Warren et al v. Liberty Mutual Fire Insurance Company

Filing 234

ORDER denying 154 defendant's Motion to Certify Questions of State Law to the Colorado Supreme Court, and For Stay of Action; denying 218 plaintiff's Motion to Certify Question of State Law. By Judge Philip A. Brimmer on 6/29/11.(mnf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 05-cv-01891-PAB-MEH
KAREN WARREN,
Personal Representative of the Estate of Kirk Warren,
Plaintiff,
v.
LIBERTY MUTUAL FIRE INSURANCE COMPANY,
a Massachusetts insurance company,
Defendant.
_____________________________________________________________________
ORDER DENYING MOTIONS TO CERTIFY
_____________________________________________________________________
This matter is before the Court on both parties’ motions to certify questions to the
Colorado Supreme Court [Docket Nos. 154, 218]. The motions are fully briefed and
ripe for disposition. The Court has jurisdiction over this action pursuant to 28 U.S.C.
§ 1332 based on diversity jurisdiction.
I. BACKGROUND
The factual and procedural background of this case has been detailed in two of
the Court’s previous orders, see Docket Nos. 124, 217; thus, the Court will only
summarize the procedural background as it is relevant to the instant motions. This
case is before the Court on remand from the Tenth Circuit, which ordered reformation
of the insurance policy at issue. See Warren v. Liberty Mut. Fire Ins. Co., 555 F.3d
1141, 1146 (10th Cir. 2009). After the Tenth Circuit opinion was issued, Kirk Warren,
the remaining plaintiff, passed away. The Court issued an order determining which

claims survived Mr. Warren’s death and which claims survived defendant’s motion for
summary judgment. See Docket No. 217 (“survival order”). Before the survival order,
defendant moved to stay the case and certify questions to the Colorado Supreme
Court. See Docket No. 154. After the survival order, the plaintiff also moved to certify a
question to the Colorado Supreme Court.
II. STANDARD OF REVIEW
Rule 21.1 of Colorado’s Rules of Appellate Procedure permits the Colorado
Supreme Court to answer a question of law certified to it by a United States district
court if the question “may be determinative of the cause then pending in the certifying
court and as to which it appears to the certifying court there is no controlling precedent
in the decisions of the [Colorado] Supreme Court.” Colo. App. R. 21.1(a). The decision
to certify a question is discretionary. See Massengale v. Okla. Bd. of Examiners in
Optometry, 30 F.3d 1325, 1331 (10th Cir. 1994). Certification may be appropriate
“where the legal question at issue is novel and the applicable state law is unsettled.”
Allstate Ins. Co. v. Brown, 920 F.2d 664, 667 (10th Cir. 1990).
III. DEFENDANT’S MOTION TO CERTIFY
Defendant’s motion seeks to stay the case and certify two separate questions to
the Colorado Supreme Court.
A. First Question
Defendant seeks certification of the following question:
Does an offer of added personal injury protection (“APIP”) benefits that
does not enumerate some of the four categories of eligible insureds, but
not [sic] does expressly exclude them either, constitute an implied
exclusion of the unnamed categories of insureds, thus rendering the offer
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of APIP benefits inadequate under former Colo. Rev. Stat. § 10-4-710
(2002)?
Docket No. 154 at 1. Defendant argues that in 2009, the Colorado Court of Appeals
addressed this question under factual circumstances very similar to the instant case in
Hudgins v. Financial Indem. Co., No. 07 CA 2173, 2009 WL 2622370, slip op. (Colo.
App. Aug. 27, 2009) (full opinion at Docket No. 154-3), holding that the insurer’s offer of
APIP coverage was adequate. Plaintiff responds that Hudgins is unpublished and thus
nonprecedential, the issue of the adequacy of the APIP offer in this case has already
been resolved by the Tenth Circuit, and that the facts in Hudgins are distinguishable.
Defendant essentially asks the Court to certify a question which the Tenth Circuit
has already answered. The Tenth Circuit’s remand order specifically stated that it
agreed with the Court’s earlier order finding that, “although it may be true that an
insurer’s silence in referencing the persons covered by APIP does not permit an
inference of exclusion, it is certainly true that when an insurer lists some persons
covered by APIP coverage, those not included on the list are considered excluded.”
Warren v. Liberty Mut. Fire Ins. Co., 555 F.3d 1141, 1146 (10th Cir. 2009) (quoting
Warren v. Liberty Mut. Fire Ins. Co., 505 F. Supp. 2d 770, 779 (D. Colo. 2007)). This
holding directly answers the question defendant seeks to certify.
“[W]hen a case is appealed and remanded, the decision of the appellate court
establishes the law of the case and ordinarily will be followed by [] the trial court on
remand.” McIlravy v. Kerr-McGee Coal Corp., 204 F.3d 1031, 1034 (10th Cir. 2000)
(quoting Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1183 (10th Cir. 1995)). The Tenth
Circuit has carved out a handful of “exceptionally narrow” exceptions to the law of the
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case doctrine. Id. at 1035 (quoting United States v. Alvarez, 142 F.3d 1243, 1247 (10th
Cir. 1998)). The only exception potentially applicable here allows deviation from the law
of the case “when controlling authority has subsequently made a contrary decision of
the law applicable to such issues.” Id. But no controlling authority has subsequently
made a contrary decision here. Hudgins is not controlling, as it is both unpublished and
from an intermediate state court. See Sellers v. Allstate Ins. Co., 82 F.3d 350, 352
(10th Cir. 1996) (decisions of intermediate state courts are only persuasive). Nor is
Jewett v. Am. Std. Ins. Co., 178 P.3d 1235, 1238 (Colo. App. 2007), as it is also a
Colorado court of appeals opinion and it was decided before the Tenth Circuit’s opinion
in this case. Therefore, in the absence of subsequent controlling authority compelling it
to hold otherwise, the Court finds that the issue raised by defendant’s first proposed
question has already been determined by the Tenth Circuit and need not be revisited by
certification of a question to the Colorado Supreme Court.
B. Second Question
Defendant also seeks certification of the following question: “Do the special
penalties in former Colo. Rev. Stat. § 10-4-708 (2002) apply to a claim for APIP
benefits?” Docket No. 154 at 1. In its motion, defendant argues that it is an open
question whether the special statutory penalties set forth in Colo. Rev. Stat. § 10-4-708
apply to a claim for APIP benefits and that the Colorado Supreme Court should resolve
the issue. After defendant filed its motion to certify, the Court issued an order holding
that plaintiff’s claims for statutory penalties pursuant to Colo. Rev. Stat. § 10-4-708 did
not survive Kirk Warren’s death. See Docket No. 217. Accordingly, there is no need to

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certify a question to the Colorado Supreme Court on this issue and the Court will deny
defendant’s motion to certify.
IV. PLAINTIFF’S MOTION TO CERTIFY
Plaintiff seeks to certify the following question to the Colorado Supreme Court:
“Whether a claim for statutory penalties and exemplary damages is extinguished when
the Plaintiff dies, where the survival statute, Colorado Revised Statute § 13-20-101(1),
states that such damages ‘shall not be awarded after the death of the person against
whom such punitive damages or penalties are claimed?’ (emphasis added).” Docket
No. 218 at 1-2. Plaintiff seeks certification of this question despite the Court’s earlier
holding that there is Colorado Supreme Court authority directly on point. See Docket
No. 217 at 18. Plaintiff argues that the two Colorado Supreme Court cases cited by the
Court, Kruse v. McKenna, 178 P.3d 1198 (Colo. 2008), and People v. Adams, 243 P.3d
256 (Colo. 2010), did not rule on survivability. But this argument misses the fact that
both cases interpreted the survivability statute at issue here. This interpretation was not
dicta; it was central to the holdings in those cases. Rule 21.1 of Colorado’s Rules of
Appellate Procedure only allows certification of a question where “there is no controlling
precedent in the decisions of the [Colorado] Supreme Court.” Colo. App. R. 21.1(a).
There is controlling precedent here. Therefore, the Court will deny plaintiff’s motion to
certify.
V. CONCLUSION
For the foregoing reasons, it is
ORDERED that defendant’s Motion to Certify Questions of State Law to the

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Colorado Supreme Court, and For Stay of Action [Docket No. 154] is DENIED. It is
further
ORDERED that plaintiff’s Motion to Certify Question of State Law [Docket No.
218] is DENIED.

DATED June 29, 2011.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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