rooftop Restoration thus left intact the holding we relied upon in
ACE—that TCPA statutory damages are penalties under Colorado law. See 883 F.3d
at 890-92. Because Rooftop Restoration did not undermine the premise of ACE, we
have no occasion to revisit ACE’s holding that TCPA statutory damages are
uninsurable under Colorado law. See Wankier, 353 F.3d at 866 (When a panel of this
court interprets state law, that interpretation is binding on subsequent panels “unless
an intervening decision of the state’s highest court has resolved the issue.”).
b. Injunctive relief
The National Union Policies do not cover the costs of preventing future harms.
National Union therefore had no duty to defend DISH against claims for prospective
injunctive relief. Here, too, ACE controls.
i. The ACE Policies
The ACE Policies required ACE to “pay those sums that DISH becomes
legally obligated to pay as damages because of injuries or damage to which this
insurance applies.” ACE, 883 F.3d at 893 (quotations and alterations omitted). We
5 Specifically, the court said:
Although our decision today does not apply the Kruse test, we
note that it may be useful in other contexts and do not
necessarily abandon it entirely. E.g., Kruse, 178 P.3d at 1198
(considering whether a claim under the Telephone Consumer
Protection Act was assignable to a third-party). For example,
the Kruse test may still prove useful in cases where the intent
of the legislature is not clear from the plain meaning of the
relevant statutory text when viewed in the context of the
statutory scheme as a whole.
Rooftop Restoration, 418 P.3d at 1176 (footnote omitted).
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interpreted this language to mean that “ACE is obligated to indemnify damages
arising from past injuries, not the cost of preventing future violations.” Id. Although
the Colorado Supreme Court has held the “ordinary meaning of ‘damages’ is broad
and covers equitable relief,” we explained that Colorado has not “mandated that
insurers absorb the costs of preventing future damages.” 883 F.3d at 893 (quoting
Compass Ins. Co. v. City of Littleton, 984 P.2d 606, 622-23 (Colo. 1999)).
ii. The National Union Policy
DISH argues that ACE is distinguishable because the ACE Policies covered
only “damages,” while the 2003 National Union Policy covered expenses that DISH
became legally obligated to pay “by reason of liability imposed by law.” 6 We agree
with National Union that the 2003 Policy, like the ACE Policies, only covers
damages arising from past injuries.
Like the ACE Policies, the 2003 National Union Policy covered only sums that
DISH “becomes legally obligated to pay . . . because of” covered injury or damage
“that takes place during the policy period.” App., Vol. 6 at 1231. As we concluded
in ACE, the “cost of preventing future violations” is not an amount incurred “because
of” an injury that occurred during the applicable period. 883 F.3d at 893.
6 The 2004 Policy, like the ACE Policies, replaced the phrase “by reason of
liability imposed by law” with the phrase “as damages.” App., Vol. 6 at 1196.
Because we conclude that the 2003 Policy does not cover claims for injunctive relief,
it follows that the 2004 Policy does not either.
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* * * *
Under ACE, TCPA statutory damages are uninsurable under Colorado law, and
the National Union Policies do not cover injunctive relief. Because the Policies do
not cover the relief sought in the Telemarketing Complaint, National Union had no
duty to defend DISH in the underlying suit.
c. Covered injuries
Alternatively, National Union had no duty to defend DISH in the underlying
suit because the Telemarketing Complaint did not allege a covered injury.
The National Union Policies covered only “Property Damage,” “Bodily
Injury,” “Personal Injury,” and “Advertising Injury.” On appeal, DISH argues that
the allegations in the Telemarketing Complaint potentially fell within the Policies’
definitions of “Bodily Injury” and “Property Damage.” We agree with the district
court that they did not.
The 2003 Policy defined “Bodily Injury” as “bodily injury, sickness, disability
or disease” and “mental injury, mental anguish, humiliation, shock or death if
directly resulting from bodily injury, sickness, disability or disease.” App., Vol. 6 at
1233. The 2004 Policy similarly defined “Bodily Injury” as “bodily injury, sickness,
or disease sustained by any person, including death or mental anguish resulting from
any of these at any time.” Id. at 1211.
Both Policies defined “Property Damage” as “1. Physical injury to tangible
property, including all resulting loss of use of that property,” or “2. Loss of use of
tangible property that is not physically injured.” Id. at 1216-17; 1236.
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The allegations of the Telemarketing Complaint did not potentially or arguably
fall within the Policies’ definition of “Bodily Injury” or “Property Damage.” Under
the complaint rule, “if the complaint does not allege on its face a claim that would be
covered by the policy, then there is no duty to defend.” Chavez v. Ariz. Auto. Ins.
Co., 947 F.3d 642, 646 (10th Cir. 2020). The duty to defend arises only “when the
underlying complaint alleges any facts or claims that might fall within the ambit of
the policy.” Cyprus Amax Mins., 74 P.3d at 301. In applying the complaint rule, “we
may not read hypothetical facts into the pleadings.” Lopez ex rel. Lopez v. Am. Fam.
Mut. Ins. Co., 148 P.3d 438, 440 (Colo. App. 2006).
Nothing in the Telemarketing Complaint suggested any potential liability for
“bodily injury, sickness, disability or disease.” App., Vol. 6 at 1233. It contained no
allegation that unsolicited telemarketing calls physically injured any consumer. The
only “injury” alleged was the receipt of unwanted phone calls, which Congress has
recognized as a legally cognizable concrete harm. See Lupia v. Medicredit, Inc., 8
F.4th 1184, 1192 (10th Cir. 2021) (Congress “may elevate to the status of legally
cognizable injuries concrete, de facto injuries that were previously inadequate in law”
(quotations omitted)); Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 463 (7th Cir.
2020) (recognizing unwanted text messages under the TCPA as a sufficiently
“concrete” harm to satisfy Article III). But this “injury” did not fall within the
Policies’ definition of bodily harm.
Nor did the Telemarketing Complaint allege “Property Damage,” including the
“loss of use” of “tangible property.” App., Vol. 6 at 1236. DISH argues that
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unwanted telemarketing calls cause the “loss of use” of one’s telephone because the
recipient of such a call cannot use the phone for other purposes during the call. But
that allegation did not appear in the Telemarketing Complaint.
* * * *
The Telemarketing Complaint did not allege any injuries that potentially fall
within the Policies’ definitions of “Bodily Injury” or “Property Damage.” For this
independent reason, National Union had no duty to defend DISH in the
Telemarketing Lawsuit.
B. Rule 56(d)
DISH also appeals the district court’s denial of its request for additional
discovery under Federal Rule of Civil Procedure Rule 56(d). Reviewing for abuse of
discretion, Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1249 (10th Cir. 2015), we
affirm.
Under Rule 56(d), a district court may permit additional time for discovery if
“a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot
present facts essential to justify its opposition.” The declaration must specify “(1)
the probable facts not available, (2) why those facts cannot be presented currently,
(3) what steps have been taken to obtain these facts, and (4) how additional time will
enable the party to obtain those facts and rebut the motion for summary judgment.”
Birch, 812 F.3d at 1249 (quotations and alteration omitted). “Requests for further
discovery should ordinarily be treated liberally. But relief under Rule 56(d) is not
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automatic.” Cerveny v. Aventis, Inc., 855 F.3d 1091, 1110 (10th Cir. 2017) (citations
omitted).
The district court correctly concluded that National Union had no duty to
defend DISH based on the plain and unambiguous meaning of the relevant policy
provisions. It decided a pure question of law. No discovery was needed. “A court
should only admit parol evidence when the contract between the parties is so
ambiguous that their intent is unclear.” Boyer v. Karakehian, 915 P.2d 1295, 1299
(Colo. 1996); see also In re MS55, Inc., 477 F.3d 1131, 1137 (10th Cir. 2007).
Because the policy provisions were clear, the district court therefore did not abuse its
discretion by denying DISH’s Rule 56(d) request. 7
C. Certification
DISH also moved to certify the following question to the Colorado Supreme
Court:
Are the statutory damages allowed for violation of the
Telephone Consumer Protection Act, 47 U.S.C. § 227
(“TCPA”), punitive and thus uninsurable as a matter of
Colorado Public Policy?
Doc. 10781450 at 1.
7 DISH’s argument that the district court erroneously denied its Rule 56(d)
request for failure to comply with the District of Colorado’s local rules
mischaracterizes the court’s ruling. Although the district court noted in passing that
“DISH did not file a separate Rule 56(d) motion as required by D.C.COLO.LCivR
7.1(d),” it denied DISH’s request because the discovery sought was not necessary for
deciding the summary judgment motions. App., Vol. 7 at 1577.
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We deny the motion. Certification is appropriate if “the question before us (1)
may be determinative of the case at hand and (2) is sufficiently novel that we feel
uncomfortable attempting to decide it without further guidance.” Morgan v. Baker
Hughes Inc., 947 F.3d 1251, 1258 (10th Cir. 2020) (quotations omitted). The
question DISH seeks to certify is not novel or uncertain. We answered it in ACE.
III. CONCLUSION
We affirm the judgment of the district court. We also deny DISH’s motion to
certify a question of state law to the Colorado Supreme Court.
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