PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ NEIL HALL, Plaintiff - Appellant,

v. ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Defendant - Appellee. No. 21-1040

________________ _________________ Appeal from the United States District Court for the District of Colorado (D.C. No. 1:19-CV-02604-DDD-NYW)

________________ _________________ Mark R. Levy (Matthew W. Hall, and Ryan E. Nichols with him on the briefs), Levy Law, PC, Englewood, Colorado , for Plaintiff - Appellant. Robert S. Hunger (Kurt H. Henkel and Justin H. Zouski, with him on the brief), Tucker Holmes, P.C., Centennial, Colora do, for Defendant - Appellee.

________________ _________________ Before MORITZ , KELLY , and BRISCOE , Circuit Judges.

________________ _________________ KELLY , Circuit Judge.

________________ _________________ Plaintiff-Appellant Neil Hall appeals fro m the district court’s grant of summary judgment in favor of Defendant -Appellee Allstate Fire and Casualty Insurance Company (Allstate) on his claim fo r underinsured motorist benefits. See FILED United States Court of Appeals Tenth Circuit 

### December 17, 2021 Christopher M. Wolpert Clerk of Court Appellate Case: 21-1040 Document: 010110620768 Date Filed: 12/17/2021 Page: 12 Hall v. Allstate Fire & Cas. Ins. Co., No. 19-cv-02604, 2021 WL 119344 (D. Colo. Jan. 12, 2021). Mr. Hall challenges the distri ct court’s determination that Allstate successfully asserted the affi rmative defense of failure to cooperate and that his bad faith claim also fails as a result. This court has juri sdiction under 28 U.S.C. § 1291, and we affirm.

Background On October 4, 2018, Mr. Hall was in jured in a car accident caused by underinsured motorist Teri Johnson. 1 Aplt. App. 72. Ms. Johnson only carried $25,000 in liability insurance coverage. 1 Aplt. App. 72. Mr. Hall carried underinsured motorist coverage through Allstate. 1 Aplt. A pp. 72. Allstate gave Mr. Hall permission to settle with Ms. Johnson fo r her $25,000 limit. 1 Aplt. App. 72. On April 8, 2019, Mr. Hall’s counsel s ubmitted a request for benefits to Allstate asserting that he was entitled to more than the $25,000 he had received. 1 Aplt. App. 91. This request included a lis t of Mr. Hall’s medi cal expenses which totaled $27,619.18. 1 Aplt. App. 91–92. The letter stated: “Mr. Hall is continuing to receive medical care for the injuries he suffered in th e October 4, 2018 collision. I will continue to forward new records and bills as I receive them for your review.” 1 Aplt. App. 91. The letter al so stated: “If there is addi tional information that will assist in your evaluation, please let us know. ” 1 Aplt. App. 91. An Allstate claims adjuster reviewed the medi cal expenses in the letter and determined that the reasonable amount of expenses was $25,011.68. 1 Aplt. App. 92–93. On May 9, Appellate Case: 21-1040 Document: 010110620768 Date Filed: 12/17/2021 Page: 23 2019, Allstate sent Mr. Hall ’s counsel a payment of $11. 68 along with a letter that stated: “I will be in contact with you to resolve the remaining components of your client’s claim.” 1 Aplt. App. 96. Allstate claims adjuster Brittney Montoya called Mr. Hall’s counsel on May 20, 2019 and left a voicemail regarding Mr. Ha ll’s current treatmen t status. 1 Aplt. App. 97. On June 17, 2019, Ms. Montoya sent counsel a letter asking to discuss Mr. Hall’s treatment status. 1 Ap lt. App. 98. Ms. Montoya left another voicemail with counsel on July 9, 2019. 1 Aplt. App. 98. Ms. Montoya sent another letter to counsel on July 19, 2019. 1 Aplt. App. 98. On August 14, 2019, Ms. Montoya sent a third letter to counsel reque sting Mr. Hall’s medical reco rds and bills. 1 Aplt. App. 98. Counsel did not respond to any of th e five attempts over three months: two voicemails and three letters. 1 Aplt. App. 97–98. On August 20, 2019 — without any prior notice to Alls tate — Mr. Hall filed suit against Allstate for breach of contract , statutory unreasonable delay or denial of payment of benefits, and common law ba d faith. 1 Aplt. App. 29–38. During discovery, Mr. Hall disclosed that he ha d received treatment with the Brain and Behavior Clinic (the Clinic) from June 20 19 to August or September 2019, during the period in which Ms. Montoya repeatedly asked Mr. Hall for information about his current treatment status. Compare 1 Aplt. App. 97–98, with 1 Aplt. App. 215–16. Allstate filed a motion for summary judg ment based on an affirmative defense of failure to cooperate. 1 Aplt. App. 70–89 . Mr. Hall’s insurance policy contains the following provision: “An insured person must cooperate with us in the investigation, Appellate Case: 21-1040 Document: 010110620768 Date Filed: 12/17/2021 Page: 34 settlement and defense of a ny claim or lawsuit.” 1 Aplt. App. 244. Allstate argued that Mr. Hall could not recove r his benefits because he i gnored Allstate’s phone calls and letters, failed to inform Allstate of hi s additional treatment at the Clinic, and sued Allstate for bad faith. 1 Aplt. App. 70–8 9. The district court granted Allstate summary judgment as to all claims. 2 Aplt. App. 375. The court found that Mr. Hall’s failure to respond to Allstate’s repeated requests for information constituted a failure to cooperate. 2 Aplt. App. 377–79. Additionally, the court found that Allstate suffered a material and substa ntial disadvantage from Mr. Ha ll’s failure to cooperate because it forced Allstate to defend the case without the ability to properly investigate the claim. 2 Aplt. App. 379. The court also found that summary judgment was proper for Mr. Hall’s unreasonable delay 1 and bad faith claims because no benefits were owed and all of Mr. Hall’s claimed damages stemmed from the denial of benefits. 2 Aplt. App. 381–82. On appeal, Mr. Hall argues that the di strict court erred in concluding that Allstate had demonstrated s ubstantial and material prejudi ce. He further argues that Allstate failed to show that Mr. Hall acted deliberately or in bad faith and no evidence suggested a failure to perform any specific, enumerated obligation under the insurance policy. Finally, he challenges the grant of summary judgment on the bad faith claim.

1 Mr. Hall does not appeal the grant of summary judgment as to this claim. Appellate Case: 21-1040 Document: 010110620768 Date Filed: 12/17/2021 Page: 45 Discussion Our review is de novo and we apply th e same summary judgment standard as the district court. Cillo v. City of Gr eenwood Vill., 739 F.3d 451, 461 (10th Cir. 2013). Summary judgment must be grante d “if the movant shows that there is no genuine dispute as to any material fact a nd the movant is entitled to judgment as a matter of law.” Fed. R. Ci v. P. 56(a). However, we view the facts and their reasonable inferences in the light most fa vorable to the non-movant. Cillo, 739 F.3d at 461. Given a properly supported moti on for summary judgment on an affirmative defense, a non-movant mu st respond with signifi cantly probative evidence demonstrating a need for trial on that defe nse. Anderson v. Li berty Lobby, Inc., 477 U.S. 242, 249–50 (198 6); Helm v. Kansas, 656 F.3d 1277, 1284 (10th Cir. 2011).
A. Failure to Cooperate Defense fo r Breach of Contract Claim Under Colorado law, an insured may forfeit his right to recover if he fails to cooperate in violation of an insurance po licy provision. See Soicher v. State Farm Mut. Auto. Ins. Co., 351 P.3d 559, 564 (Colo. App. 2015). For an insurer to assert the affirmative defense of failu re to cooperate, it must show : (1) “the insured fails to cooperate with the insurer in some material and substan tial respect”; and (2) “this failure to cooperate materially and substa ntially disadvantaged the insurer.” Id. Although the question of whether an insured fa iled to cooperate is a question of fact, if “the record can produce no other result” th an a finding of a failure to cooperate, the insurer is entitled to summary judgment. Hansen v. Barmore, 779 P.2d 1360, 1364 (Colo. App. 1989). Appellate Case: 21-1040 Document: 010110620768 Date Filed: 12/17/2021 Page: 56 As to the first element of a failure to cooperate defense, Mr. Hall argues that an insurer must show that an insured’s actions constitu ting the failure to cooperate were deliberate and in bad faith. Aplt. Br. at 27–28 (citing Farmers Auto. Inter-Ins. Exch. v. Konugres, 202 P.2d 959, 963 (Colo. 1949)). As the district court rightfully pointed out, Konugres does not stand for this proposition. Hall, 2021 WL 119344, at *3. In that case, the Suprem e Court of Colorado merely stated that “a breach of the co-operation clause may be excu sed, if it develops that th e failure of the assured was due to mistake, and that there was no exerci se of bad faith on hi s part.” Konugres, 202 P.2d at 963. This case does not create an additional “bad faith” element in the failure to cooperate defense that Allstate was required to show. Rather, it provides a narrow situation where an insured’s failure to cooperate may be excused. Mr. Hall also cites a more recent Colo rado case for the propositi on that an intentional or deliberate action is required to violate a cooperation clause . Aplt. Reply Br. at 19–20 (citing State Farm Mut. Auto. Ins. Co. v. Secrist, 33 P.3d 1272, 1275 (Colo. App. 2001)). However, this case merely states the general purpose of a cooperation clause in an insurance policy. S ee Secrist, 33 P.3d at 1275. Even if intentionality were required, failing to respond to three letters and two phone calls within a three-month period and filing suit without notice one week after the fina l letter amply demonstrate a deliberate failure to communicate with Allstate. Mr. Hall also argues that fa ilure to cooperate in a ma terial and substantial way requires that the insured viol ate a specifically enumerated obligation in the insurance policy, rather than the general cooperati on language that Allstate relies on in this Appellate Case: 21-1040 Document: 010110620768 Date Filed: 12/17/2021 Page: 67 case. 2 Aplt. Br. at 30–34; Aplt. Reply Br. at 13 –17. He relies heavily on Ahmadi v. Allstate Insurance Co., 22 P.3d 576 (Colo. App. 2001), for this proposition. But Ahmadi held that a disagreem ent over the specific method of cooperation is not the same as failing to cooperate . See Ahmadi, 22 P.3d at 580; Polland v. State Farm Mut. Auto. Ins. Co., No. 19- cv-01416, 2020 WL 6799934, at *5 (D. Colo. Nov. 19, 2020). Here, Mr. Hall simply failed to answer any of Allstate’s requests for additional information, so he violated his basic contract ual duty to provide information to Allstate. See State Farm Mu t. Auto. Ins. Co. v. Brekke, 105 P.3d 177, 189 (Colo. 2004) (en banc). No further e numerated obligation is required to show his failure to cooperate. The district court co rrectly concluded that Mr. Hall’s failure to respond to five communications over three months could onl y be viewed as a failure to cooperate in a material and substantial way. See Polland v. St ate Farm Mut. Auto. Ins. Co., No. 19-cv-01416, 2019 WL 10 258801, at *5 (D. Colo. Oct. 25, 2019) (collecting cases), reh’g denied , Polland, 2020 WL 6799934. As to the second element of a failure to cooperate defense, Mr. Hall argues that Allstate submitted no ev idence that showed his failu re to cooperate rendered Allstate incapable of inves tigating his claim. Aplt. Br. at 19–20. However, the standard to establish a mate rial and substantial disadvant age is whether an insured’s

2 In addition, Mr. Hall argues the contr act language at issue is ambiguous. Aplt. Br. at 35. He also asserts th at general cooperation provisions are only enforceable in the context of third-party insurance claims. Aplt. Br. at 33. However, Mr. Hall did not develop these arguments be low, nor did he argue for plain error on appeal. As such, we will not consider these arguments. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 11 31 (10th Cir. 2011). Appellate Case: 21-1040 Document: 010110620768 Date Filed: 12/17/2021 Page: 78 conduct prevented a reasonable investigatio n under the circumstances, not whether an insurer’s investigation was re ndered impossible. See Walk er v. State Farm Fire & Cas. Co., No. 16-cv-00118, 2017 WL 1386341, at *3–4 (D. Colo. Feb. 23, 2017). Here, Allstate was prevented from conducti ng a reasonable investigation because Mr. Hall failed to respond to any of its co mmunications regarding information about additional treatment. See Polland, 2019 WL 10 258801, at *7. To the extent that Mr. Hall argues that any failure to respond to A llstate’s inquiries was immaterial because he had no additional information to provide , see Aplt. Br. at 21–22, this is belied by his disclosure during discovery that he was receiving treatment at the Clinic between June and September 2019. 1 Aplt. App. 215–16. This corre sponds to the same period in which Allstate repeatedly attemp ted to contact Mr. Hall. By failing to respond to Allstate’s inquirie s, Mr. Hall put Allstate “in the untenable position of either denying coverage or paying the cl aim without the means to investigate its validity.” Walker, 2017 WL 13 86341, at *4 (quoting 1 Allan D. Windt, Insurance Claims & Disputes § 3.2 (6th ed. 2016)). Separately, Allstate suffered a material and substantial di sadvantage because Mr. Hall’s failure to cooperat e forced it to defend a bad fait h lawsuit. See Cribari v. Allstate Fire & Cas. Ins. Co., 861 F. App’ x 693, 702 (10th Cir. 2021) (unpublished). 3 Having to defend a bad faith lawsuit puts an insurer at a disadvantage because “had plaintiff cooperated, Defendant would have had the rele vant information to make an

3 We cite this and othe r unpublished dispositions onl y for their persuasive value. 10th Cir. R. 32.1. Appellate Case: 21-1040 Document: 010110620768 Date Filed: 12/17/2021 Page: 89 informed offer prior to Plaintiff’s filing of the bad faith suit.” Id. Because it was Mr. Hall that initiated this action without providi ng Allstate with answ ers to its inquiries or notice that he intended to sue, Allsta te was put at a mate rial and substantial disadvantage in defending against his claims. Finally, Mr. Hall argues that under Colo rado law, Allstate was required to provide notice and opportunity to cure be fore asserting its fa ilure to cooperate defense. Aplt. Br. at 25–26. The district court correc tly concluded that Allstate raised its failure to cooper ate defense as soon as Mr. Hall’s failure to cooperate became prejudicial — in its an swer to Mr. Hall’s complain t. See 2 Aplt. App. 379– 80. Mr. Hall’s argument that he cured an y material disadvantage to Allstate by providing the requested information during litigation was not raised below and need not be considered here. See Richison, 634 F. 3d at 1131. Even if this court were to consider this argument, it lacks merit. Wher e, as here, the lawsuit itself is a prejudicial result of a plaintiff’s failu re to cooperate, providing the requested information during litigation does not cu re the source of prejudice because a defendant has already been forced to re tain counsel and face extra-contractual damages. See Cribari, 861 F. App’x at 704–05. The district court correctly concluded that Mr. Hall’s fail ure to cooperate resulted in a material and substantial disadvantage to Allstate.
B. Bad Faith Claim “It is settled law in Colorado that a bad faith claim must fail if, as is the case here, coverage was properly denied and th e plaintiff’s only claimed damages flowed Appellate Case: 21-1040 Document: 010110620768 Date Filed: 12/17/2021 Page: 910 from the denial of coverage.” MarkWest Hydrocarbon, Inc. v. Liberty Mut. Ins. Co., 558 F.3d 1184, 1193 (10th Cir. 2009). Because the district court found that Allstate properly denied coverage thr ough its failure to cooperate de fense, it properly granted summary judgment as to Mr . Hall’s bad faith claim.
AFFIRMED. Appellate Case: 21-1040 Document: 010110620768 Date Filed: 12/17/2021 Page: 10