UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ US GENERAL, LLC, Plaintiff - Appellee,

v. GUIDEONE MUTUAL INSURANCE COMPANY, Defendant - Appellant. No. 22-1145 (D.C. No. 1:18-CV -01256-REB-NRN) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , TYMKOVICH , and MATHESON , Circuit Judges.

________________ _________________ Defendant-Appellant GuideOne Mutual Insurance Company (“GuideOne”) appeals following a jury verdict in favor of Plaintiff-Appellee US General, LLC (“US General”). Exercising jurisdiction un der 28 U.S.C. § 1291, we affirm.
I. BACKGROUND

A. Factual History The evidence presented at tria l, stated in the light most favorable to the jury’s verdict, Johnson v. Unified Government of Wy andotte County/Kansas City, Kansas ,

* This order and judgment is not bi nding 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 

### December 12, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 22-1145 Document: 010110780343 Date Filed: 12/12/2022 Page: 12 371 F.3d 723, 728-29 (10th Cir. 2004), was as follows . In 2016, a hailstorm damaged a building owned by Crossroads Am erican Baptist Church (“Crossroads”) and insured by GuideOne. Crossroads submitted a claim to Guid eOne for the hailstorm damage. Crossroads hired US General as its general contractor to perform the repairs and later assigned its interest in the in surance policy to US General. GuideOne retained independent adjuster Jon Hayes to estimate the cost of repairs, which he said was about $55,000. 1 US General believ ed the repairs would cost significantly more and commissioned its own estimate, which was at least $190,000. GuideOne next as ked an engineer to assess the nature and extent of damage to the building. The engineer’s re port identified significa nt areas of damage beyond Mr. Hayes’s estimate. Mr. Hayes then revised his estimate upward, but it still failed to include large portions of the damage and did not allow fo r any overhead and profit for US General. Throughout 2017, US Genera l continued requesting pa yments for repairs not included in Mr. Hayes’s estimate. GuideOne then commissioned a building consultant, Jeff Arreguy, to provide a second opinion on th e cost of repairs. In November 2017, he found that the scope of the project was $369,000. Throughout this time, Guid eOne issued partial payments for certain areas of damage, but the payments fell far short of the funds US General needed to complete

1 We use round numbers to refe r to the sums in dispute. Appellate Case: 22-1145 Document: 010110780343 Date Filed: 12/12/2022 Page: 23 the repairs. This hindered US General’s ability to begin making the repairs because, according to the testimony of its principa l, all of the repairs “had to start concurrently” and it is “more expensive to start and stop a project.” App., Vol. VIII at 165. Thus, US General did not begi n work on the buildi ng until early 2018. According to testimony at trial, the rep eated delays in paym ent caused significant difficulties for US General in its relationship with the s ubcontractors hired to perform some of the work. Id. at 170 (the delayed payments resulted in “a contentious period of time”). US General continued working throu gh the spring of 2018 and encountered additional expenses covered by the insuran ce policy. On April 4, 2018, US General sent an invoice to GuideOne for $91,000. The same day, a Gu ideOne representative said a “check [wa]s in the mail ” for that amount. App., Vo l. VIII at 169. The check did not arrive. In July 2018, GuideOne issued a partial payment of $23,000. US General did not receive full payment for the $91,000 invoice until October 4, 2018. By that point, GuideOne had paid mo st of the money it owed under the insurance policy. But one area remained in dispute. US Ge neral requested $70,000 for work it expected to perform on the bu ilding’s electrical sy stems and heating, ventilation, and air conditioning (“HVAC”). GuideOne, however, refused to pay the $70,000 for the electrical and HVAC systems. Appellate Case: 22-1145 Document: 010110780343 Date Filed: 12/12/2022 Page: 34 B. Procedural History The Complaint and Pretrial Motion Practice Crossroads brought this case against Gu ideOne in May 2018. It filed an amended complaint on October 19, 2018, after US General had received the final payment from GuideOne. The amended complaint asserted three claims: (1) Breach of contract, based on GuideO ne’s refusal to pay the $70,000 requested for electrical and HVAC work; (2) Common law bad faith breach of insu rance contract, based on GuideOne’s alleged bad faith in refusing to pay the amount it owed under the policy; and (3) Unreasonable delay of payment under Colo. Rev. Stat. §§ 10-3-1115 and 10-3-1116. In September 2019, Crossroa ds successfully moved to jo in US General to act as Plaintiff. In May 2019, GuideOne moved for summ ary judgment on all of US General’s claims. In response, US Ge neral voluntarily dismissed its second claim for common law bad faith breach of insu rance contract. The distri ct court denied summary judgment as to the remaining cl aims, writing, “[i]t is apparent that there exist genuine disputes as to material fa cts that are not appropriate fo r summary resolution.” App., Vol. IV at 169-70. The Jury Trial The case proceeded to a jury trial on US General’s remaining two claims— breach of insurance contract and unreasonable de lay of insurance be nefits. GuideOne did not file a motion for a judgment as a ma tter of law under Federal Rule of Civil Appellate Case: 22-1145 Document: 010110780343 Date Filed: 12/12/2022 Page: 45 Procedure 50(a) during the trial, either at the close of US Genera l’s evidence or after it presented its own evidence. App., Vol. IX at 59-61, 248-58. The district court drafted jury instruct ions and a verdict fo rm and circulated them to the parties. GuideOne said it ha d “[n]o objection” to the instructions or verdict form. App., Vol. X at 218. The district court instructed the jury that it must fi nd in favor of US General on the unreasonable delay clai m if it determined: “1. That the defendant delaye d and/or denied payment of insurance benefits to the plaintiff; and 2. That the defendant’s dela y and/or denial of payment was without a reasonable basis.” App., Vol. V at 227. The court then instru cted the jury that if it found GuideOne liable on the unreasonable delay claim, it must record on the verdic t form “the total dollar amount of the insurance benefits for which payment was dela yed and/or denied without a reasonable basis.” Id . at 231. The verdict form required th e jury (1) to indicate whet her GuideOne was liable on each of US General’s two claims, and (2 ) to state the amount of damages for each claim on which it found liability. App., Vol. V at 199-203. For US General’s breach-of-contract clai m, the verdict form required the jury to list the amount of “general damages” that US General had suffered due to GuideOne’s breach. Id. at 200. If the jury foun d no general damages, it was permitted to award nominal damages of one dollar. Appellate Case: 22-1145 Document: 010110780343 Date Filed: 12/12/2022 Page: 56 For the unreasonable delay claim, the verd ict form required the jury to identify the “total amount of insurance benefits, if any, [it] f[ound] by a preponderance of the evidence were delayed or denied by GuideO ne . . . without a reasonable basis.” Id

. at 202. The form also required the jury to assess damages on the unreasonable delay claim separately for the time periods befo re and after May 23, 2018, the date the original complaint was filed. Id

. During deliberations, the jury sent the following written query to the district court: “For questions 7 and 8 [on the ve rdict form]”—that is , the two questions asking the jury to assess damages for th e unreasonable delay cl aim for the periods before and after the case wa s filed—“will the[] amounts get paid out to U.S. General or are they just stat ements of facts[?]” Id. at 237. The court responded in writing that “[a]ny damages you award in your answ ers to questions 7 and 8 on the Verdict Form will be awarded to (‘paid out to’) the plaintif f, US General, LLC.” Id . at 238. The jury returned a verdic t in favor of US General on both claims. On the breach-of-contract claim, the jury found that US General had not suffered any general damages, but awarded $1 in nominal damage s. On the unreasonabl e delay claim, the jury found that GuideOne had unreas onably delayed paymen t of $155,700 in insurance benefits before Ma y 23, 2018, and $136,700 after that date. When the jury verdict was announced, GuideOne did not object or argue that it was inconsistent. App., Vol. IX at 289-90. Appellate Case: 22-1145 Document: 010110780343 Date Filed: 12/12/2022 Page: 67 Post-Trial Motions GuideOne filed a motion to amend the judgment under Federal Rule of Civil Procedure 59(e). It argued that (1) US General could obtain only $1 for unreasonable delay damages because the jury found only $1 of nomi nal damages on the breach-ofcontract claim, (2) insuffici ent evidence supported the un reasonable delay claim, and (3) US General was not en titled to any unreasonable de lay damages stemming from the period after the lawsuit was filed. US General moved for attorney fees of $391,295.50, under Colo. Rev. Stat. § 10-3-1116 , which provides that if a plainti ff succeeds on an unreasonable delay or denial claim, it may recover at torney fees and double damage s. It also requested an amended judgment to reflect the doubl e damages provided by the statute. On March 30, 2022, the district court denied GuideOne’s motion to amend the judgment and granted US General’s motion for double damages and attorney fees. This appeal followed.
II. DISCUSSION GuideOne argues on appeal that A. The district court erred by allowing US General to recover unreasonable delay damages for delays that occu rred after the comp laint was filed. B. The jury verdict was inconsistent because the jury awarded significant damages on US General’s unreasonable delay claim, but no damages on its breach-of-contract claim. C. The evidence at trial was in sufficient to support th e jury’s verdict because the evidence showed that GuideOne complied with Colorado insurance regulations. Appellate Case: 22-1145 Document: 010110780343 Date Filed: 12/12/2022 Page: 78 D. The district court abused its discreti on in granting US General’s request for attorney fees. A. Damages for Post-Complaint Delays GuideOne argues that, under Colorado law, the filing of the complaint suspended its duty to negotiate with US General, and thus US General cannot recover damages on its unreasonable delay claim fo r post-complaint delays. Aplt. Br. at 11-14. GuideOne asserts that the district court’s failure to acknowledge this precomplaint/post-complaint distin ction caused two errors: (1) the jury instructions and verdict form should have told the jury it could not asse ss damages for post-complaint delays, id . at 13, and (2) the district court sh ould have granted the Rule 59(e) motion to amend the judgment, id . at 18, 23. We affirm. GuideOne waiv ed any challenge to the ju ry instructions, and its argument misinterprets Colorado law. Legal Background Colo. Rev. Stat. § 10-3-1116 provides that an insured can sue its insurer if the insurer “unreasonably delay[ed] or deni[ed]” th e insured’s claim fo r benefits. “[A]n insurer’s delay or denial was unreasonabl e if the insurer delayed or denied authorizing payment of a covered benefit w ithout a reasonable basis for that action.” Id. § 10-3-1115. Sections 10-3-1115 and 10-3 -1116 created a “new private right of action” that is similar to, but distinct from, “an action alleging breach of the common law duty of good faith and fair dealing.” Kisselman v. Am. Fam. Mut. Ins. Co ., 292 P.3d 964, Appellate Case: 22-1145 Document: 010110780343 Date Filed: 12/12/2022 Page: 89 973 (Colo. App. 2011). The statutes’ legislative history reveals that “their purpose . . . was to announce a standard of conduct . . . in addition to and less onerous [for plaintiffs] than the common law standardof good faith and fair dealing.” Id . at 974. In cases dealing with the common-law duty of good faith and fair dealing, Colorado courts have held that the “duty of good faith and fair dealing continues unabated during the life of an insurer-i nsured relationship, including through a lawsuit or arbitration between the insured and the insure r, although the adversarial nature of such proceedings may suspend the insurer’s oblig ation to negotiate as a reflection of good faith.” Sanderson v. Am. Fam. Mut. Ins. Co. , 251 P.3d 1213, 1217 (Colo. App. 2010) (emphasis added); see also Bucholtz v. Safeco Ins. Co ., 773 P.2d 590, 592-93 (Colo. App. 1988); Bankr. Est. of Morris v. COPIC Ins. Co. , 192 P.3d 519, 523-24 (Colo. App. 2008). No Colorado court has applied this prin ciple—that the initiation of a lawsuit may “suspend” an insurer’s duty to make prompt payments—to unreasonable delay claims under § 10-3-1115. And no Colorado court has ever held that an unreasonable delay claim—whether statutory or comm on law—encompasses only damages arising before the insured files suit. To the contrary, the Colo rado courts of appeals have repeatedly emphasized that “b ad faith breach of an insu rance contract encompasses all of the dealings between the parties, including conduct occurring before, during, and after trial.” Bankr. Est. of Morris , 192 P.3d at 524; see also Parsons ex rel. Parsons v. Allstate Ins. Co ., 165 P.3d 809, 815 (Colo. A pp. 2006). In fact, the Colorado Supreme Court cited with approval a court of appeals case holding that Appellate Case: 22-1145 Document: 010110780343 Date Filed: 12/12/2022 Page: 910 “evidence of bad faith conduct which occu rred after the filing of the complaint was admissible” because the evid ence indicated “a continuation of the same difficulties that preceded the filin g of the complaint.” Dale v. Guaranty Nat. Ins. Co ., 948 P.2d 545, 552 (Colo. 1997) (quoting Southerland v. Argonaut Ins. Co., 794 P.2d 1102, 1106 (Colo. Ct. App. 1990)); see also id . (“[T]he tort of bad faith breach of insurance contract encompasses an entire course of conduct.”). Analysis

a. Jury instructions and verdict form To the extent GuideOne’s pre-complaint/p ost-complaint argument is based on the jury instructions or v erdict form, it is waived. B efore releasing the jury to deliberate, the district court ci rculated the jury instructions and verdict form to the parties and gave them an opportunity to l odge objections. App., Vol. X at 217-18. GuideOne said it had “[n]o objection” to the instructions or verdict form. Id . at 218. If a party fails to timely object to jury in structions or verdic t forms that it later challenges on appeal, we review the inst ructions and forms for plain error. Barber v. T.D. Williamson, Inc ., 254 F.3d 1223, 1227 (10th Cir. 2001). “Plain error is (1) error, (2) which is plain, (3 ) which affects substantial right s, (4) and which seriously affects the fairness, integrity , or public reputation of judicial proceedings.” Somerlott v. Cherokee Nation Distribs., Inc ., 686 F.3d 1144, 1151 (10th Cir. 2012). If the party fails to “argue for plain erro r and its application on app eal,” it waives appellate review of the issue. Richison v. Ernest Grp., Inc ., 634 F.3d 1123, 1131 (10th Cir. 2011). Appellate Case: 22-1145 Document: 010110780343 Date Filed: 12/12/2022 Page: 1011 Here, the district court provided bot h parties the opportunity to lodge objections to the jury instru ctions and forms, and GuideOne said it had none. App., Vol. X at 218. It therefore forfeited a ch allenge to the jury instructions and verdict forms, and because GuideOne has not adva nced a plain error argument in its opening brief, it has waived the issue. Richison , 634 F.3d at 1131. In its reply brief, GuideOne asserts that even “under a waiver standard,” “[t]he trial court erred in reviewing th e jury instruction[s].” Aplt. Reply Br. at 2. But even if we were to entertain this argument, GuideOne fails to address the elements of plain error, and instead tries to argue that it di d not forfeit the issue in district court. Id

. at 3. Because GuideOne “mak e[s] no effort to explain ho w the district court plainly erred” under the relevant legal sta ndard, it has waived the issue. Platt v. Winnebago Indus., Inc ., 960 F.3d 1264, 1273 (10th Cir. 2020). 2
b. Rule 59(e) motion We “review[] the district court’s ruli ng on a Rule 59(e) motion for abuse of discretion.” Loughridge v. Chiles Power Supply Co ., 431 F.3d 1268, 1275 (10th Cir. 2005). To the extent the di strict court’s ruling depended on a legal conclusion, we

2 GuideOne also contends that “the ve rdict form dropped ‘unreasonable’ delay or denial thereby incorrectly instructing the jury on the law for bad faith breach on [sic] insurance contract.” Aplt. Br. at 13. Because GuideOne failed to raise a contemporaneous objection to the verdict fo rm’s wording and fails to argue plain error on appeal, this argumen t is waived. Also, GuideO ne is wrong. The form instructed the jury to indicate the amount of insurance benefits that “were improperly delayed and/or denied [by GuideOne] . . . without a reasonable basis .” App., Vol. V at 231 (emphasis added). Appellate Case: 22-1145 Document: 010110780343 Date Filed: 12/12/2022 Page: 1112 review that conclusion de novo. Burke v. Regalado , 935 F.3d 960, 1044 (10th Cir. 2019). GuideOne argues that, due to its post-complaint argum ent, the district court erred in denying its motion to amend the judg ment. Aplt. Br. at 23-27. It contends that a party cannot maintain an unreasonabl e delay claim premised on post-litigation conduct and asserts that the district court should have am ended the verdict to remove damages stemming from delays that occurred after May 23, 2018. Id . We agree with the district court. Colo. Rev. Stat. § 10-3-1115, the unr easonable delay stat ute, contains no language stating that an insurer cannot incur liability for unreasonably delaying payment after the insured files suit. Th e cases GuideOne cites only concern the common-law duty of good faith and fair dea ling, and the statutory cause of action imposes a “less onerous” standard on plaintiffs. Kisselman , 292 P.3d at 975. GuideOne thus presents no authority for its claim that the filing of a lawsuit precludes an insured from recovering for ensu ing delays in payment, and neither the text nor the legislative history of th e statute supports Gu ideOne’s position. Even if the same standard governs common-law and statut ory delay claims, Colorado cases establish that an insurer’s obligation to act in good faith “continues . . . through a lawsuit or arbitration be tween the insured and the insurer.” Sanderson , 251 P.3d at 1217; see also Bucholtz , 773 P.2d at 592-93; Bankr. Est. of Morris , 192 P.3d at 523-24. The Colorado Supreme Court reinforced this prin ciple when it cited with approval a case upholdi ng the admission of “evidence of bad faith conduct Appellate Case: 22-1145 Document: 010110780343 Date Filed: 12/12/2022 Page: 1213 which occurred after the fi ling of the complaint.” Dale , 948 P.2d at 552 (citing Southerland , 794 P.2d at 1106). Dale also suggested that if an insurance company delays payments resulting from arbitration, that would support a bad faith breach of insurance contract claim, indicating that unreasonable de lay claims can be based on conduct that occurred after an adversarial proceeding began. See id . at 552 n.10. In short, the statute and the pertinent case s support that an insurer must generally continue to make prompt payments of undi sputed claims even during litigation with the insured. GuideOne’s arguments to the contrary ar e unpersuasive. It cites cases holding that the initiation of an adversarial proceeding “ may suspend the insurer’s obligation to negotiate as a reflection of good faith” in some circumstances. Sanderson , 251 P.3d at 1217 (citing Bucholtz , 773 P.2d at 592-93) (empha sis added). But it offers no reason why, in this case, US General’s complaint susp ended its duty to promptly pay uncontested claims. The facts of this case demonstrate the infirmity of GuideOne’s argument. In April 2018, US General sent GuideOne an in voice for $91,000 of re pairs. That same day, a GuideOne representa tive said the “check is in the mail”—an apparent concession that the policy cove red those repairs. App., Vol. VIII at 169. But the check never came, so US General initia ted this suit in May 2018. Although GuideOne does not dispute th at the policy covered the $9 1,000, it did not pay until October 2018, six mont hs after US General sent the invoice. Id . at 173. In other words, according to US General’s ev idence, GuideOne unreasonably delayed Appellate Case: 22-1145 Document: 010110780343 Date Filed: 12/12/2022 Page: 1314 payments for repairs that were undisput edly covered by the policy before and after US General filed the complain t. GuideOne does not expl ain why filing the complaint terminated its ob ligation to promptly make uncontested payments. For these reasons, we affirm.
B. Inconsistent Jury Verdict GuideOne argues that damages under th e Colorado unreasonable delay statute are limited to the amount of benefits th e insurer owes under the insurance policy, Aplt. Br. at 14, and that a plaintiff’s un reasonable delay damage s are capped at its breach-of-contract damages. Id . at 15. Because the jury awarded no general breachof-contract damages, GuideOne argues that the award of unreasonable delay damages produced an internally inconsistent verdict. Id . at 16-17. GuideOne raised this argument in its motion to amend the judgment under Federal Rule of Civil Procedu re 59(e). App., Vol. X at 9-10. The district court held that GuideOne waived this argument by faili ng to object to the v erdict when the jury rendered it. Id . at 271-72. Because GuideOne does not challenge that determination on appeal, we affirm. Legal Background Colo. Rev. Stat. § 10-3-1116, the unreas onable delay statute, provides that when an insured proves an insurer unreasonably delayed or denied payment under an insurance policy, the in sured “may bring an action . . . to recover reasonable attorney fees and court costs and two times the covered benefit

. ” Id. § 10-3-1116(1). We have held that a claim for “two times the covered benefit” under § 10-3-1116 is Appellate Case: 22-1145 Document: 010110780343 Date Filed: 12/12/2022 Page: 1415 “distinct from the insured’s underlying en titlement to benefits under the insurance
contract.” Etherton v. Owners Ins. Co ., 829 F.3d 1209, 1229 (10t h Cir. 2016). Thus, “[i]n total, the damages may equal three times the covered benefit, but not because the damages were trebled. The insured’s recovery would be predicated on liability for two distinct causes of action—the insurer’s brea ch of contract and its unreasonable delay or de nial of a claim.” Id. at 1230. Analysis In its Rule 59(e) motion, Gu ideOne did not frame its argument in terms of an inconsistency in the jury’s v erdict. ROA, Vol. X at 10- 11. Instead, it simply stated that “[t]he judgment should be amended to reflect the jury dete rmination of damages of $1 and an unreasonable delay of payment of that covered amount.” Id . at 10. The district court said Gu ideOne’s “argument that th e award of one dollar in nominal damages on the claim for breach of contract limits the da mages which can be awarded on the claim for unreasonable delay . . . is, in essence, a claim that the verdict is inconsistent.” App., Vol. X at 272. Because GuideOne did not object to the alleged inconsistency when the jury re ndered its verdict, th e district court found that it had waived the argument. Id . at 271-72. In its brief on appeal, GuideOne doe s not address the district court’s understanding that its Rule 59(e) motion claime d the jury’s verdict was inconsistent. Aplt. Br. at 14-18. At oral argument, howev er, GuideOne said it s contention that the verdict should be amended to reflect $1 in unreasonable de lay damages is, in effect, a claim that the jury’s verdic t was inconsistent. Oral Arg. at 06:55-07:07. But Appellate Case: 22-1145 Document: 010110780343 Date Filed: 12/12/2022 Page: 1516 GuideOne does not challenge the district cour t’s decision that it waived this argument by failing to object while the jury was still present. Ap lt. Br. at 14-18. GuideOne has therefore waived this issue. When a ju ry returns its verdict, a party that believes the verdict is inconsistent must “object . . . before the jury is discharged.” Bartee v. Michelin N. Am., Inc ., 374 F.3d 906, 911 (10th Cir. 2004) (quotations omitted). If the pa rty fails to do so, it has wa ived the issue “unless the verdict is inconsistent on its face such that the entry of judgment upon the verdict is plain error.” Id . “Plain error” review in this context does not involve the traditional four-part test. Id . at 911 n.2. Instead, a facially in consistent verdict is plain error. Id . at 911. GuideOne did not object to the verdict after the verdict wa s read and before the district court dismissed the jury. App ., Vol. IX at 289-90. GuideOne thus may mount a challenge on appeal only by showing th e verdict was inconsis tent on its face.
Bartee , 374 F.3d at 911. But GuideOne makes no attempt in its briefing to do so. Indeed, at oral argument, it conceded th at any inconsistency in the verdict was difficult to ascertain at th e time the jury rendered its d ecision. Oral Arg. at 12:14-
12:43. For these reasons, GuideOne waived its challenge to th e asserted inconsistency in the jury’s verdic t, so we affirm.
C. Sufficiency of the Evidence GuideOne contends that insuffici ent evidence supported US General’s unreasonable delay claim becaus e it complied with Colorado insurance regulations in Appellate Case: 22-1145 Document: 010110780343 Date Filed: 12/12/2022 Page: 1617 its treatment of US General. Aplt. Br. at 18-21. We hold that GuideOne waived any challenge to the sufficiency of the evidence by failing to file a motion for a judgment as a matter of la w at trial. Under Federal Rule of Civil Procedure 50(a)(1), “[i]f a party has been fully heard on an issue during a jury trial and th e court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue,” the court may grant a motion for a judgment as a matter of law against the party. Failure to challenge the sufficiency of the evidence under Rule 50(a) precludes such a challenge on appeal. See ClearOne Commc’ns, Inc. v. Biamp Sys ., 653 F.3d 1163, 1183 (10th Cir. 2011). GuideOne argues US General’s eviden ce for its unreasonable delay claim was insufficient because GuideO ne complied with the Colo rado insurance regulation providing that “[a]ll insurers . . . shall make a decision on claims and/or pay benefits due under the policy within sixty (60) days after receipt of a valid and complete claim unless there is a reasona ble dispute between the part ies concerning such claim, and provided the insured has complied with the terms and conditions of the policy of insurance.” Colo. Code Regs § 702-5:5-1- 14(A)(1)(a). But Guid eOne’s failure to raise this argument in a Rule 50(a) motion during the trial, App., Vol. IX at 58-61, Appellate Case: 22-1145 Document: 010110780343 Date Filed: 12/12/2022 Page: 1718 248-58, precludes it from assert ing the challenge on appeal. 3 ClearOne Commc’ns,
Inc ., 653 F.3d at 1183. Because GuideOne waived this issue, we affirm. 4
D. Attorney Fees GuideOne argues the district court abus ed its discretion when it granted US General’s request for $391,295.50 in attorney fees. Aplt. Br . at 27-31. To support its request before the district court, US Ge neral submitted a “lodestar calculation”—it multiplied the hours its attorney s worked on the case by a proposed hourly rate for each attorney. App., Vol. VI at 206. The court accepted th is calculation, finding that the hours billed and the proposed hourly ra tes were reasonable. App., Vol. X at 281-82. GuideOne argues the court erred in reaching these factual findings. Aplt. Br. at 27-31. We disagree with GuideOne and affirm.

3 GuideOne suggests the evidence did not support the jury’s verdict because GuideOne “paid the replacement cost upon being provided confirmation that the agreed upon repairs had been performed, agai n as per the policy.” Aplt. Br. at 9; see also Oral Arg. at 00:41-01:37. But GuideO ne never presented this argument to the district court in a Rule 50( a) motion for a judgment as a matter of law, so the argument is waived.

4 GuideOne’s argument also fails on the merits. We ha ve rejected GuideOne’s contention that “[t]he fact [that it] complie d with . . . [Colorado’s] prompt payment regulations must preclude, as a matter of law, [US General’s] claim of unreasonable delay and denial.” Ap lt. Br. at 21. In Peden v. State Farm Mut. Auto. Ins. Co. , 841 F.3d 887 (10th Cir. 2016), we addressed the interaction between Colorado’s prompt payment regulation and unreason able delay claims, and he ld that “compliance with this regulation does not mean that the insurer acted reasonably.” Id . at 894; see also Etherton , 829 F.3d at 1228 n.7 (“Th e regulations only provide minimum standards to avoid penalties. Although an insurer ma y act unreasonably if it violates the regulation, it does not follow an insurer acts reasonably if it meets the regulation’s minimum standards.”). Appellate Case: 22-1145 Document: 010110780343 Date Filed: 12/12/2022 Page: 1819 Standard of Review “We review a district court’s decision on whether to award attorney fees for abuse of discretion, but we rev iew de novo the district cour t’s application of the legal principles underlying that decision.” Pound v. Airosol Co. , 498 F.3d 1089, 1100-01 (10th Cir. 2007) (quotations omitted). To the extent the district court made factual findings to support its fee award, we review those findings for clear error, Rutter & Wilbanks Corp. v. Shell Oil Co ., 314 F.3d 1180, 1187 (10t h Cir. 2002), meaning we “may reverse only if the dist rict court’s finding lacks fact ual support in the record or if, after reviewing all th e evidence, we have a definite and firm conviction that the district court erred,” Nat’l Fitness Holdings, Inc. v. Grand View Corp. Ctr. , 749 F.3d 1202, 1206 (10th Cir. 2014). Whether hours billed and hourly rates for a lodestar calculation are reasonable is a question of fact. See Mares v. Credit Bureau of Raton , 801 F.2d 1197, 1205 (10th Cir. 1986). Additional Procedural History Four attorneys worked on this case on behalf of US General—Michael Duffy, Larry Bache, Jonathan Bukowski, and Timo thy Burchard. At trial, Mr. Duffy and Mr. Bache examined witnesses and delivered US Ge neral’s opening and closing statements. App., Vol. VI at 220-39 (U S General’s billing statements). Mr. Bukowski also attended the tr ial to coordinate the displa y of US General’s exhibits, assist in trial preparation, and perform legal research. In its motion for attorney fees, US General proposed a lodestar calculation of $391,295.50. To support th at calculation, US General submitted a detailed billing Appellate Case: 22-1145 Document: 010110780343 Date Filed: 12/12/2022 Page: 1920 statement documenting the time spent by each attorney, along with an affidavit from Mr. Bache describing the work he and hi s colleagues performed. The lodestar calculation included billing rates for Mr. Duffy at $550 per hour, Mr. Bache at $450 per hour, Mr. Bukowski at $400 per hour , Mr. Burchard at $350 per hour, and paralegals at $125 per hour. US General also submitt ed a letter from a Denver attorney Rory Francis, who opined that (1 ) the hourly rates at which US General’s lawyers billed “correspond with each attorney’s education, experience, and expertise” and are within the range of rates charged by comparable attorn eys, though “near the top of” that range; and (2) the hours billed we re reasonable in light of the demands of the case. App., Vol. VI at 258-59. GuideOne opposed US General’s attorney fees request. It provided a report from another Denver attorney Troy Rackha m. He opined that the hourly rates charged by the four US General attorney s were higher than the prevailing market rates, given these attorneys’ legal experience. App., Vol. X at 42-48. GuideOne also contended that Mr. Bu kowski’s presence at trial was unnecessary. The district court granted US Genera l’s motion and awarded the lodestar amount—$391,295.50. In reaching that decisi on, the district court found that (1) US General’s attorneys’ hourly rates were reasonable—thou gh “toward the high end of reasonable rates”—given the prevailing mark et rates, App., Vol. X at 281; (2) US General’s attorneys had “achieved a high degr ee of success in this case” in light of the large jury verdict, which supp orted relatively high hourly rates, id . at 282; and (3) the amount of time US General’s atto rneys spent on the case was reasonable, Appellate Case: 22-1145 Document: 010110780343 Date Filed: 12/12/2022 Page: 2021 including the time that Mr. B ukowski spent at trial. The court noted that “Mr. Bukowski’s extensive knowled ge of the record was importa nt to preparation of trial witnesses and developing strategy for direct and cross examination at trial.” Id

. at 282. Legal Background As noted, Colo. Rev. Stat. § 10-3-1116(1) provides that a plaintiff who brings a successful unreasonable delay claim under § 10-3-1115 can recover “reasonable attorney fees.” We appl y Colorado law to assess th e reasonableness of the fee request. See Scottsdale Ins. Co. v. Tolliver , 636 F.3d 1273, 1279 (10th Cir. 2011). Under Colorado law, “[i]f a statute pr oviding for a fee award does not provide a specific definition of ‘reas onableness,’ the amount of the award must be determined in light of all the circumstances, base d upon the time and effo rt reasonably expended by the prevailing party’s attorney.” Tallitsch v. Child Support Servs., Inc ., 926 P.2d 143, 147 (Colo. App. 1996). “The initia l estimate by the court of a reasonable attorney fee is reached by calculation of the ‘lodestar’ amount. This amount represents the number of hours reasonabl y expended multiplied by a reasonable hourly rate and carries with it a str ong presumption of reasonableness.” Id . After calculating the lodestar, the district cour t may increase or decr ease the fee award “based on the degree of success achieved.” Id . at 148. In determining a reasonable hourly rate, the district court should consider “the prevailing market rate by private lawyer s in the community,” as well as the “experience, reputation, and ability ” of the lawyers seeking fees. Payan v. Nash Appellate Case: 22-1145 Document: 010110780343 Date Filed: 12/12/2022 Page: 2122 Finch Co ., 310 P.3d 212, 221 (Colo. App. 2012 ). After identifying a reasonable hourly rate, the district court must also assess the “nece ssity for the hours billed.” In re Marriage of Aragon , 444 P.3d 837, 841 (Colo. App. 2019). Analysis Because GuideOne has not shown on appeal that the district court erred in its factual determinations underlying the fee award , the court did not abuse its discretion in approving that award.

a. Hourly rate Both parties presented reports on the reasonableness of the proposed hourly rates from experienced Denver attorneys familiar with the local legal market. Compare App., Vol. VI at 258-59 with App., Vol. X at 29-30. GuideOne does not explain how the district c ourt clearly erred in crediting US General’s expert over GuideOne’s. Because US Ge neral supported its fee reque st with evid ence about the Denver legal market, the district court’ s determination that those fees were reasonable has “factual supp ort in the record.” National Fitness Holdings, Inc ., 749 F.3d at 1206. The district court therefore did not clearly err in finding that US General’s proposed hourly rat es were reasonable in light of the Denver legal market. 5

5 The district court noted that US Gen eral’s hourly rates were “toward the high end of reasonable rates for this type of litigation.” App., Vol. X at 281. We agree. But because US General in troduced expert evidence su ggesting that the proposed rates were within the reas onable range in the Denver market, we cannot say the district court abused its disc retion in approving those rates. Appellate Case: 22-1145 Document: 010110780343 Date Filed: 12/12/2022 Page: 2223 b. Degree of success In addition to its legal market findi ng, the district court found that US General’s proposed hourly rates were reasonable because its attorneys “achieved a high degree of success in this case,” App., Vol. X at 282—a jury verdict of almost $300,000, which the court la ter doubled under Colo. Rev. Stat. § 10-3-1116 at US General’s request. GuideOne perfunctorily challenges the district court’s as sessment of US General’s success. Aplt. Br. at 29. It suggests that because the jury awarded no general damages on US General’s breach-o f-contract claim, US General achieved only “limited success.” Aplt. Br. at 29. But this ignores the large unreasonable delay award. Viewing the case as a whole, we conc lude the district court did not clearly err in determining US General’s attorneys ach ieved a “high degree of success.” App., Vol. X at 282. And, under Colorado law, a high “degree of success achieved” supports a largerfee award. Tallitsch , 926 P.2d at 147.

c. Number of hours GuideOne’s primary challenge on appeal to the number of hours used for the lodestar calculation is its argument that Mr. Bukowski’s pres ence at trial was
unnecessary. 6 It provides no reason for us to disagree with the district court’s

6 GuideOne also suggest s the time US General sp ent on summary judgment briefing should be deducted from the lodest ar because its summa ry judgment motions “only became necessary” when “P laintiff[] fail[ed] to origin ally bring this lawsuit in the name of the correct party.” Aplt. Br. at 31. We disagree. As noted above, Crossroads was the or iginal plaintiff, but had assigned its rights under the insurance contr act to US General and succes sfully moved to join US Appellate Case: 22-1145 Document: 010110780343 Date Filed: 12/12/2022 Page: 2324 analysis. The district cour t observed that even though Mr. Bukowski did not examine witnesses or deliver the opening statement or closing argument, his “extensive knowledge of the record” helped US Genera l strategize at trial. App., Vol. X at 281-82. US General’s billing records confir m this point. On each day of the trial, Mr. Bukowski billed time for assisting the other attorney s in their preparation of witnesses and trial arguments , including legal research. See, e.g. , App., Vol. VI at 238 (Mr. Bukowski bills time for “resea rch[ing] directed verdict standards” and “work[ing] with Mike Duffy to review tr ial notes and prepare closing argument.”). The district court thus did not clearly err in determining th at Mr. Bukowski’s presence at trial was reasonable. For these reasons, we affirm the dist rict court’s attorney fees award.

General as plaintiff. Guid eOne suggests that an erro r by US General’s attorneys necessitated the summary judgment briefi ng and unnecessarily increased the number of hours they spent on the case. Aplt. Br. at 31. Becaus e GuideOne fails to develop this contention, it is arguably waived. See Adler v. Wal–MartStores, Inc., 144 F.3d 664, 679 (10th Cir. 1998) (“Arguments inad equately briefed in the opening brief are waived.”). Also, as the di strict court observed, the i ssues in the summary judgment briefing had nothing to do with which party was the proper pl aintiff. App., Vol. X at 282; see also Dist. Ct. Doc. 28 (GuideOne’s fi rst motion for summary judgment); App., Vol. II at 9-11 (GuideOne’s second motion for summary judgment). We see no reason to deduct hours related to summary judgment briefing. Appellate Case: 22-1145 Document: 010110780343 Date Filed: 12/12/2022 Page: 2425 III. CONCLUSION We affirm the district court’s judgment.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge Appellate Case: 22-1145 Document: 010110780343 Date Filed: 12/12/2022 Page: 25