UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

_________________________________ SUNFLOWER CONDOMINIUM ASSOCIATION, INC., a Colorado nonprofit corporation, Plaintiff Counter Defendant - Appellant,

v. OWNERS INSURANCE COMPANY, Defendant Counterclaimant - Appellee. No. 18-1478 (D.C. No. 1:16-CV -02946-WJM-NYW) (D. Colo.)

_________________________________ ORDER AND JUDGMENT *

_________________________________ Before BRISCOE , LUCERO , and EID , Circuit Judges.

_________________________________ This is an insurance ca se first brought in state court but then removed to federal court under diversity jurisdiction, 28 U.S.C. § 1332. Plaintiff Sunflower Condominium Association (S unflower) filed this action against Owners Insurance Company (Owners) claiming that Owners breached a policy of commercial property coverage and commercial general liability insurance, and also engaged in common law and statutory bad faith, by failing to fully cover an incident of hail damage that

* This order and judgmentis not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. Itmay be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### February 7, 2020 Christopher M. Wolpert Clerk of Court2 occurred to Sunflower’s condominium co mplex. Owners filed a counterclaim alleging that Sunflower violated the terms of the policy by (a) failing to timely report the hail damage, and (b) submitting a claim and proof of loss that grossly overstated the cost of repairing the hail damage. Th e district court gran ted summary judgment in favor of Owners on all of Sunflower’s claims. The case then proceeded to trial on Owners’ counterclaim, and the jury found in favor of Owners. The district court entered final judgment in favor of Owners. Sunflower now appeals, arguing that the district court (1) erroneously instructed the jury to impute fraudulent intent to Sunflowe r through the conduct of its independent contractors, (2) erred in denying Sunflower’s Rule 50 motion for judgment as a matter of law (JMOL), (3) er red in concluding that the policy afforded Owners a recoupment remedy, (4) denied Sunf lower a fair trial as the result of two erroneous evidentiary rulings, and (5) erre d in granting summary judgment in favor of Owners on all of Sunflower’s claims. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reject all of these arguments and affirm the judgment of the district court.
I Factual background Sunflower is a nonprofit, multi-fami ly homeowners association that is incorporated under the laws of the State of Colorado. Sunflower oversees twentythree separate multi-family condominiu m buildings containi ng over 100 individual housing units, a clubhouse, a nd six detached garage bu ildings (collectively the3 Sunflower Property). Sunflower has a boa rd of directors comprised of volunteer members. Client Preference Realty & Manageme nt, LLC (Client Preference), acting pursuant to a contract with Sunflower, ha ndled the day-to-day management of the Sunflower Property. Under the terms of th e contract between Sunflower and Client Preference, Sunflower agreed to pay Client Preference a 4% special projects fee for projects at the Sunflower Prope rty that cost over $300,000.00. In 2011, Client Preference assigned employee Denyse Countryman to be the property manager for the Sunflower Propert y. Countryman did not maintain an office on-site at the Sunflo wer Property, but instead visited the Sunflower Property approximately three times per month. Countryman regularly conducted property inspections, but primarily looked for covena nt violations duri ng those inspections. In 2013, Sunflower purchased from Own ers an insurance policy (the Policy) providing commercial propert y coverage and commercial ge neral liability coverage. The term of the Policy extended from Novemb er 12, 2013, to November 12, 2014. Owners, prior to issuing the policy, inspected the Sunflowe r Property to determine its condition and verify that it was appropriate to insure. On September 29, 2014, a severe wind and hailstorm damaged portions of the common areas of the Sunflower Property. In particular, the stor m resulted in hail damage to roofs, gutters, and screens on the condominium and garage structures. 1

1 According to the record , the Sunflower Property wa s previously damaged by hail storms in June 2009 and June 2012.4 Countryman was not at the Sunflower Proper ty at the time of th e storm and allegedly has no recollection of the storm. Further, Countryman was allegedly not contacted after the storm by anyone at Sunflower re garding property dama ge sustained during the storm. In April 2015, Countryman hired a roofi ng contractor, R3NG, Inc. (R3NG), to prepare a proposal to fix a leaking roof on one of the individual housing units at the Sunflower Property. Jason Domecq, th e R3NG employee/owner who prepared the proposal, observed what appeared to be hail damage on the roof and made a note to that effect in his written pr oposal, immediately below his detailed descriptions of the items that needed to be repaired. Domecq stated in his note: “There is evidence of hail impacts on both the flat and steep roofs and it is recommended that your insurance company be contacted immediately. You may ha ve a claim.” Restricted App., Vol. 1 at 192. On April 27, 2015, Countryman forwarded R3NG’s proposal to every board member via email, with instructions to review and approve the proposal. Every board member responded to Countryman ’s email and approve d the proposal. On September 24, 2015, Countryman was at the Sunflower Property and observed damage to downspouts and window trims. Countryman contacted Adjusters International Matrix Business Consulting (M atrix) to inspect th e Sunflower Property and determine the extent and cause of the damages. On October 7, 2015, Countryman met a Matrix employee, Fred Mahe, at the Sunflower Property for purposes of conducting an inspection. Mahe concluded that there was significant hail damage to the Sunflower Property th at needed to be repaired.5 At a board meeting in late Octobe r of 2015, Countryman presented the information she had received from Matrix and received approval from the Board to hire Matrix and proceed with filing a clai m with Owners for the hail damage. On November 19, 2015, the Board met and execu ted a written contract with Matrix. Under the terms of that contract, Matrix was to receive 10% of any amount paid by Owners to Sunflower. Countryman in turn hired R3NG to he lp Matrix establish the scope of the damage and the amount of the claim to be submitted to Owners. Countryman agreed, on behalf of Sunflower, to pay R3NG for its work. Dave Ford, a public adjuster employe d by Matrix, worked together with Domecq from R3NG to prepare a proof of lo ss for the Sunflower Property. Together, Ford and Domecq estimated that the cost of repairi ng the hail damage to the Sunflower Property was approxi mately 1.8 million dollars. On December 20, 2015, Sunflower notif ied its insurance ag ent regarding the damages resulting from the stor m. Owners, after learning of the damages, responded by hiring an independent adjuster named Gary Stevens. Steven s met Ford at the Sunflower Property and, after examining th e Sunflower Property, agreed on the scope of damage that was sustained by the Sunflower Property. On May 4, 2016, Ford sent Owners a “S worn Statement In Proof of Loss” that included the estimate that wa s prepared by Ford and Dom ecq. Sondra Kalcevic, the board president, signed the statement. Th e statement alleged th at the loss occurred6 “about the 29th day of September 2014” due to “Wind and Hail.” ECF No. 94, Exh. M at 5. After receiving Sunflowe r’s statement, Owners hi red an engineer and a building consultant to assist in reviewing the statement. The e ngineer inspected the Sunflower property and found ha il damage to several of the roofs. She was allegedly unable, however, to determine when the hail damage occurred. More specifically, she could not differentiate between hail da mage from the September 2014 storm and prior hail storms in 2009 and 2012. Stevens, the independent adjuster hi red by Owners, ultimately concluded that the replacement cost value of the da mage to the Sunflower Property was $857,233.89, and that the actual cash value was $590,45 8.91. In August 2016, Owners made a payment of $515,458.10 to S unflower in an atte mpt to resolve the claim. This payment repres ented the actual cash value estimated by Stevens, minus Sunflower’s $75,000 deductible. In April 2017, Owners ma de an additional payment to Sunflower in the amount of $92,000.00. Procedural background On September 28, 2016, Sunflower filed a complaint against Owners in Colorado state district court. The first cl aim for relief alleged that Owners breached the insurance contract by failing to pay S unflower for all damage s it sustained from the September 29, 2014 storm. The second claim for re lief sought a declaratory judgment regarding Sunflower’s right to “cove rage for the cost of necessary repairs to [the Sunflower Property] less the applicable deductible.” Aplt. App., Vol. 1 at 54.7 On December 2, 2016, Owners removed th e case to the United States District Court for the District of Colorado on the basis of diversity of citizenship. Sunflower amended its complaint thre e times after removal. The third amended complaint included the original claims for breach of contract and declaratory judgment, and included two ne w claims: statutory bad faith under Colo. Rev. Stat. §§ 10-3-1115, -1116, a nd common law insurance bad faith. Owners, in its answer to the third amended complain t, asserted as a defense that Sunflower’s claims were “barred in whole or in part as a result of [Sunflower’s] misrepresentations, false statements, and non-cooperation with Owners.” ECF No. 66 at 8. This defense relied on provis ions of the Policy that precluded coverage in the event that the insured concealed or misrepre sented a material fact or otherwise committed fraud (hereinafter Fraud Clauses). The first of those Fraud Clauses stated: “This Coverage Part [i.e., Commercial Pr operty coverage] is void in any case of fraud by you as it relates to this Coverage Pa rt at any time. It is also void if you or any other insured, at any time, intentionally conceal or mi srepresent a material fact . . . .” Aplt. App., Vol. 20 at 5700. A re lated provision likewise stated, in pertinent part: “We will not pay for any loss or dama ge in any case of: 1. Concealment or misrepresentation or a material fact; or2. Fraud committed by you or any other insured (‘insured’) at any time and rela ting to coverage under this policy.” Id. at 5718. Owners alleged that Sunflo wer violated the Fraud Clauses by misrepresenting the date when it first learned of the hail damage to the Property, and also by misrepresenting the amount needed to repair the damage. Owners also8 asserted, in pertinent part, a counterclaim against Sunflo wer for breach of the Fraud Clauses. The parties filed cross motions for su mmary judgment. Sunflower moved for partial summary judgment with respect to Owners’ conceal ment, misrepresentation or fraud defense and Owners’ counterclaims for fraud and recoupment. Sunflower argued that Owners could not prove that th e date Sunflower had alleged it first discovered the hail damage wa s false, or that Sunflower intended Owners to take any specific action as a result of the date of discovery. Sunflower also argued that Owners could not prove that the R3NG/Ford es timate of damages was a material fact or that Owners was ignorant of its falsity. Owners, for its part, moved for summary judgment with respect to al l of Sunflower’s claims. On May 14, 2018, the district court issued a written or der addressing both motions for summary judgment. The distri ct court denied Sunflower’s motion for summary judgment on Owners’ counterclaims in its entirety. In doi ng so, the district court concluded that, as to the alleged untimely reporti ng of the insurance claims, Owners’ ignorance of the falsity of Sunflowe r’s date of discovery was not an element of Owners’ claim that Sunflower violated the Policy’s Fraud Clauses. The district court further concluded thatthe date Sunflower actually discovered the damage was “‘reasonably relevant’ to [Owner s’] investigation, given thatit form[ed] the basis of [Owners’] late notice claim,” and “that ‘reasonable mi nds could differ’ regarding the materiality of the misrepresent ations.” ECF No. 149 at 10-11. The district court also concluded that, based upon the evidence befo re it, “a reasonable jury could find that9 [Sunflower] knowingly and deliberately misr epresented the date of discovery to [Owners], implying that [Sunflower] ac ted with the intent to deceive.” Id. at 11. As for Owners’ defense and count erclaim that Sunflower knowingly misrepresented the cost of repairing the damages in its proof of loss, the district court concluded it was immaterial whether, in fact, Owners a ttached any importance to Sunflower’s estimate. Instead, the di strict court concluded the question was “whether a reasonable insurance company w ould attach importance to the matter.” Id. at 12. The district c ourt concluded that “a reasonable jury could find that a reasonable insurance company could attach importance to [Sunflower’s] cost of repair estimate.” Id. The district court rejected as immaterial Sunflower’s argument that Owners was long wary of the truthful ness of Sunflower’s estimate. And, ultimately, the district court denied Sunf lower’s motion for summa ry judgment after concluding that genuine issues of materi al fact existed thatprecluded granting summary judgment on this defense/counterclaim. As for Owners’ motion for summary judgment, th e district court first concluded that “a re asonably diligent property mana ger” in Countryman’s position “would have read the e-mail [from Domecq regarding the hail damage] at the time it was received,” and that, consequently, Sunf lower “was on notice of the damage” at the time Countryman “re ceived Domecq’s “April 2015 e-mail” and “the prompt notice provision [of the Policy] was [also] triggered.” Id. at 16. The district court further concluded “that no reasonable jury c ould find that [Owners] waived its late notice defense.” Id. at 17. The district court also concluded that Owners “met its10 burden to show that it was prejudiced by the delayed notice” from Sunflower. Id. at 20. The district court thus conclude d that “there [wa]s no genuine issue of material fact that [Sunflower] violat ed the notice-prejudice rule” and that, consequently, Owners was entitl ed to summary judgment in its favor “with respect to [Sunflower’s] breach of contract claims.” Id. at 21. The district court also concluded that, because Sunflower’s breach of contra ct claims failed, Own ers was entitled to summary judgment with re spect to Sunflower’s bad faith claims as well. On October 15, 2018, the case proceeded to trial on Owners’ counterclaim for breach of the Fraud Clauses. After hearing five days of evidence, the jury found in favor of Owners on its counterclaim. Final judgment in the case was entere d on November 15, 2018. The judgment stated, in pertinent part: “j udgment is entered in favor of Defendant-Counterclaimant Owners Insurance Company and against Pl aintiff-Counterclaim Defendant Sunflower Condominium Association, Inc., in th e principal amount of $608,409.96 with prejudgment interest of $105,352.18, for a total of $713,762.14, with post-judgment
interest at the federal st atutory rate of 1.52% until paid.” ECF No. 237 at 1. Sunflower filed a time ly notice of appeal.
II Sunflower raises five issues on appeal. We conclude, as discussed in greater detail below, that all five i ssues lack merit. Consequen tly, we affirm the judgment of the district court.11 1) Did the district court err in instru cting the jury to impute fraudulent intent to Sunflower through the co nduct of R3NG and Domecq? In its first issue on appeal, Sunflower argues that the district court erred in instructing the jury to imput e fraudulent intent to Sunflo wer through the conduct of R3NG and Domecq, both of whom Sunflower refe rs to as its indepe ndent contractors. Sunflower asserts that “[t]he lynchpin of Owners’ counter-claim [wa]s that Sunflower breached the contract’s fraud clause by offering what Owners claims was an intentionally inflated estima te.” Aplt. Br. at 29. As noted, the Policy’s Fraud Clauses stated, in pertinent part, that the commercial pr operty coverage portion of the Policy was “void in any case of fraud by you as it relates to this Coverage Part at any time. It is also void if you or any other insured, at any time, intentionally conceal or misrepresent a material fact . . . .” Aplt. App., Vol. 20 at 5700. Sunflower argues that, because this policy langua ge makes no reference to “agen ts” of the insured, it is therefore limited to concealments or misrepre sentations made directly by Sunflower. Sunflower argues that “Owners’ entire coun ter-claim, however, turned on Owners’ argument that Sunflower’s agents fraudulently inflated the Ford/R3NG Estimate.” Aplt. Br. at 30 (emphasis in original). S unflower in turn argues that “Owners did not introduce evidence that anyone at Sunflower, its management, or its own employees were aware the independent adjuster or r oofers had falsely inflated the estimate.” Id. “Consequently,” Sunflower argues, “Owners insisted upon and received numerous instructions that the jury should impute the intent of any ‘agent’ appointed to act on behalf of Sunflower to Sunflower.” Id. “Further,” Sunflower argues, “the court12 expressly instructed the jury to considerMatrix and Ford the legal agents of Sunflower and to impute Ford’s state of mind and intent to Sunflower as a matter of law, regardless of whether Sunflower wa s actually aware the Ford/R[3]NG Estimate was intentionally inflated.” Id. “Though the court’s instructions did not expressly tell the jury to consider R3NG an ‘agent’ of Sunflower,” Sunflower argues “there were several instructions on agency that allowed the jury to impute the knowledge and intent of the third-party roofing contractor to Sunflower as well.” Id. In order to properly address Sunflower’s arguments regarding the instructions, it is necessary to review the history of the district court proceedings and several related rulings made by the dist rict court. Owners, in it s answer to the Sunflower’s third amended complaint, asserted, as both an af firmative defense and a counterclaim, that Sunflower violated th e Fraud Clauses of th e Policy by knowingly misrepresenting the costs of repairing th e hail damage. Sunflower filed a written reply to that counterclaim and asserted a number of affirmative defenses, but did not allege that the Fraud Clauses were limited strictly to actions taken by Sunflower and its employees, as oppos ed to its agents. When Sunflower moved for summary judgment in October of 2017, it maintained that Owners “ha[d] not paid th e full amount of . . . damages” that was owed to Sunflower under the Policy, and it argued that Owners could not “provide evidence” to support its count erclaim “that Sunflower . . . committed fraud against Owners.” ECF No. 93 at 1. More specif ically, Sunflower argued that Owners could not “prove either that the R3NG/Ford estimate [wa]s a material fact, or that Owners13 was ignorant of its falsity.” Id. at 8. Sunflower assert ed in support that Owners attached no importance to th e R3NG estimate, and it furthe r asserted that “Owners was aware, since before it paid the undis puted payment, that it did not trust the estimate submitted by Sunflower.” Id. at 9. Nowhere in its summary judgment motion, however, did Sunflower argue that the Policy’s Fraud Clauses were limited by their language to actions committed by Sunflower, nor, for that matter, did Sunflower make any other ar guments regarding agency (e .g., that R3NG and Domecq were independent contractors a nd not agents of Sunflower). Approximately four months later, in early March 2018, the parties met with the magistrate judge to prepare the final pretri al order. Owners as serted in the final pretrial order, as both a defense and a counterclaim, that Sunflower “all but encouraged its authorized agents to commit insurance fraud” by submitting a knowingly inflated proof of loss to Owners. ECF No. 131 at 6. Sunflower, for its part, asserted that Owners did not rely on, and indeed effectively ignored, the proof of loss submitted by R3NG and Matrix on Sunflower’s behalf. Nowhere, however, did Sunflower assert that Owners’ agency theory was precluded by the language of the Fraud Clauses, nor did Sunflower otherw ise assert that ther e were any pending issues regarding agency. On September 17, 2018, approximately one month prior to trial, the parties filed three sets of proposed jury instru ctions. Included among Sunflower’s proposed jury instructions was an instruction defi ning the term “indepe ndent contractor” and effectively asking the jury to determ ine whether R3NG and/or Matrix were14 independent contractors. EC F No. 164 at 10. Nowhere in this proposed instruction was the term “agent” defined or even mentioned. Like wise, Sunflower’s proposed verdict form contained no mention of the wo rd agent. And, again, Sunflower made no mention of the Policy strictly limiti ng fraudulent conduct to Sunflower alone. Owners’ set of proposed jury instruc tions included a number of instructions that addressed agency. For example, Own ers’ proposed instruction I described how an agency relationship is created and defi ned the terms agent and principal. ECF No. 167 at 14. There was also a proposed instruction on th e apparent authority of an agent, another stating that any misrepresentations or om issions made by an agent are deemed misstatements or omis sions of the principal, and, finally, an instruction stating that Matrix, Ford, Client Prefer ence, Countryman, R3NG, Domecq, and every board member were agents of Sunflower. Id. at 15–16. Although the caption of Owners’ proposed instructions stated they were “DISPUTED,” Owners did not identify Sunflower’s precise objection to the instructions, nor did Sunflower file a written objection to Owners ’ proposed instructions. Lastly, Owners filed what it described as a set of proposed stipulated jury instructions. One of those in structions stated that “[a] n agent is acting within the scope of its authority when the agent is carrying on busi ness for its principal which the principal has expressly aut horized or which is within the incidental, implied, or apparent authority of the agent.” ECF No. 166 at 4. Others disc ussed incidental and implied authority of an agent. Id. at 5. The final stipul ated proposed instruction stated that “[a] principal is considered to know or have notice of information if the15 principal’s agent, while acting within the scope of the agent’s authority, learns or receives notice of the information.” Id. at 7. The case proceeded to trial on Octobe r 15, 2018. At the close of Owners’ case-in-chief, Sunflower moved for JMOL, ar guing that (a) policyholders may legally present inaccurate proofs of loss without co nscious dishonesty orintent to defraud, and (b) that Owners’ evid ence failed to establish th at Sunflower submitted a knowingly inflated proof of loss. With respect to this latte r argument, Sunflower asserted that Owners presented the test imony of its independent adjuster Gary Stevens, and that Stevens never talked to Ford or Domecq, the two people who prepared Sunflower’s proof of loss. Agai n, however, Sunflower made no mention of any issues regarding agency. The distri ct court took Sunflowe r’s motion for JMOL under advisement. Sunflower presented the testimony of th ree witnesses in defense of Owners’ counterclaim: Countryman, Edward Fron apfel, an engineer who was hired by Sunflower during the litigation to assess th e property and determine if the damages were caused by the Septem ber 29, 2014 hail storm, a nd Domecq. Countryman conceded on cross-examina tion that Matrix was speak ing for Sunflower when it submitted the claim for dama ges to Owners and that Sunf lower could not “pass the buck” by claiming that it did not know of any misrepresentati ons in the proof of loss. Aplt. App., Vol. 19 at 4999. She also conc eded that, under the terms of the contract between Sunflower and Client Preference, C lient Preference was to receive a “special projects fee” of 4% of the gross amount of th e total cost of repa irs to the Sunflower16 Property, and that she persona lly would receive 35% of that 4% special projects fee. Id. at 5001. Domecq, for his part, had no explanation for numerous categories of damages alleged in the proof of loss and, on several occasions, conceded that certain charges listed in the proof of loss were unjustified. He also contradicted his deposition testimony on multiple occasions. Ultimately, a nd perhaps most damaging to Sunflower, Domecq conceded that the multiple errors th at Owners identified in his proof of loss could reasonably suggest that the er rors were intentional rather than random. Id. at 5348. At the close of all the evidence, Sunflower renewe d its motion for JMOL and argued, for the first time ever in the proceedings, that the Policy required that any concealment, misrepresentation or fraud have been committed direct ly by the insured, and not by the insured’s agen ts. Id., Vol. 20 at 5371. S unflower in turn argued that Owners presented no evidence that “anyone on behalf of Sunflowe r . . . was involved whatsoever in the conduct which is th e . . . inflation of the estimate.” Id. at 5373. The district court responded: “What you’re effectively aski ng me to rule as a matter of law that the only way” that Owners’ “counter claim goes to the jury is if I rule as a matter of law that the intentional misrepre sentation or concealme nt could only have been done by Sunflower and none of its agents.” Id. at 5373–74. Sunflower’s counsel responded: “Correct.” Id. at 5374. The district cour t then stated: “Can I ask you why you’ve waited to this point to raise this issue?” Id. Sunflower’s counsel responded: “I don’t think it’s a matter of waiting as much as a matter of discovering it as we were doing more research, Your Honor.” Id. Owners’ counsel argued, in17 part, that Sunflower had waived these argumen ts by failing to raise them at an earlier stage of the proceedings. Id. at 5377. The district co urt noted that Sunflower was “springing this on me atthe last moment.” Id. at 5384. Consequently, the district court took the matter under a dvisement and directed the pa rties to file supplemental briefs addressing the issue raised by S unflower, including whether Sunflower had waived or forfeited the issu e that Sunflower could only be liable for concealment, misrepresentation or fraud that it committed. Owners also moved for JMOL on the is sue of whether Matr ix, Ford, Client Preference, Countryman, R3NG and Domecq we re Sunflower’s agents as a matter of law such that their statemen ts in relation to the insura nce claim and proof of loss were binding on Sunflower. Id. at 5391. The district court concluded, as a matter of law, that Client Preference, Matrix a nd Ford were agents of Sunflower. Id. at 5418-20. But the district cour t concluded that genuine issues of material fact existed regarding whether R3NG and Domecq were agents of Sunflower. Id. at 5421. Thus, the district court granted in part and denied in part Owners’ motion for JMOL. At the end of the fourth day of trial, shortly after the part ies made their oral JMOL motions, the district court conducted an instruction confer ence. During that conference, Sunflower objected to the district court’s prop osed instructions regarding agency, which included instructions on ag ency relationship, scope of authority, incidental authority, implied authority, apparent authority, and knowledge imputed to principal. Sunflower argued: “The basis for the objection is that under the explicit terms of the contract [i.e., the Policy], Owners must prove that Sunflower breached18 the fraud provision, not anything related to one of its agents. What Sunflower’s agents did or didn’t do are entire ly unrelated to this case.” Id. at 5440. The district court took that objecti on under advisement. The next morning, on the fifth and final da y of trial, Sunflowe r filed its brief in support of its renewed motion for JMOL, a nd also filed objections to the district court’s proposed agency instructions. Sunf lower argued in its brief that, “[a]ccording to the plain language of the Po licy, Owners must prove that Sunflower, rather than its agents, violated the fraud clause,” and that “Owners ha[d] fa iled to present any evidence at trial that Sunflowe r intentionally misrepresented either the amount of the loss by submitting an inflated claim, or the date of loss.” ECF No. 218 at 1. “As a result,” Sunflower argued, it “should be granted judgment as a matter of law on Owners’ claim for Breach of Contract.” Id. The district court denied Sunflower’s renewed motion for JMOL and overruled its objections to the proposed agency instructions. In doing so, the district court concluded that “Sunflower’s written submission entirely fail[ed] to address the waiver question that the Cour t and Owners repeatedly raised during oral argument on the motion,” and “thus deem[ed] Sunflowe r to have conceded the issue.” ECF No. 231 at 2. The district court also concluded that, in any event, Sunflower forfeited its arguments by failing to raise th em “at an appropriate time.” Id. at 3. Had Sunflower raised its arguments at an earlier stage, the di strict court noted, it might “have obviated most of the testimony and evidence presented at trial.” Id. The district court concluded “it would be fundamentally unjust to put Owners to its proof19 on its counterclaim at a week-l ong jury trial, and then c onsider at this late date arguments from Sunflower which, if now accepted by the Court, would render the entire trial a nullity.” Id. In sum, the district c ourt concluded “that Sunflower forfeited both arguments,” i. e., that agency principles did not apply and that recoupment was not a remedy allowed under th e Policy, “for failure to timely raise them before trial.” Id. Sunflower’s opening appellate brief entirely ignores this procedural history and, more significantly, the district cour t’s forfeiture ruling. We have long and consistently held that “[a] n issue or argument [that is] insufficiently ra ised in the opening brief is deemed waived.” Becker v. Kroll , 494 F.3d 904, 913 n.6 (10th Cir. 2007); see Bronson v. Swensen , 500 F.3d 1099, 1104 (10t h Cir. 2007) (“[W]e routinely have declined to consider arguments that are not raised, or are inadequately presented, in an appellant’s opening brief.”). Adhering to th is rule, we conclude that Sunflower has effectively waived any cha llenge to the district court’s forfeiture ruling regarding the agency instructions by failing to acknowledge or challenge that ruling in its opening appellate brief. 2) Did the district court err in denying Sunflower’s Rule 50 motion? In its second issue on appeal, Sunflower challenges the district court’s denial of its motion for JMOL at the close of all the evidence, arguing that there was no evidence that it intentionally misrepresented or concealed a material fact, aside from erroneously imputing the acts of its inde pendent “agents.” Aplt. Br. at 34. According to Sunflower, “the only reason the many instructions on ‘agency’ were20 included in the charge was because there was otherwise nothing showing Sunflower itself ‘intentionally’ misrepresent ed the amount of the loss.” Id. (emphasis in original). “Thus,” Sunflowe r argues, “this case presents the secondary problem that the only evidentiary basis the jury could ha ve relied on for finding a breach of contract by Sunflower was the intent of pe rsons or entities other than Sunflower, which . . . is not supported by the contra ctual language as a matter of law.” Id. at 34-35 (emphasis in original). “Under thes e circumstances,” Sunflower argues, this “Court should reverse and render a take nothing judgment on Owners’ counter-claim because there is legally insufficient evidence Sunflo wer or ‘another insured’ ‘intentionally’ violated the fraud clause.” Id. at 35. Sunflower’s challenge to the district c ourt’s denial of its motion for JMOL is, at bottom, essentially the same as Sunflower’s challenge to the district court’s agency instructions. Specifically, Sunflower is asserting that it was entitled to JMOL because (a) the plain language of the Polic y’s Fraud Clauses li mited the scope of those clauses to actions ta ken directly by Sunflower a nd its employees, and does not apply to actions taken by agents working on behalf of Sunflower, such as R3NG and Domecq, and (b) Owners presented no evidence at trial establishing that Sunflower or its employees were responsible for the misr epresentations contained in the proof of loss. As discussed above, how ever, Sunflower fails in its opening appellate brief to address the district court’s conclusion that it forfeited these arguments by failing to raise them in a timely fashion prior to trial. We therefor e conclude that, as with its21 challenge to the district c ourt’s instructions on agency , Sunflower has effectively waived any challenge it may have to th e district court’s forfeiture ruling. 3) Does the Policy provide a recoupment remedy? In its third issue on app eal, Sunflower argues that the Policy does not provide any recoupment remedy, and thus does not allow Owners to recoup the amounts that it paid to Sunflower. In other words, S unflower argues that Owner s “seeks to insert a remedy into the Policy that it does not provide – return or recoupment of an Undisputed Payment the insurer already made on a claim.” Aplt. Br. at 40. Sunflower argues that “[t]his is not just a waiver problem,” but also “a basic contract interpretation problem” and “[ t]he remedy provided by the Dist rict Court is not in the Policy.” Id. at 41. Sunflower in turn argues that we “must interpret the Policy language as written resolving any ambiguity in favor of the insured under the wellestablished rules” governing contracts of insurance. Id. Notably, Sunflower makes no attempt to identify what ruling of the district court it is actually challenging. As previo usly discussed, Sunflo wer first argued that the Policy does not allow for recoupment wh en it renewed its motion for JMOL at the close of all the evidence. The district court concluded that Sunflower had forfeited this argument by failing to raise it in a timely fashion prior to trial. Because Sunflower once again fails to acknowledge, let alone directly challenge, the district court’s forfeiture ruling in its openi ng brief, we conclude that Sunflower has effectively waived any challenge to that ruling. See Becker , 494 F.3d22 at 913 n.6 (“An issue or argum ent [that is] insufficiently ra ised in the opening brief is deemed waived.”). 4) Did the district court deny Sunflowe r a fair trial as a result of two evidentiary rulings? In its fourth issue on appeal, Sunflower argues that it was denied a fair trial as a result of the district court’ s decision to (a) admit contract or’s invoices and bids that were prepared before the 2014 storm, and (b) exclude evidence of Owners’ investigation of Sunflower’s claim. We review for ab use of discretion the trial court’s evidentiary rulings. Ryan Dev. Co., L.C. v. Ind. Lumbermens Mut. Ins. Co. , 711 F.3d 1165, 1170 ( 10th Cir. 2013). a) Admission of contractor’sbids and invoices During Owners’ case-in-chief, the distri ct court permitted Geoffrey Page, a senior claims adjuster employed by Owners , to testify about the amounts of written bids and invoices that Sunflower received from roofing contractors in 2007. Those bids and invoices, which were prepared appr oximately seven years prior to the storm that caused the damage claimed by Sunflowe r in this case, related to various roof repairs at the Sunflower Property. Page also testified that he used Xactimate software 2to change Sunflower’s 2016 estima te of damages resulting from the 2014 storm to reflect 2007 pricing and in turn ga ve that altered pric ing report to Gary

2According to the reco rd, Xactimate software is commonly used by contractors and insurance adjusters to determine the co st of repairs.23 Stevens, the independent adjuster who wa s hired by Owners to review Sunflower’s proof of loss and estima te in this case. Stevens also testified about the 2007 bi ds and invoices. Stevens explained that, as part of his investig ation in this case, he attemp ted to determine how much the repairs requested by Sunflower in its proof of loss would have cost in 2007 dollars. Stevens contrasted the amounts requested by Sunflower from Owners, adjusted to reflect 2007 pricing, with the amounts c ontained in the bids and invoices that Sunflower actually received from contractors in 2007. Stevens testified that he had never before seen such a “m assive” difference in prices, i.e., the difference between the amounts that Sunflower actually paid for roof repairs in 2007 and the amounts that Sunflower requested from Owners in 2016. Aplt. App., Vol. 18 at 4813. Although Sunflower objected to the admi ssion of the 2007 bids and invoices, the district court overruled that objection and admitted them fo r the limited purpose of serving as “evidence of Sunflower’s notice of the amount it was invoiced to replace the roofs in 2007 and Sunflower’s willingness to pay such price.” ECF No. 225 at 13 (jury instructions ). The district court speci fically instructed the jury regarding the limited purpo se of this evidence. Id. Sunflower argues in its app eal that, contrary to the district court’s limiting instruction, the 2007 “invoices/bids were in tended to be used—and were exclusively used—as proof of the alleged ‘truth’ stat ed in them: that th e roofs were less expensive to repair at a prev ious time in order to have the jury compar e them to the Ford/R3NG Estimate.” Aplt. Br. at 48. Sunflower in turn argues that “the24 invoices/bids were completely irre levant and highly prejudicial.” Id. at 49. Sunflower asserts that “the invoices/bids lack[ed] any detail about the itemized materials costs, labor cost s and other critical elemen ts necessary to make a comparison to the detailed Xactimate esti mate they were us ed to attack.” Id. “Additionally,” Sunflower argue s, “they were not related to Storm damage because they predated the [2014] Storm entirely.” Id. Sunflower also argues that the limiting instruction given to the jury by the district court “failed to cure [the] prejudice” that resulted from the doc uments’ admission. Id. at 50. Sunflower asserts that “[o]nce the court allowed Owners to publish the numbe rs from these bids a nd invoices to the jury and invited its witnesse s and the jury to speculate about their relevance to the cost of repairs for damage from the St orm, that comparison permeated the entire case.” Id. Thus, Sunflower argues, “the admissi on of such irrelevant and prejudicial evidence and its extensive use throughout the case demonstr ates reversible harm just from the admission of this evidence.” Id. at 51. We reject Sunflower’s arguments and c onclude that the district court acted within its discretion in ad mitting the 2007 bids and i nvoices for the limited purpose outlined in its instruction to the jury. In admitting this evidence, the district court noted that Sunflower “failed to explain w hy [Owners’] proposal to have Gary Stevens explain how to compare the estimates [w a]s improper.” ECF No. 204 at 7. The district court also explai ned that Sunflower was “fre e to challenge [Stevens’] comparison technique on cro ss examination,” and it ther efore agreed with Owners “that [Sunflower’s] argument [w ent] to the weight attri butable to the proffered25 testimony, but d[id] not preclude its admission altogether.” Id. Notably, Sunflower makes no mention of these rationales in its opening appellate brief. Even assuming, for purposes of argument, that the district court abused its discretion by admitting the 2007 bids and i nvoices, it is clear that the admission of this evidence was harmless in light of th e evidence presented at trial by both Owners and Sunflower. For its part, Owners presen ted extensive testimony from Stevens, the independent adjuster it hired to review Sunf lower’s proof of loss. Stevens testified, independent of the evidence of the 2007 bids and invoices, about multiple categories of items in Sunflower’s pr oof of loss that, based upon hi s experience and expertise, were inflated and unreasonably excessive. Sunflower, during its case, presented testimony from Jason Domecq of R3NG, one of the two people who prepared and submitted the proof of loss on behalf of Sunflower. As previously discussed, Domecq proved to be a disastrous witn ess for Sunflower. Domecq offered no explanation for numerous line items containe d in the proof of loss. He also, on several occasions, conceded th at certain charges listed in the proof of loss were unjustified. And, perhaps most surprisingly, he conceded that the multiple errors that Stevens identified in the proof of loss could reasonably i ndicate that the errors were intentional rather than random. Thus, the 2007 bids and invoices were but a small part of the evidence supporting Own ers’ counterclaim for fraud and misrepresentation. b) Exclusion of evidence of Owners’ investigation of Sunflower’s claim26 Sunflower also asserts that the dist rict court abused its discretion by “exclud[ing] evidence of [three] detailed reports prepared by Stevens for Owners related to the Storm damage, which would have been releva nt for the jury to conduct an apples-to-apples comparison.” Aplt. Br . at 51. Owners objected to admission of these reports on the grounds th at they went “to the claims handling” issues raised by Sunflower “that the [district court] ha[d] already” reso lved. Aplt. App., Vol. 18 at 4747. Sunflower argued in response that th e reports were relevant for purposes of impeaching Stevens. Id. at 4749. The district c ourt sustained Owners’ objection “because [the reports] [we]re matters directly [involving] the claims handling,” but it informed Sunflower that it “w [ould] allow in a limited form[the reports] to be used as potential impeachment of . . . Steven s” (i.e., without actually admitting the reports). Id. Sunflower cross-examined Page, Owners’ senior claims adjuster, about eleven items that Stevens failed to include in his initial estimate of damages. Id. at 4750–51. During that cross-examination, Page conced ed that Stevens had to prepare a revised estimate to incorporate those eleven items and that the revised estimate was greater than the initial estimate. Id. at 4751–52. During Sunflo wer’s cross-examination of Stevens, it did not ask him similar questions, nor did it ot herwise attempt to impeach him using any of the three re ports that were excluded by th e district court. At the conclusion of Sunflower’s cr oss-examination of Stevens, the district court stated on the record: “Because the ca se law is clear that doc uments can be used for impeachment purposes that have not been r eceived into evidence, I am not precluding27 you [Sunflower] from using any of the exhibits you referen ced in your offer of proof or any of the exhibits . . . as to which I’ve sustained objec tions . . . in an appropriate attempt to impeach a witness provided that the foundation has been laid.” Id. at 4923–24. Thereafter, Sunflower made an offer of proof to the district court regarding the excluded exhibits. Sunflower stat ed that its “offer of proof relate[d] to cross-examination of Gary St evens,” and that “[h]ad [it] been allowed, [it] would have introduced evidence of Exhibits 71, 76, and 80,” which “were various documents that were prepared by . . . Stevens while he was serving as independent adjuster during the claims proc ess. They were a status report, a reserve report, and then what he’s referred to as a closing report.” Id. at 4930. Sunflowe r in turn stated that those reports “would ha ve been significant” because “they talk[ed] about, on multiple occasions, the need to meet with [Sunflower’s] public adjuster to try and reach a resolution; that the two parties ha d essentially agreed to the scope of the damage, and that it was just a matter of amount of dama ge; that the parties should meet and reach an agreemen t as to the amount.” Id. at 4930–31. Sunflower also stated that it would have “cross examine[d] [Stevens] on the fact th at the information, which [was] in the reports th at he prepared, sa[id] nothi ng about inflated estimate, fraud, or raise[d] any red flags whatsoever, which goes to his credibility as an expert now testifying that clearly looking at an es timate that he had dating back to May of 2016 it shows evidence of clear massive fraud.” Id. at 4931. Sunflower argues in its appeal that “[a]llowing the jury to hear the total amount of Stevens’ estimate upon which the Undisputed Payment was based, without28 admitting Stevens’ own detailed reports, pr ohibited the jury from fully comparing and understanding the reasons behind the difference in th e total values of these estimates.” Aplt. Br. at 52 (emphasis in original). Su nflower also argues that the “[a]dmission of those documents would have helped the jury understand how Owners’ stories about fraudulent inflation and late notice causing prejudice were not based [on] actual concerns of Owners’ [sic] during the claims process, and were fabricated only afte r suit was filed.” Id. We conclude, contrary to Sunflower’s assertions, that the district court did not abuse its discretion in excluding the exhib its. To begin with, the district court expressly ruled that Sunflower was free to cross-examine Stevens regarding the exhibits, even though the exhibits would no t be admitted. Nevertheless, Sunflower chose not to do so, and it offers no explanati on in its opening appellate brief for this failure. Thus, as Owners co rrectly observes in its a ppellate response brief, “Sunflower’s failure to use the exhibits” to impeach Stevens “is not the district court’s error,” but rather “Sunflower’s” erro r. Aple. Br. at 42. In any event, Sunflower did cross-examine Page regardi ng the excluded exhibits and elicited from him that Stevens’ initial estimate err oneously omitted eleven different items of damages. 5) Did the district court err in granti ng partial summary judgment in favor of Owners on Sunflower’s claims for breach of contract and bad faith? In its fifth and final issue on appeal, Sunflower argues that the district court erred in granting partial summary judgm ent in favor of Owners on Sunflower’s29 claims for breach of contract and bad faith. We review de novo the “district court’s summary-judgment ruling, applying the same st andard that applied in district court.” Greer v. City of Wichita , 943 F.3d 1320, 1322 (10th Cir. 2019). We also “have discretion to affirm” the di strict court’s summary j udgment ruling “on any ground adequately supported by the record, so long as the parties have ha d a fair opportunity to address that ground.” Hasan v. AIG Prop. Cas. Co. , 935 F.3d 1092, 1099 (10th Cir. 2019) (quotations and brackets omitted). Owners argues in response that the jury’s verdict su pplies an independent basis for affirming the district court’s summar y judgment ruling on S unflower’s breach of contract and bad faith claims. Aple. Br. at 45–46. We agree. Because the jury found that Sunflower violated the Policy’s Fraud Clauses, that determination effectively voids the Policy. As a result, Owners coul d not, consistent with that verdict, be found to have either breached the Policy orengaged in bad faith by failing to pay the full amount of damages claimed by Sunflowe r, since Sunflower’s violation and the resulting voidance of the contract pr eceded any alleged breach by Owners. See generally Wilson v. Muckala , 303 F.3d 1207, 1219 (10t h Cir. 2002) (concluding “that, even if it was erro r to grant summary judgment for the board members, any error was harmless” b ecause “[p]laintiffs could not ha ve sustained a cause of action in negligence against these individuals wh en the alleged perpetrator himself was exonerated of negligence”); Fraser v. Major League Soccer, LLC , 284 F.3d 47, 60-61 (1st Cir. 2002) (concluding that the grant of summary judgment on a particular claim was harmless in light of the jury’s subsequent verdict).30 III The judgment of the district court is AFFIRMED. Sunflower’s motion to maintain district court docum ents under seal is GRANTED.

Entered for the Court
Mary Beck Briscoe Circuit Judge