FILED
                                                                      United States Court of Appeals
                                       PUBLISH                                Tenth Circuit

                        UNITED STATES COURT OF APPEALS                         June 2, 2020

                                                                          Christopher M. Wolpert
                               FOR THE TENTH CIRCUIT                          Clerk of Court
                           _________________________________

    ROCKY MOUNTAIN PRESTRESS, LLC,

         Plaintiff - Appellant,

    v.                                                        No. 19-1169

    LIBERTY MUTUAL FIRE INSURANCE
    COMPANY,

         Defendant - Appellee.
                        _________________________________

                       Appeal from the United States District Court
                               for the District of Colorado
                            (D.C. No. 1:17-CV-03167-RPM)
                         _________________________________

Melissa R. Liff (Dennis B. Polk with her on the briefs) of Holley, Albertson & Polk, P.C.,
Lakewood, Colorado, for Plaintiff–Appellant.

Nicole K. Gorham (Brian J. Spano and Amy D. Wills with her on the brief) of Lewis
Roca Rothgerber Christie LLP, Denver, Colorado, for Defendant–Appellee.
                       _________________________________

Before HARTZ and EID, Circuit Judges. 
                   _________________________________

HARTZ, Circuit Judge.
                           _________________________________



 The late Honorable Monroe G. McKay, United States Senior Circuit Judge, heard
oral argument and participated in the panel’s conference of this appeal, but passed
away before its final resolution. The practice of this court permits the remaining two
panel judges, if in agreement, to act as a quorum in resolving the appeal. See United
States v. Wiles, 

, 1516, n* (10th Cir. 1997); 28 U.S.C. § 46(d).
      The subcontractor on a building project seeks coverage under the property

owner’s insurance policy for the subcontractor’s costs of repairing its faulty work.

The district court granted summary judgment in favor of the insurance company on

three independent grounds: (1) the subcontractor had not shown that the claimed loss

was fortuitous; (2) the claimed loss did not constitute “direct physical loss or

damage” as required for coverage under the policy, Aplt. App., Vol. I at 254; and (3)

even if there might otherwise have been coverage, the claimed loss fell within the

policy’s exclusion for defective workmanship. Exercising jurisdiction under 28

U.S.C. § 1291, we affirm the district court’s decision based on the defective-

workmanship exclusion.

      I.     BACKGROUND

      Colorado Center Development, LLC, the owner of certain property in Denver,

Colorado, hired J.E. Dunn Construction Company to construct an office building (the

Project) on the property. Colorado Center purchased from Defendant Liberty Mutual

Fire Insurance Company a Builder’s Risk insurance policy (the Policy). The Policy

provides protection against “direct physical loss or damage caused by a covered peril

to ‘buildings or structures’ while in the course of construction, erection, or

fabrication.” Aplt. App., Vol. I at 254. It defines covered perils as “risks of direct

physical loss or damage unless the loss is limited or caused by a peril that is

excluded.”

(Policies that cover “any fortuitous loss not resulting from an

excluded risk or from fraud by the insured” are often referred to as “all-risk” policies.

Adams-Arapahoe Joint Sch. Dist. No. 28-J v. Cont’l Ins. Co., 

, 774 (10th

                                            2
Cir. 1989).) One of the Policy’s exclusions is for “loss or damage consisting of,

caused by, or resulting from an act, defect, error, or omission (negligent or not)

relating to . . . design, specifications, construction, materials, or workmanship.”

This exclusion is itself subject to an exception: “[I]f an act, defect, error, or

omission as described above results in a covered peril, [Liberty] do[es] cover the loss

or damage caused by that covered peril.”

J.E. Dunn hired plaintiff Rocky Mountain Prestress, LLC

(RMP) as a subcontractor to perform work including “engineer[ing], supply[ing,] and

install[ing] all precast concrete components, connections, and erections aids” and

“[s]upply[ing] and install[ing] grout and/or patching of all connections required by

the engineering for the structural integrity of the precast.” Aplt. App., Vol. I at 125–

26. RMP began erecting precast columns at the site on February 1, 2016, finishing

this work on June 10, 2016. But because of “potential concerns that arose at another

project” relating to “sinking pillars/columns,” J.E. Dunn requested RMP to retain a

third-party engineering firm to investigate “potential structural issues” with RMP’s

work on the Project.

The engineering firm concluded that the Project

required “repairs to insufficiently grouted joints between precast concrete column

and pilaster elements” at 264 locations throughout the structure.

It

submitted a plan detailing the regrouting repairs that would be required at the various

faulty joints. It did not note any other structural issues with the Project or describe

any other repairs that would be needed. The engineering firm began its investigation

in August 2016, and the final grouting repair work was completed in February 2017.

                                            3
       In the meantime, in November 2016, RMP submitted a claim to Liberty

seeking coverage under the Policy.1 Liberty’s loss-investigation notes from

November 2016 reflect the difficulty it experienced in attempting to gather more

information about the nature and basis of RMP’s claim. On January 3, 2017, a

Liberty loss investigator summarized his understanding of the claim:

       In review of the documents submitted the damage deals with sinking
       pillars/columns. The investigation by the structural engineering firm was
       requested by [RMP] and was “based on potential concerns that arose at
       another project and at the request of JE Dunn”. The . . . report [by the
       third-party] structural engineer[] indicates “insufficiently grouted joints
       between precast concrete column and pilaster elements” are being
       investigated. The joints are being shimmed and regrouting repairs appear
       to be underway. The plans that have been provided indicate that there are
       264 locations throughout the structure that are being addressed.

       In March 2017 the loss investigator traveled to Denver to inspect the building

himself. The appellate appendix prepared by RMP contains no indication of any

further activity by either party on the claim until December 2017, when RMP filed a

lawsuit in Colorado state court against Liberty. The appendix also contains no

indication that the Project required any repairs other than the regrouting remediation

work recommended by the third-party engineering firm.

       In its complaint RMP raised four claims for relief: (1) breach of contract, (2)

insurance bad faith, (3) statutory damages for insurance bad faith, and (4) declaratory

judgment on the question of insurance coverage. Liberty removed the action to the



1
 Liberty contends that RMP was not an additional insured under the Policy. But we
need not resolve that issue because the Policy does not cover the loss anyway.
                                             4
United States District Court for the District of Colorado based on diversity

jurisdiction.

       Following written discovery, Liberty filed a motion for summary judgment.

RMP opposed the motion on the merits; it did not request additional time for

discovery or inform the court under Fed. R. Civ. P. 56(d) that it was unable to present

facts essential to its opposition. The district court agreed with Liberty that RMP’s

claimed loss from the regrouting remediation work was not entitled to coverage under

the terms of the Policy and accordingly granted summary judgment in favor of

Liberty.

       II.      DISCUSSION

       “We review the district court’s grant of summary judgment de novo, applying

the same standards that the district court should have applied.” Tesone v. Empire

Mktg. Strategies, 

, 994 (10th Cir. 2019) (internal quotation marks and

brackets 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). In applying this test, “we

consider the evidence in the light most favorable to the non-moving party.” 

(internal quotation marks omitted). For there to be a “‘genuine’”

dispute of fact, “there must be more than a mere scintilla of evidence”; “[t]o avoid

summary judgment, the evidence must be such that a reasonable jury could return a

verdict for the nonmoving party.” Vitkus v. Beatrice Co., 

, 1539 (10th

Cir. 1993). Thus, “unsupported and conclusory statement[s] . . . , even from experts,

                                           5
are insufficient to defeat summary judgment,” Roberts v. Jackson Hole Mountain

Resort Corp., 

, 977 (10th Cir. 2018), and “[s]ummary judgment may be

granted if the evidence is merely colorable or is not significantly probative,” 

.

      The parties agree that this diversity case is governed by the substantive law of

Colorado. When Colorado law has not addressed the specific issue before us, our

task is to predict how the Colorado Supreme Court would rule. See Siloam Springs

Hotel, L.L.C. v. Century Sur. Co., 

, 930–31 (10th Cir. 2018). To make

this prediction, we may look to “lower state court decisions, decisions of other states,

federal decisions, and the general weight and trend of authority.”

internal quotation marks omitted). “A federal district court’s state-law

determinations are entitled to no deference and are reviewed de novo.”

(internal quotation marks omitted).

      Under Colorado law, “[a]n insurance policy is merely a contract that courts

should interpret in line with well-settled principles of contract interpretation.”

Cyprus Amax Minerals Co. v. Lexington Ins. Co., 

, 299 (Colo. 2003).

One of these well-settled principles is the rule that “a court should seek to give effect

to all provisions so that none will be rendered meaningless.” Pub. Serv. Co. of Colo.

v. Wallis & Cos., 

, 933 (Colo. 1999) (internal quotation marks omitted).

“In undertaking the interpretation of an insurance contract, courts should be wary of

rewriting provisions, and should give the words contained in the contract their plain

and ordinary meaning, unless contrary intent is evidenced in the policy.” Cyprus

                                            6


. “However, because of the unique nature of insurance contracts

and the relationship between the insurer and insured, courts do construe ambiguous

provisions against the insurer and in favor of providing coverage to the insured.”

in a contract are ambiguous when they are susceptible to more than one

reasonable interpretation.” Hecla Mining Co. v. N.H. Ins. Co., 

, 1091

(Colo. 1991). Although an ambiguous term must be construed broadly in favor of the

insured, this “does not mean that we must adopt [the insured’s] views wholesale.”

Colo. Pool Sys., Inc. v. Scottsdale Ins. Co., 

, 1270 (Colo. App. 2012).

“On the contrary, we must ensure that any interpretation of [the ambiguous term]

comports with the policy’s remaining provisions.”

bears the initial burden of demonstrating coverage under the

policy. See Rodriguez ex rel. Rodriguez v. Safeco Ins. Co. of Am., 

, 853

(Colo. App. 1991). The burden then shifts to the insurer to prove the applicability of

an exclusion from coverage; if the insurer makes this showing, the burden shifts back

to the insured to show an exception to any coverage exclusion. See

contains an exclusion for “loss or damage consisting of, caused by,

or resulting from an act, defect, error, or omission (negligent or not) relating to[]

design, specifications, construction, materials, or workmanship.” Aplt. App., Vol. I

at 265. RMP does not dispute that the loss it claims here consists of or resulted from

a defect in the workmanship or materials it used in grouting the joints of the precast

concrete elements it installed at the Project. Nevertheless, RMP argues that coverage

is restored by the resulting-loss exception to this exclusion, which provides: “[I]f an

                                            7
act, defect, error, or omission as described above results in a covered peril, [Liberty]

do[es] cover the loss or damage caused by that covered peril.”

out

that covered peril is defined as a risk of loss or damage that is not caused or limited

by an “excluded” peril,

and it argues that the Policy’s language is thus

circular, inconsistent, and ambiguous, requiring this court to interpret the Policy in

favor of coverage for all of RMP’s costs of remediating its faulty workmanship.

      The case law does not support RMP. Several courts have concluded that the

above-quoted and similar resulting-loss exceptions function to restore coverage only

“when an excluded peril leads to loss from an independent non-excluded peril.”

KAAPA Ethanol, LLC v. Affiliated FM Ins. Co., 

, 302 n.1 (8th Cir. 2011)

(internal quotation marks omitted). For instance, in Viking Construction, Inc. v. 777

Residential, LLC, 

, 658 (Conn. App. Ct. 2019), a Connecticut appellate

court considered an identical resulting-loss exception in a Liberty Builders’ Risk

policy that excluded damages for losses caused by renovation work. The court

rejected the insureds’ argument that the resulting-loss exception restored coverage for

damages sustained when the windows of a building were inadvertently sprayed with a

harmful cleaner during the course of renovation.

665. The court reasoned

that this exception comes into play only when there are at least two causes of a loss,

one covered and one excluded:

      On the basis of the plain language of the resulting loss clause in the present
      case, a loss caused by an act during a renovation will be covered if the act
      causes a covered peril, such as a fire, and that latter peril damages the
      building. In the present case, there was only one cause of the [insureds]’
      loss—the spraying of the building, which caused damage to the windows—

                                            8
      and because that was not a covered peril, the resulting loss clause does not
      apply.

In support of this conclusion, the Connecticut court cited favorably an

unpublished decision from this court applying Colorado law, see

in which

we affirmed the district court’s interpretation of a resulting-loss exception as

“provid[ing] for coverage only when the excluded cause . . . becomes a new causal

agent that itself causes resultant property damage,” Travelers Indem. Co. v. Bd. of

Cty. Comm’rs, 508 F. App’x 733, 734–35 (10th Cir. 2013) (internal quotation marks

omitted).

      Likewise, the district court in Balfour Beatty Construction, LLC v. Liberty

Mutual Insurance Co., 

, 845 (S.D. Tex. 2018), concluded that an

identical exception in a Liberty Builders’ Risk policy would come into play only if

there were “at least two loss events.” The court explained: “Since a peril cannot be

simultaneously excluded and covered, the clause must be referring to two separate

perils, one excluded and one covered.”

the case before the court, where

molten metal particles from the operations of a welding subcontractor on a building

fell down the side of the building and damaged windows on the building, see

the window damage was not covered by the policy because the claimed loss was

based solely on the excluded peril of defective construction, see

The court

noted that its interpretation of the policy did not render impotent the exception to the

exclusion. “If ‘an act, defect, error, or omission (negligent or not) relating to

construction’ caused holes in the windows, and a subsequent rainstorm caused water


                                            9
to enter through the holes and damage the interior finishes, then there would be an

excluded peril (the act relating to construction) resulting in a covered peril (water

entering through the holes and damaging the interior).”

(ellipsis

omitted).

      To be sure, courts have not been entirely consistent in their interpretations of

similar resulting-loss exceptions, but not in any way helpful to RMP. For instance,

one line of cases holds that there is coverage only if the first, excluded cause results

in a separate, covered cause in an unforeseeable way, as when a water leak caused by

defective construction shorts an electrical socket and causes a fire, but not when the

second cause is the foreseeable result of the first, excluded cause, as when defective

construction causes a water leak that in turn causes water damage. See TMW Enters.,

Inc. v. Fed. Ins. Co., 

, 579 (6th Cir. 2010) (holding that the role of the

resulting-loss exception is to prevent the insurer from “avoid[ing] coverage for losses

remotely traceable to an excluded cause,” but not to cover foreseeable results of the

excluded cause). Other courts have suggested that there only needs to be a separate,

intervening cause, regardless of its foreseeability. See, e.g., Alton Ochsner Med.

Found. v. Allendale Mut. Ins. Co., 

, 507 (5th Cir. 2000) (noting that an

all-risk policy would cover damages sustained when insufficiently secured arches

blew down in wind, as wind was an intervening cause that combined with defective

workmanship to trigger damage); see also GTE Corp. v. Allendale Mut. Ins. Co., 

, 614 n.18 (3d Cir. 2004) (describing different approaches to this issue but

declining to resolve dispute because insured was not entitled to coverage under either

                                           10
interpretation). Still others have discerned no need to address how unforeseeable or

separate the second cause must be to trigger coverage under the exception. See, e.g.,

Travelers, 508 F. App’x at 734–35. Finally, some courts have interpreted certain

resulting-loss clauses to permit coverage for any damage that results from defective

workmanship, even if there is no “separate” and “independent” cause, so long as the

claimed loss is not the defective workmanship itself. See, e.g., Leep v. Trinity

Universal Ins. Co., 

, 1084–85 (D. Mont. 2017); Kesling v. Am.

Family Mut. Ins. Co., 

, 1282–84 (D. Colo. 2012).

      Regardless of how broadly courts interpret “resulting” losses under such

exceptions, however, they are all in agreement on one overarching principle: the

exception cannot be allowed to swallow the exclusion. Thus, a resulting-loss

exception to a defective-workmanship exclusion does not provide coverage for the

costs of repairing or replacing defectively designed or constructed parts of a

structure; rather, the exception only restores coverage for damage sustained when the

defective workmanship becomes the cause of additional, separate damage. See, e.g.,

Travelers, 508 F. App’x at 734–35 (affirming district court’s conclusion that damage

to roof structures from a combination of construction defects and snow weight was

not covered by resulting-loss exception because the claimed loss was damage to the

defectively constructed roof itself, rather than damage to other property caused by the

defective roof); Alton 

(“As a matter of perspective we must

remain mindful that the policy does not cover the costs of ‘making good’ defective

construction. For example, if shoddy plumbing work caused pipes to break and a

                                          11
building to flood, damaging the carpet, the policy would cover the cost of replacing

the carpet but not the cost of repairing or replacing the shoddy plumbing job.”

(footnote omitted)); 

–85 (finding ambiguity in question

of whether resulting damage must be separate and independent from excluded cause,

but noting that excluded cause itself would not be covered: “If, for example, the

entire roof had been improperly installed in this case, and remediation required the

complete tear-off and reinstallation of the roof,”

then this substantial

remediation cost would be excluded regardless of the resulting-loss exception);

–84 (holding that costs to repair or replace defective

deck, roof, and crawlspace were not covered by policy because restoring coverage for

these costs would permit exclusion to swallow the exception; exception only covered

“damage to [other] parts of the home . . . resulting from water or moisture infiltration

resulting from the defective construction,”

See generally 11 Steven Plitt

et al., Couch on Insurance (3d ed. Rev. 2017) § 153:2, p. 153-11 n.8 (“Ensuing loss

clauses ensure that if one of the specified uncovered events takes place, any ensuing

loss which is otherwise covered by the property insurance policy will remain

covered; the uncovered event itself, however, is never covered.”).

      We are persuaded that Colorado would likewise conclude that the insurance

policy in this case cannot be interpreted in a way that would permit the exception to

swallow the exclusion. RMP provides no reasonable interpretation by which the

resulting-loss exception’s restoration of coverage for “loss or damage caused by [a]

covered peril” that “results” from excluded defective workmanship, Aplt. App., Vol.

                                           12
I at 265, could somehow turn the excluded defective workmanship itself into a

covered peril. A covered peril by definition is a peril that is not excluded, and thus

by definition defective workmanship is not a covered peril, even if it may trigger a

covered loss as a new causal agent or in combination with another cause. If defective

workmanship were considered an exception to the exclusion for defective

workmanship, then this entire provision would be rendered superfluous, contrary to

basic principles of contract interpretation. See Pub. Serv. 

. By

contrast, Liberty’s suggested interpretation of this provision—that coverage may be

extended to other property damage that results from defective workmanship, but not

to the defective workmanship itself—is a reasonable interpretation that gives effect to

all the policy’s provisions and is consistent with the decisions of numerous other

courts that have considered identical or similar provisions.

      Although courts may differ on the question of how unforeseeable and separate

any resulting damage must be for the resulting damage to be covered, there is no

ambiguity on the question of whether the excluded defective workmanship can itself

be counted as covered resulting damage. See 

–85; see

also 

(“Terms used in a contract are ambiguous when they

are susceptible to more than one reasonable interpretation.” (emphasis added)).

Accordingly, RMP cannot receive coverage under the policy for its costs of




                                           13
regrouting and otherwise repairing the joints that were not properly grouted in the

first instance.2

       RMP contends that it is nevertheless entitled to coverage for at least some

amount of loss because the insufficiently grouted joints resulted in other damage to

the Project. But the only evidence RMP cites in support of this argument is the

statement made by Liberty’s loss investigator, summarizing his understanding of the

claim materials he had received from RMP, that “the damage deals with sinking

pillars/columns,” that “potential concerns that arose at another project” had given rise

to an investigation into “insufficiently grouted joints” at the Project, and that

“regrouting repairs appear to be underway.” Aplt. App., Vol. I at 321 (internal

quotation marks omitted). RMP contends that this statement proves that the Project

sustained damage outside of the defective joints themselves, thus entitling RMP to

coverage under the resulting-loss exception.

       We conclude that the loss investigator’s brief, unclear reference to sinking

pillars or columns is not substantial enough to create a genuine dispute of material

fact on this issue. First, the loss investigator had no firsthand knowledge of the

matter; he was simply summarizing his understanding of the materials he had

received from RMP, and these materials themselves do not indicate that there was

any sinking of pillars or columns at the Project but rather indicate only that sinking at



2
 RMP’s reliance on Adams-Arapahoe as contrary authority is misplaced. In that case
defective design or construction was a covered risk under the policy. 

.
                                           14
other projects had triggered an investigation into RMP’s work at the Project. Second,

this brief reference to sinking pillars and columns is conclusory and unsupported by

any details or other facts in the record. See 

. Finally, even

if a jury could somehow rely on this conclusory, vague statement as evidence that

pillars or columns were sinking at the Project, RMP has not presented any evidence

from which a jury could find that this supposed sinking caused RMP to incur an

actual loss outside of the costs of repairing its own defective workmanship at the

insufficiently grouted joints. Indeed, the loss investigator’s statement relied on by

RMP itself indicates that the only repairs were to the joints. Likewise, the third-party

engineering firm’s report detailed problems with the joints and explained the repairs

that would be required for each joint, but it did not note any other problems or

recommend any other repairs. And RMP has provided no invoices or other evidence

of costs it incurred in repairing anything other than the joints. As noted by the

district court, RMP’s failure to provide supporting evidence is particularly significant

because, “as the contractor who made the repairs, RMP should be in possession of

evidence regarding the extent to which the columns were in fact sinking.” Aplt.

App., Vol. II at 566. Thus, all the specific evidence in the record points to one

conclusion: RMP’s claimed loss was based solely on its costs of remediating its own

defective workmanship. The lone piece of evidence RMP relies on to establish a

genuine dispute of material fact—the loss investigator’s single, unclear reference to

“sinking pillars/columns,” Aplt. App., Vol. I at 321—is simply not substantial or

probative enough that it could sustain a jury verdict in RMP’s favor. At best, this

                                          15
evidence was “merely colorable.” 

. The district court did not

err in granting summary judgment in favor of RMP.

      Finally, RMP argues that if it did not present sufficient evidence of resulting

damage to other parts of the Project, then this is only because it did not have a

sufficient opportunity for discovery before the district court granted summary

judgment. This argument fails because RMP did not invoke Rule 56(d) to seek

additional time for discovery below. Under Rule 56(d), a party that cannot yet

“present facts essential to justify its opposition” may ask the court to deny or defer

ruling on a summary-judgment motion, to grant additional time for discovery, or to

order other appropriate relief. Fed. R. Civ. P. 56(d). But “Rule 56(d) is not self-

executing. A party must invoke it.” Jones v. Secord, 

, 6 (1st Cir. 2012).

Although summary judgment “should be refused” under Rule 56(d) “where the

nonmoving party has not had the opportunity to discover information that is essential

to his opposition,” we have emphasized that “this protection arises only if the

nonmoving party files an affidavit explaining why he or she cannot present facts to

oppose the motion.” Dreiling v. Peugeot Motors of Am., Inc., 

, 1376

(10th Cir. 1988) (brackets and internal quotation marks omitted). A nonmovant

opposing a summary-judgment motion must either demonstrate a genuine dispute of

material fact “in a timely fashion” “or explain why it cannot pursuant to Rule

56([d]).” Adler v. Wal-Mart Stores, Inc., 

, 672 (10th Cir. 1998).

“Otherwise, the nonmovant acts, or fails to act, at its peril.”

to

invoke Rule 56(d) at its peril. Because RMP did not alert the district court to this

                                           16
possible discovery issue below, we hold that the court did not err in granting

summary judgment based on the evidence and arguments presented to it by both

parties. See 

–77.

      In sum, RMP points to no evidence from which a reasonable jury could find

that it sustained a loss beyond its costs of repairing its own faulty workmanship in the

grouting of joints. This claimed remediation loss unambiguously falls within the

Policy’s exclusion for defective workmanship, and the Policy’s resulting-loss

exception does not restore coverage for this expressly excluded cause; any contrary

interpretation would contradict the terms of the Policy and permit the exception to

swallow the rule. Because we affirm the district court’s summary-judgment ruling on

this basis, we need not address Liberty’s alternative arguments for affirmance.

      III.   CONCLUSION

      We AFFIRM the district court’s entry of summary judgment in favor of

Liberty.




                                          17