FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
April 7, 2009
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
SHAWNEE LODGING, LLC,
Plaintiff-Counter-
Defendant-Appellant,
v. No. 08-6121
(D.C. No. 5:07-CV-00962-HE)
CERTAIN UNDERWRITERS AT (W.D. Okla.)
LLOYD’S, LONDON, subscribing to
POLICY NO. LLP601598/BCM4766,
Defendant-Counter-
Claimant-Appellee.
ORDER AND JUDGMENT *
Before TACHA, MURPHY, and HARTZ, Circuit Judges.
Shawnee Lodging, LLC (“Shawnee”) appeals from the district court’s
decision granting summary judgment in favor of Certain Underwriters at Lloyd’s,
London, subscribing to Policy No. LLP601598/BCM4766 (“Lloyd’s” or
*
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); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
“Defendant”), on Shawnee’s claims that Lloyd’s breached the insurance contract
and acted in bad faith. We affirm.
I. BACKGROUND
On May 10, 2004, Shawnee submitted a claim under its policy with Lloyd’s
for hail damage to the roof of Shawnee’s property, the Best Western Cinderella
Inn. 1 Jane Nicholson was assigned to the claim and made her first inspection of
the property on May 19. Shawnee signed a sworn statement in proof of loss on
July 8 and was issued a check for $183,849.05. Shawnee signed a second sworn
statement in proof of loss on August 31, and another check was issued in the
amount of $55,827.84. That same day, Shawnee confirmed with Ms. Nicholson
that it had received both checks and indicated that it was going to contact
All American Roofing Company to begin repairs to the roof. On September 24,
Ms. Nicholson contacted Shawnee to find out if the roof was finished. She
discovered that Shawnee had decided not to use All American and, instead, was in
the process of securing alternate bids from other roofing contractors.
Shawnee signed a contract with Better Roofing in mid-December 2004 and
work began on the roof in January 2005. The roof was reinspected by
Ms. Nicholson on March 2 to confirm that a new roof had been installed.
1
Chandrakant “Jay” Brahmbhatt is the sole owner of Shawnee Lodging LLC,
which owned the Best Western Cinderella Inn. For purposes of this order and
judgment, we will use “Shawnee” to refer to Mr. Brahmbhatt and the plaintiff
limited liability company.
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Shawnee then submitted an invoice dated March 10 from Allied Construction in
the amount of $343,608.00 for roof repairs. Based on this invoice, an additional
payment of $106,287.53 was made to Shawnee. Shawnee also received a payment
in the amount of $117,907.99 for loss of business revenue. 2 The total amount
paid to Shawnee on its claim was $466,393.46.
In August 2007, Shawnee filed a complaint against Lloyd’s. Lloyd’s filed a
counterclaim. Lloyd’s then moved for summary judgment on Shawnee’s claims
for breach of contract and bad faith. The district court granted summary
judgment in favor of Lloyd’s on Shawnee’s claims. This appeal followed. 3
II. DISCUSSION
We review the district court’s grant of summary judgment de novo, viewing
the evidence in the light most favorable to Shawnee, the nonmoving party. See
Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1167 (10th Cir. 2007).
Summary judgment is appropriate “if the pleadings, the discovery and disclosure
2
Shawnee further received a supplemental payment in the amount of
$2,521.05 for additional repairs to window glass and one additional skylight.
3
After the district court entered its summary-judgment order, the parties
filed a stipulated dismissal without prejudice of Defendant’s counterclaim. The
district court then entered judgment, and Shawnee appealed. Because
Defendant’s counterclaim was not adjudicated on the merits, this court did not
take jurisdiction under 28 U.S.C. §1291. See Heimann v. Snead, 133 F.3d 767,
769 (10th Cir. 1998). In response to this court’s jurisdictional show-cause order,
Shawnee moved the district court for certification under Fed. R. Civ. P. 54(b),
and it was granted. The notice of appeal ripened on the date of the Rule 54(b)
certification, thereby permitting this court to take jurisdiction over the appeal.
See Lewis v. B.F. Goodrich Co., 850 F.2d 641, 645 (10th Cir. 1988).
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materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(c).
Shawnee argues that the district court erred in granting summary judgment
in favor of Lloyd’s because there are genuine issues of material fact in dispute.
Shawnee argues further that the district court erred by evaluating the credibility
of Shawnee’s expert, Ron Crain. Based on our review of the briefs, the record,
and the applicable legal authority, we conclude that the district court correctly
determined that Shawnee failed to create a genuine issue of material fact on its
claims for breach of contract and bad faith. We note that the district court did not
evaluate the credibility of Mr. Crain but rather concluded correctly that his
conclusory deposition testimony was insufficient to raise a genuine issue of
material fact. Accordingly, we affirm the district court’s decision for
substantially the same reasons set forth in its Order dated April 17, 2008.
III. CONCLUSION
The judgment of the district court is AFFIRMED.
Entered for the Court
Harris L Hartz
Circuit Judge
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