Appellate Case: 23-1131 Document: 010111063311 Date Filed: 06/11/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 11, 2024 _________________________________ Christopher M. Wolpert Clerk of Court ASPHALT RECOVERY SPECIALISTS, INC.; SEDER INVESTMENT LLC; STEVEN SEDER; KAREN SEDER,
Plaintiffs - Appellants,
v. No. 23-1131 (D.C. No. 1:22-CV-01952-PAB-MDB) ARTHUR J. GALLAGHER & CO., d/b/a (D. Colo.) Gallagher Centennial Insurance Agency,
Defendant - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before MORITZ, MURPHY, and CARSON, Circuit Judges. _________________________________
Karen and Steven Seder, Seder Investment LLC, and Asphalt Recovery
Specialists, Inc. (ARS) filed a complaint alleging that insurance broker Arthur J.
Gallagher & Co. (Gallagher) negligently procured an environmental premises
liability insurance policy for ARS. The district court dismissed the complaint, ruling
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 23-1131 Document: 010111063311 Date Filed: 06/11/2024 Page: 2
that the Seders and Seder Investment lacked standing and that ARS failed to state a
claim.
We conclude that although ARS’s constitutional standing is sufficient for
jurisdictional purposes, the Seders and Seder Investment fail to state a claim because
they allege no connection to the insurance policy and no facts connecting themselves
to Gallagher’s brokerage services. ARS, for its part, fails to plausibly assert that
Gallagher owed it a duty, breached that duty, made any misstatements, or failed to
disclose any information, and its claims premised on failure to advise or warn are
invalid under Colorado law. We accordingly affirm but remand in part for the district
court to enter the dismissal as to the Seders and Seder Investment with prejudice.
Background
According to the complaint, ARS is a dissolved Colorado corporation that
recycled asphalt shingles at a facility located on property owned by Seder
Investment. The Seders are the former owners of ARS and are the sole members of
Seder Investment.
The complaint alleges that ARS “engaged [Gallagher] to procure an
environmental premises liability insurance policy in order to provide coverage for the
on-site cleanup of any pollution or environmental cleanup [that] may be required at
the [asphalt-recycling f]acility.” App. 38. Gallagher allegedly “procured a Pollution
Liability Insurance Policy from Westchester Surplus Lines Insurance Company,”
effective for one year beginning on July 6, 2017, and renewed for a second year on
July 6, 2018. Id. But according to the complaint, “[d]espite [ARS’s] specific request
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that [Gallagher] procure a policy which would provide coverage for on-site removal
of pollutants, [Gallagher] failed to procure such a policy.” Id. As a result, when
“[t]he Colorado Department of Public Health and Environment required closure of
the [ARS recycling f]acility due to a pollution event,” plaintiffs had “to remove solid
waste . . . at their own cost and expense” and “ended up having no insurance
coverage.” Id. at 38–39.
Based on these allegations, plaintiffs asserted five overlapping negligence
claims against Gallagher in state court. Gallagher removed the action to federal court
and moved to dismiss. The district court first concluded that the Seders and Seder
Investment lacked standing to bring any claims against Gallagher. It further ruled, in
relevant part, that ARS failed to state any negligence claims because Gallagher owed
no duty to ARS and because Colorado law precluded any claim based on Gallagher’s
alleged failure to advise of risk. Given these rulings, the district court dismissed the
complaint without prejudice as to the Seders and Seder Investment and with prejudice
as to ARS.
Plaintiffs appeal.
Analysis
Plaintiffs challenge both the district court’s standing ruling and its assessment
that ARS failed to state claim. Both are issues that we review de novo. See Rio
Grande Found. v. Oliver, 57 F.4th 1147, 1159–60 (10th Cir. 2023) (standing);
Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1104 (10th Cir.
3 Appellate Case: 23-1131 Document: 010111063311 Date Filed: 06/11/2024 Page: 4
2017) (failure to state a claim). Before turning to that de novo review, we briefly set
out the overarching legal framework of each issue.
Constitutional standing implicates subject-matter jurisdiction and derives from
Article III of the Constitution, which permits federal courts to decide only “[c]ases”
or “[c]ontroversies.” U.S. Const. art. III, § 2; see also Rio Grande, 57 F.4th at 1159–
60. “To satisfy Article III’s case-or-controversy requirement, a plaintiff must
demonstrate standing to sue by establishing” three things: (1) an injury that (2) can
be traced to the defendant’s conduct and (3) is likely to be redressed by a favorable
judicial decision. Colo. Outfitters Ass’n v. Hickenlooper, 823 F.3d 537, 543 (10th
Cir. 2016).
As for failure to state a claim, Federal Rule of Civil Procedure 12(b)(6)
requires a plaintiff to “plead sufficient factual allegations ‘to state a claim to relief
that is plausible on its face.’” Brokers’ Choice, 861 F.3d at 1104 (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim is facially plausible
‘when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.’” Id. (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). We typically limit our review to the
complaint itself, but we may also properly consider “documents referred to in the
complaint if the documents are central to the plaintiff’s claim and the parties do not
dispute the documents’ authenticity.” Waller v. City & Cnty. of Denver, 932 F.3d
1277, 1282–83 (10th Cir. 2019) (quoting Jacobsen v. Deseret Book Co., 287 F.3d
936, 941 (10th Cir. 2002)). In so doing, “we accept the well-pleaded facts alleged as
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true and view them in the light most favorable to the plaintiff, but [we] need not
accept ‘[t]hreadbare recitals of the elements of a cause of action [that are] supported
by mere conclusory statements[]’ or allegations plainly contradicted by properly
considered documents or exhibits.” Clinton v. Sec. Benefit Life Ins. Co., 63 F.4th
1264, 1275 (10th Cir. 2023) (second and third alterations in original) (citations
omitted) (quoting Iqbal, 556 U.S. at 678). “An allegation is conclusory where it
states an inference without stating underlying facts or is devoid of any factual
enhancement.” Id. (quoting Brooks v. Mentor Worldwide LLC, 985 F.3d 1272, 1281
(10th Cir. 2021)).
Following the district court’s and the parties’ lead, we organize our discussion
around the specific plaintiffs, beginning with the Seders and Seder Investment before
turning to ARS.
I. The Seders and Seder Investment
Plaintiffs argue that the district court wrongly concluded the Seders and Seder
Investment lack standing to assert negligence claims against Gallagher. At the outset,
we note that although the district court did not directly refer to principles or authority
related to constitutional standing, it dismissed the claims at issue without prejudice—
the appropriate disposition when a court lacks subject-matter jurisdiction based on
the absence of constitutional standing. See Brereton v. Bountiful City Corp., 434 F.3d
1213, 1218 (10th Cir. 2006) (“[D]ismissals for lack of jurisdiction should be without
prejudice because the court, having determined that it lacks jurisdiction over the
action, is incapable of reaching a disposition on the merits of the underlying
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claims.”). Nevertheless, our review of the district court’s “standing” analysis reveals
that it was, in fact, a merits analysis. The district court determined that the Seders and
Seder Investment were neither parties to nor third-party beneficiaries of the contract
and were therefore not in a position to enforce any rights or duties under the
contract.1 These are merits rulings that do not go to jurisdiction.2 See Colony Ins. Co.
v. Burke, 698 F.3d 1222, 1228 n.6 (10th Cir. 2012) (explaining that “being in a
position to assert or enforce legal rights or duties . . . goes to the merits of the claim
and not the jurisdiction of this [c]ourt to hear it in the first instance”).
That being said, we do agree with the district court’s underlying assessment,
albeit not its “standing” label, that the Seders could not sue because they were not
insureds under the policy and that Seder Investment could not sue because it was not
a third-party beneficiary of the policy.3 First, the policy identifies only one insured:
1 The district court also reasoned that the Seders could not sue as shareholders of ARS. But because the Seders do not dispute that ruling on appeal, we do not consider it here. 2 For the sake of thoroughness, and because we have a duty to assure ourselves of our own jurisdiction, we briefly address Article III standing and easily conclude that it exists here. See Colo. Outfitters, 823 F.3d at 543 (noting that “a federal court can’t ‘assume’ a plaintiff has demonstrated Article III standing in order to proceed to the merits of the underlying claim”). No one disputes here that ARS satisfies the three prongs of injury, traceability, and redressability: ARS alleges it was injured by Gallagher’s negligent failure to procure the coverage it requested, and a ruling in its favor would redress that injury. See id. And for constitutional purposes, it suffices if one plaintiff has standing. Town of Chester v. Laroe Ests., Inc., 581 U.S. 433, 439 (2017). So there is a live case or controversy, and subject-matter jurisdiction is not in question. 3 Colony Insurance described “being in a position to assert or enforce legal rights or duties” as “statutory or contractual standing.” 698 F.3d at 1228 n.6. We opt not to use such terminology in the interest of avoiding confusion between jurisdictional and merits issues. See Cornhusker Cas. Co. v. Skaj, 786 F.3d 842, 850– 6 Appellate Case: 23-1131 Document: 010111063311 Date Filed: 06/11/2024 Page: 7
ARS. And although the policy also defines “[i]nsured[s]” to include “any past or
present director, officer, partner, employee, temporary or leased worker of the named
insured while acting within the scope of his or her duties,” plaintiffs do not allege
that the Seders fall into any of those categories. App. 184. Plaintiffs also highlight on
appeal that “[w]ith respect to a limited liability company or a trust, insured also
means any member or trustee while acting within the scope of his or her duties as
such.” Id. But ARS is not a limited liability company, so this provision does not
apply.
Second, as for Seder Investment, a party is only a third-party beneficiary of a
contract if it is apparent that the contracting parties intended such a benefit. See
Jefferson Cnty. Sch. Dist. No. R-1 v. Shorey, 826 P.2d 830, 843 (Colo. 1992). The
district court pointed out that “[t]he complaint alleges no facts indicating that the
agreement between ARS and Gallagher to procure an insurance policy was intended
to benefit Seder Investment.” App. 230. Rather than challenge this interpretation of
the complaint, plaintiffs argue on appeal that Seder Investment is a third-party
beneficiary because it “is the landlord and owner of the property . . . and as such has
been damaged by the environmental pollution at the facility.” Aplt. Br. 19. But the
alleged harm to Seder Investment doesn’t overcome plaintiffs’ failure to plead any
51 (10th Cir. 2015) (rejecting “standing” characterization and instead “treat[ing] the issue of the right to contest coverage under the [p]olicy as the substantive question that it actually is”). 7 Appellate Case: 23-1131 Document: 010111063311 Date Filed: 06/11/2024 Page: 8
facts showing that ARS and Gallagher intended the policy to benefit Seder
Investment.
Moreover, in separately concluding that no plaintiff stated a claim, the district
court noted that “the complaint alleges no facts indicating that any plaintiff other
than ARS engaged Gallagher to procure the insurance policy.” App. 235. Indeed,
although the complaint alleges that Gallagher negligently procured an insurance
policy, it includes no allegations that either the Seders or Seder Investment ever
asked Gallagher to procure a policy or had any relationship with Gallagher. Thus, any
duty on Gallagher’s part flows only to ARS. And as the district court noted below,
“[p]laintiffs have cited no authority supporting the premise that an insurance broker
owes legal duties to parties who did not engage its services.” Id.
Because the Seders are not parties to the contract, Seder Investment is not a
third-party beneficiary of the contract, and neither alleges any connection to
Gallagher’s alleged negligence, these plaintiffs fail to state a claim upon which relief
can be granted. See Fed. R. Civ. P. 12(b)(6). But because we affirm the dismissal of
these parties on the merits and not for lack of Article III standing, we remand for the
district court to enter the dismissal as to these plaintiffs with prejudice.
II. ARS
Plaintiffs next argue that the district court erred in dismissing ARS’s five
interrelated negligence claims against Gallagher, its insurance agent. Under Colorado
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law,4 “insurance agents have a duty to act with reasonable care toward their
insureds.” Kaercher v. Sater, 155 P.3d 437, 441 (Colo. App. 2006). For instance,
when “an insurance broker or agent . . . agrees to obtain a particular form of
insurance coverage for the person seeking such insurance,” the broker or agent “has a
legal duty to obtain such coverage or to notify the person of his failure or inability to
do so.” Bayly, Martin & Fay, Inc. v. Pete’s Satire, Inc., 739 P.2d 239, 243 (Colo.
1987); see also Sewell v. Great N. Ins. Co., 535 F.3d 1166, 1171–72 (10th Cir. 2008)
(discussing these principles of Colorado law and applying them to different claims
asserted against insurance broker). On the other hand, insurance brokers or agents
have “no affirmative duty to advise or warn [their] customer[s] of provisions
contained in an insurance policy” unless there is “a special relationship between the
insured and the insurer’s agent.” Kaercher, 155 P.3d at 441. These general principles
guide our analysis of ARS’s five claims, which we group into three categories and
review in turn.
A. Negligence
ARS first asserts a generalized claim for negligence, which requires
allegations that Gallagher owed a duty, breached that duty, and thus caused ARS
damages. See Westin Operator, LLC v. Groh, 347 P.3d 606, 612 (Colo. 2015) (listing
elements of negligence claim). For this claim, ARS alleges that Gallagher “owed a
4 Following the parties’ lead, we assume that Colorado law applies in this diversity action. See Brokers’ Choice, 861 F.3d at 1099 (“Because this is a diversity case, we . . . apply the substantive law of the forum state, Colorado, to analyze the underlying claims.”). 9 Appellate Case: 23-1131 Document: 010111063311 Date Filed: 06/11/2024 Page: 10
duty . . . to exercise the care [of] reasonably careful insurance brokers, producers,
and agents.” App. 41. Fleshing out this general statement, the complaint alleges that
(1) ARS told Gallagher it wanted an environmental premises liability insurance
policy to cover “the on-site cleanup of any pollution or environmental cleanup which
may be required at the [f]acility” and (2) “[d]espite [the] specific request that
[Gallagher] procure a policy which would provide coverage for on-site removal of
pollutants, [Gallagher] failed to procure such a policy.” Id. at 38.
But notably absent from the complaint, as the district court explained, is any
allegation that Gallagher ever agreed to procure a policy that would comply with
ARS’s so-called “specific request.”5 Id. Such an agreement is a critical part of a
negligence claim against an insurance broker: Colorado specifically imposes a legal
duty on “an insurance broker or agent who agrees to obtain a particular form of
insurance coverage for the person seeking such insurance.” Bayly, 739 P.2d at 243
(emphasis added). For instance, Bayly held that “the existence of this duty” was not
in dispute where the evidence showed that the plaintiff specifically sought liquor
liability insurance and that the broker specifically agreed to obtain that coverage (but
then failed to do so). Id. at 241–43. This case lacks any similar allegations. As a
result, ARS fails to plausibly plead that Gallagher owed it any duty to obtain a
particular type of insurance coverage and fails to state a claim for negligence. See
5 At best, plaintiffs state that Gallagher “promised to perform or communicated an intention to perform an act knowing that undisclosed facts made their performance unlikely.” App. 40. But we need not accept this conclusory assertion, which is devoid of any factual support in the complaint. See Clinton, 63 F.4th at 1275. 10 Appellate Case: 23-1131 Document: 010111063311 Date Filed: 06/11/2024 Page: 11
Univ. of Denver v. Whitlock, 744 P.2d 54, 56–57 (Colo. 1987) (“A negligence claim
must fail if based on circumstances for which the law imposes no duty of care upon
the defendant for the benefit of the plaintiff.”).
Although ARS’s failure to assert that Gallagher owed it any duty compels us
to affirm dismissal of ARS’s negligence claim, we note ARS also fails to plausibly
allege that Gallagher breached any assumed duty by failing to procure the requested
coverage. The allegation that Gallagher did not procure the coverage ARS requested
merely “states an inference”—that because ARS lacked insurance coverage for a
particular pollution incident, Gallagher must not have procured the coverage ARS
asked for—“without stating underlying facts.” Clinton, 63 F.4th at 1275. ARS’s
allegation is “devoid of any factual enhancement” about, for instance, what type of
coverage it asked for, what type of coverage Gallagher agreed to procure (if any), any
detail about the insurance claim ARS filed, and any detail about how or why that
insurance claim was denied. Id. (quoting Brooks, 985 F.3d at 1281). Indeed, ARS
does not even allege that it ever submitted an insurance claim. See Iqbal, 556 U.S. at
678 (explaining that pleading standard “does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-
harmed-me accusation” (quoting Twombly, 550 U.S. at 555)). And in fact, the policy
itself contradicts any inference that Gallagher failed to procure the requested
coverage. See Clinton, 63 F.4th at 1275 (stating that court need not accept allegations
that are contradicted by documents properly considered alongside complaint). The
policy covers “[c]leanup costs arising out of a pollution condition,” defined to
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include “reasonable and necessary expenses incurred in the . . . removal . . . of any
pollution condition.” App. 180, 183. This aligns with the complaint’s allegation that
ARS asked Gallagher to procure “coverage for the on-site cleanup of any pollution or
environmental cleanup.” Id. at 38. The similarities between this policy language and
the allegations in the complaint render even more implausible any inference that
Gallagher failed to procure specifically requested coverage simply because ARS
lacked coverage for a vaguely described pollution incident. Thus, even if ARS had
pleaded that Gallagher owed ARS a duty, we would affirm dismissal of the
negligence claim based on ARS’s failure to plausibly plead that Gallagher breached
that duty.
B. Negligent Failure to Advise of Risk and to Warn
ARS next asserts two related claims it characterizes as negligent failure to
advise of risk and negligent failure to warn. On the former, it alleges that Gallagher
“had a duty to fully, fairly, and accurately advise . . . as to the nature, type, and terms
of necessary insurance required for” ARS’s insurance needs. App. 41. On the latter,
ARS alleges that Gallagher “had a duty to fully, fairly[,] and accurately advise . . . of
the risk of the type of insurance products that [Gallagher] was placing as agent and
insurance producer.” Id.
These claims contradict Colorado law. “Insurance agents or brokers are not
personal financial counselors and risk managers, approaching guarantor status, and it
is well settled that agents have no continuing duty to advise, guide, or direct a client
to obtain additional coverage.” Kaercher, 155 P.3d at 441; cf. also DC-10 Ent., LLC
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v. Manor Ins. Agency, Inc., 308 P.3d 1223, 1229 n.2 (Colo. App. 2013) (“We note
that the duty arising from a broker’s relationship with an insured that gives rise to a
negligence claim is distinct from the duty of good faith and fair dealing arising from
an insured-insurer relationship.”). Thus, “absent a special relationship between the
insured and the insurer’s agent, that agent has no affirmative duty to advise or warn
his or her customer of provisions contained in an insurance policy.” Kaercher, 155
P.3d at 441; see also Apodaca v. Allstate Ins. Co., 232 P.3d 253, 259 (Colo. App.
2009) (“[A]n insurance agent or company does not have a common[-]law duty to
ensure complete protection to the policyholder or to recommend higher policy limits,
but only has a duty to exercise a reasonable duty of care.”). And there are no facts in
the complaint from which we could infer that ARS and Gallagher had a special
relationship, which exists when the “broker assumes additional responsibilities
beyond those which attach to an ordinary, reasonable agent possessing normal
competencies and skills.”6 Kaercher, 155 P.3d at 441. Because Gallagher had no duty
to advise or warn ARS about risks of insurance coverage, ARS fails to state a claim
for negligent failure to advise of risk or negligent failure to warn. See Whitlock, 744
P.2d at 56–57.
6 At best, the complaint baldly asserts that Gallagher “was in a fiduciary or confidential relationship with” ARS, App. 40, but this is a conclusory statement lacking supporting factual details, and we need not accept it. See Clinton, 63 F.4th at 1275. Nothing in the complaint indicates that Gallagher was anything more than a typical insurance broker in a typical relationship with its client, and under Colorado law, that relationship does not rise to the level of a fiduciary relationship. Cf. DC-10, 308 P.3d at 1229 n.2. 13 Appellate Case: 23-1131 Document: 010111063311 Date Filed: 06/11/2024 Page: 14
C. Negligent Misrepresentation and Concealment
ARS also asserts claims for negligent misrepresentation and negligent
concealment. For negligent misrepresentation, ARS “must prove that (1) [Gallagher]
supplied false information in a business transaction; (2) [Gallagher] failed to exercise
reasonable care or competence in obtaining or communicating that information; and
(3) [ARS] justifiably relied on the false information.” Platt v. Aspenwood Condo.
Ass’n, Inc., 214 P.3d 1060, 1067 (Colo. App. 2009). For negligent concealment,
assuming such a claim exists under Colorado law, the analysis is similar but focuses
on a failure to disclose information rather than an affirmative disclosure of false
information. See Leprino Foods Co. v. DCI, Inc., 727 F. App’x 464, 472 & n.5 (10th
Cir. 2018) (noting that “it is unclear whether a claim for negligent nondisclosure is
viable at all in Colorado” and applying duty standards from Restatement (Second) of
Torts § 551);7 Cent. Masonry Corp. v. Bechtel Nat’l, Inc., 857 F. Supp. 2d 1160,
1163–64 (D. Colo. 2012) (concluding that Colorado would treat negligent-
concealment claim similarly to claim for negligent misrepresentation). But see Cahey
v. IBM Corp., No. 20-cv-00781, 2020 WL 5203787, at *8 (D. Colo. Sept. 1, 2020)
(unpublished) (concluding “that the weight of intermediate Colorado court decisions
decline to find a viable claim for negligent misrepresentation based on an omission”).
As an initial matter, these negligence claims require the existence of a duty of
reasonable care in disclosing information. See Platt, 214 P.3d at 1067 (noting
7 We cite Leprino and other unpublished caselaw for persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). 14 Appellate Case: 23-1131 Document: 010111063311 Date Filed: 06/11/2024 Page: 15
element of “reasonable care or competence in obtaining or communicating . . .
information”); Leprino, 727 F. App’x at 472 (describing “five scenarios under which
a party has a duty to disclose”). Thus, the district court appropriately dismissed these
claims for the same reason it dismissed ARS’s general negligence claim: the failure
to plead plausible facts from which a duty could be inferred. Yet these claims fail for
a more obvious reason—ARS fails to allege facts from which we can infer that
Gallagher made any false statements or failed to disclose any information. In
particular, the complaint alleges only that Gallagher (1) “made misrepresentations of
material facts or supplied false information . . . in the[] purchase, ownership, and
procurement of Pollution Liability Insurance” and (2) “stated some but not all
material facts related to the procurement of Pollution Liability Insurance and knew,
or should have known, that those facts would create a false impression in the mind of
[p]laintiffs.” App. 39–40. Like ARS’s other allegations, these assertions are “devoid
of any factual enhancement.” Clinton, 63 F.4th at 1275 (quoting Brooks, 985 F.3d at
1281). They are instead “[t]hreadbare recitals of the elements of a cause of action,”
which “do not suffice.” Iqbal, 556 U.S. at 678. For instance, the complaint provides
no factual detail about what Gallagher said or did not say to ARS, what Gallagher
knew or when, or what Gallagher concealed—indeed, the complaint does not allege
that Gallagher ever said anything to ARS. Thus, ARS fails to plausibly allege that
Gallagher made any misrepresentations or concealed any facts and fails to state a
claim for negligent misrepresentation or concealment.
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In sum, because ARS fails to state any claims against Gallagher, we affirm the
district court’s order dismissing such claims.8
Conclusion
The Seders and Seder Investment fail to state a claim against Gallagher
because they allege no facts connecting themselves to the insurance policy or to
Gallagher’s brokerage services. As for ARS, it does not allege that Gallagher ever
agreed to procure the requested coverage, so it cannot plausibly assert that Gallagher
owed it any duty. It additionally fails to plausibly plead that Gallagher breached any
duty to procure specific coverage. For these reasons, ARS fails to state a claim for
negligence. Further, ARS’s claims premised on failure to advise or warn are invalid
under Colorado law. Finally, ARS fails to state any claims for misrepresentation or
concealment both because of the absence of any duty and because ARS does not
plausibly allege that Gallagher made any false statements or failed to disclose any
information. We therefore affirm the district court’s dismissal of the complaint, but
8 Plaintiffs’ reply brief asks, in a conclusory fashion and for the first time, that they be allowed to amend their complaint. We need not consider this belated argument, which was raised neither below nor in plaintiffs’ opening brief. See Reedy v. Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011) (following usual rule “that a party waives issues and arguments raised for the first time in a reply brief” (quoting M.D. Mark, Inc. v. Kerr-McGee Corp., 565 F.3d 753, 768 n.7 (10th Cir. 2009))). We additionally need not reach Gallagher’s alternative arguments about the statute of limitations or the heightened pleading standards of Federal Rule of Civil Procedure 9(b). 16 Appellate Case: 23-1131 Document: 010111063311 Date Filed: 06/11/2024 Page: 17
we remand in limited part for the district court to enter the dismissal as to the Seders
and Seder Investment with prejudice.
Entered for the Court
Nancy L. Moritz Circuit Judge