A recent Colorado federal court decision is one of those cases that should be studied carefully by anyone representing policyholders. 1 It is not a case about whether hail damage is covered. The court acknowledged that hail damage is covered. It is not even truly about whether the property sustained damage. Instead, it is about how cases should be handled before litigation and how they are presented during litigation. The case is a warning about how silence before suit can shape the entire outcome in favor of the insurance company.
The court granted summary judgment for the insurer because the policyholder failed to establish evidence of covered damage in a manner acceptable under Rule 56. That sounds simple enough, but the reasoning reveals something deeper. The insurer inspected the property and concluded there was no hail damage. The insurer then asked for additional information. None was provided before suit. Months later, during litigation, the policyholder finally disclosed an estimate made before litigation and relied on an expert report made months after litigation commenced. But by then, it was too late. The court would not consider that evidence because it was not properly presented under the court’s procedural rules.
This is where the case turns from legal theory into practical reality. The court did not weigh competing expert opinions. It did not decide which side was more persuasive on causation. It simply held that no properly presented evidence created a genuine dispute of fact. As a result, the insurer’s version of events was unrebutted.
There is a lesson here about litigation discipline that cannot be overstated. Evidence is not enough. Evidence must be presented correctly, cited properly, and framed in accordance with the court’s rules. The policyholder had an expert report for causation and damages. The court essentially said, “That may be so, but you did not present it in the way required for me to consider it.” That is a hard result, but it is a predictable one in federal court. Judges expect lawyers to follow procedural rules precisely, especially at the summary judgment stage.
In my opinion, what happened before the lawsuit was filed is equally important. After the insurer denied the claim, it asked for additional information. The policyholder did not provide any meaningful response. No estimate, expert opinion, or documented disagreement with the insurer’s findings. Instead, the case proceeded to litigation with only silence from the policyholder after the denial.
From a purely legal standpoint, there is often no explicit requirement to provide such information before filing suit. But from a practical standpoint, that silence becomes part of the story. The court repeatedly emphasized that the insurer asked for information and received none. That fact shaped how the court viewed the reasonableness of the insurer’s conduct. It also framed the case as one where the insurer made a decision based on the information available at the time. The policyholder never responded.
Reply briefs are often boring and a waste of time to read. Not this time. The insurer sharpened its argument by focusing on the idea that it was deprived of the opportunity to reconsider its decision. It argued that it was placed in a position where it had to either deny the claim or pay it without sufficient support. That framing is not just legal but one that obviously resonated with how many judges think about fairness and efficiency. Courts do not want to be the first step in resolving a claim when it appears that the dispute could have been addressed with additional communication.
The judge did not explicitly rule on prejudice in the traditional sense. Instead, the court effectively accepted the insurer’s narrative through a different lens. It held that no reasonable jury could find a breach where the insurer relied on its inspection, and the policyholder provided no contrary information before filing suit. That is prejudice by another name, expressed through reasonableness.
Another subtle but important point is the timing of evidence. The court made clear that the reasonableness of an insurer’s decision must be evaluated based on what the insurer knew at the time. Evidence developed after litigation begins may help prove the claim, but it does little to establish that the insurer acted unreasonably when it denied the claim. That distinction is critical for bad faith claims, which were also dismissed in this case.
There is also a human element to this decision that should not be ignored. Judges are influenced, consciously or not, by whether a case appears to have been avoidable. When a record shows that an insurer requested information, received nothing, and was then sued, it creates a perception that litigation may have been premature. That perception can affect how strictly the court applies procedural rules and how it views close factual questions.
So what are the lessons for policyholders? First, after a denial, it is almost always beneficial to provide something meaningful in response. Provide an estimate, photographs, an expert opinion, or at least a clear explanation of why the insurer’s conclusions are wrong. These acts simply create a second decision point and build a record that demonstrates cooperation and reasonableness. Indeed, my experience is that many insurers, if acting in good faith, will reevaluate the case and pay the claim.
Second, evidence must be presented in a format that the court can use. That means following Rule 56 and the court’s practice standards meticulously. Facts must be stated clearly, supported by specific citations, and organized in a way that allows the court to determine what is disputed. Failure to do so can result in the court disregarding evidence entirely, no matter how strong it may be.
Third, the story of the case begins long before the complaint is filed. Silence can be interpreted as non-cooperation. A lack of pre-suit communication can be framed as strategic withholding. Those perceptions may not be legally dispositive, but they influence how courts evaluate reasonableness and fairness.
Finally, this case is a reminder that litigation is not just about having the right facts or the right law. It is about timing, presentation, and narrative. The policyholder may very well have had a legitimate claim and winning case for hail damage. But the court never reached that question in a meaningful way because of how the case was developed and presented.
There is an old saying that cases are won or lost on the facts. This case adds an important refinement that cases are won or lost on how those facts are presented and when they are shared.
Thought For The Day
“Well done is better than well said.”
— Benjamin Franklin
1 Gilmore v. Owners Ins. Co., No. 1:24-cv-02669 (D. Colo. Mar. 24, 2026). See also, Owners Motion for Summary Judgment, Gilmore Response, and Owners Reply.