Denver Health and Hospital Authority v. Beverage Distributors Company, LLC et al
MEMORANDUM OPINION AND ORDER. Principal's Motion to Dismiss 5 is Denied in so far as it seeks dismissal of the promissory estoppel claim and is DENIED as moot in so far as it seeks dismissal of the § 1132(a)(1)(B) claim and the Colo. R ev. Stat. §§ 10-3-1115 and 10-3-1116 claim. DHHA's Motion for Leave to Amend Complaint 31 is GRANTED, and its second amended complaint tendered therewith is accepted. Beverage Distributors' Motion for Judgement on the Pleading s 34 is GRANTED. These orders leave the case to proceed with two claims and two defendants: (1) the negligent misrepresentation claim against Beverage, and (2) the promissory estoppel claim against Principal by Judge Lewis T. Babcock on 02/08/12.(jjhsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LEWIS T. BABCOCK, JUDGE
Civil Case No. 11-cv-01407-LTB-KLM
DENVER HEALTH AND HOSPITAL AUTHORITY,
BEVERAGE DISTRIBUTORS COMPANY, LLC, a Colorado limited liability company;
A PLAN DESIGNED TO PROVIDE SECURITY FOR EMPLOYEES OF BEVERAGE
DISTRIBUTORS COMPANY, LLC; and
PRINCIPAL LIFE INSURANCE COMPANY,
MEMORANDUM OPINION AND ORDER
This matter is before me on three motions. The first is Defendant Principal Life Insurance
Company’s (“Principal”), Motion to Dismiss Plaintiff’s complaint pursuant to Fed. R. Civ. P.
12(b)(6) [Docs # 5 and 6]. The second is Plaintiff Denver Health and Hospital Authority’s
(“DHHA”), Motion for Leave to Amend Complaint pursuant to Fed. R. Civ. P. 15(a)(2) [Doc # 31].
The third is the Motion for Judgement on the Pleadings [Doc # 34], filed jointly by Beverage
Distributors Company, LLC (“Beverage”), and A Plan Designed to Provide Security for Employees
of Beverage Distributors Company, LLC (the “Plan”) (jointly, “Beverage Distributors”). After
consideration of the parties’ arguments, and for the reasons stated herein, I DENY Principal’s
motion in accordance with the instructions below; I GRANT DHHA’s motion and accept its second
amended complaint tendered therewith; and I GRANT Beverage Distributors’ motion. These orders
leave the case to proceed with two claims and two defendants: (1) the negligent misrepresentation
claim against Beverage, and (2) the promissory estoppel claim against Principal.
DHHA alleges the following in its first amended complaint. DHHA is a political subdivision
of the State of Colorado. It operates the City and County of Denver’s health system, including
Denver Health Medical Center (“Denver Health”).
Beverage is a Colorado limited liability company. Beverage provides medical and other
benefits to its full time, active duty employees and their dependents through the Plan.
The Plan is an employee welfare benefit plan pursuant to, and for the purposes of, the
Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (“ERISA”). Beverage
is the Plan’s Administrator. The Plan does not identify who or what is the claims administrator, but
it defines the term as “an entity authorized by the Plan Administrator to process claims for benefits
under this plan.”
Principal is a company authorized to conduct business in Colorado and was so conducting
at all times pertinent to this lawsuit. One of its functions is to process claims under the Plan
according to the Plan’s provisions.
Junnapa Intarakamhang was a full time, active duty Beverage employee. As such, she was
a member under the Plan. She had established a domestic partnership with Terrence Hood in 2006.
Together, they submitted an application for domestic partner coverage for Hood under the Plan on
June 25, 2008.
On March 21, 2009, while Intarakamhang was a Plan member, Hood sustained severe and
traumatic injuries in a motorcycle crash. Paramedics rushed Hood to Denver Health where he would
receive lifesaving medical care and treatment for months. On March 24, 2009, Denver Health
solicited and received hospital preadmission authorization from Principal for Hood’s hospital stay.
Over the next several weeks, Principal repeatedly preauthorized additional days for Hood’s stay.
These authorizations led Denver Health to continue caring for Hood and to decline seeking a
different third party payor. Hood was discharged on June 10, 2009.
By letter dated May 14, 2009, Beverage advised Intarakamhang that coverage for Hood
under the Plan had been rescinded because Hood “did not qualify for benefits . . . due to his marital
status currently and at the time he certified the declaration of domestic partnership form[.]” The
information in Beverage’s files did not support rescission. Beverage never provided notice to Hood
himself that it had rescinded his coverage under the Plan. Nor did it return any premiums Hood paid
for coverage. The Plan does not provide for rescission of a member or covered dependent’s
coverage in the event of a misstatement in an application or under any other circumstances.
Principal later advised Denver Health by letter that benefits were not payable for Hood’s
care because he was not a covered dependent under the Plan and that there was a “plan termination
date of 06/20/2008.” Principal did not notify Hood directly of its determination that benefits were
not payable for the charges incurred at Denver Health.
Hood incurred approximately $750,000 in medical bills for his treatment at Denver Health.
He assigned his right to recover benefits under the Plan to Denver Health and thereby assigned them
to DHHA. DHHA alleges that the attempted rescission and refusal to pay covered benefits under
the Plan were not substantially justified, were arbitrary and capricious, were unsupported by
substantial evidence, constituted abuse of any allowed discretion, and were wrongful.
DHHA filed suit in state court on April 4, 2011. On April 21, 2011, it filed its first amended
complaint. The first amended complaint asserted three causes of action. First was a claim for
benefits due and equitable relief under § 502(a)(1) of ERISA, 29 U.S.C. § 1132(a)(1)(B) (the “§
1132(a)(1)(B) claim”). Second was that Principal unreasonably delayed and denied payment of
Hood’s claim in violation of Colo. Rev. Stat. §§ 10-3-1115 and 10-3-1116(a). Third was promissory
estoppel against Principal. Defendants removed the case to this Court on ERISA and federal
question grounds pursuant to § 502(e) of ERISA, 29 U.S.C. § 1132(e), and 28 U.S.C. § 1331,
After removal, Principal filed its motion to dismiss. DHHA then filed its motion for leave
to amend its first amended complaint. Next came Beverage Distributors’ motion for judgment on
the pleadings. In the interest of clarity, brevity, deciding only those issues that I must, and for the
reasons explained below, I address the motions out of the order in which they were filed. I begin
with DHHA’s motion, then turn to Principal’s, and end with Beverage Distributors’. As will be
elucidated, this order of operations obviates much of Principal’s motion but does not prejudice it.
II. DHHA’s Motion
DHHA’s motion seeks leave to file a second amended complaint pursuant to Rule 15(a)(2).
DHHA tendered that second amended complaint with its motion. Its second amended complaint
asserts a negligent misrepresentation claim against Beverage and clarifies that the § 1132(a)(1)(B)
claim is asserted against only the Plan and not Principal. I note that the second amended complaint
also excludes the Colo. Rev. Stat. §§ 10-3-1115 and 10-3-1116(a) claim. I infer from that material
change that DHHA is withdrawing that claim. To be clear, then, the second amended complaint
asserts three claims: first, a § 1132(a)(1)(B) claim against the Plan; second, a negligent
misrepresentation claim against Beverage; and third, a promissory estoppel claim against Principal.
For the reasons herein, I grant DHHA’s motion and accept its second amended complaint.
A. Rule 15(a)(2)
Rule 15 governs amendments to pleadings generally. See Fed. R. Civ. P. 15. “Except when
an amendment is pleaded ‘as a matter of course,’ as defined by the rule, ‘a party may amend its
pleading only with the opposing party’s written consent or the court’s leave.’ ” Bylin v. Billings,
568 F.3d 1224, 1229 (10th Cir. 2009). Courts “should freely grant leave when justice so requires.”
Id. The rule’s purpose “is to provide litigants the maximum opportunity for each claim to be
decided on its merits rather than on procedural niceties.” Minter v. Prime Equip., 451 F.3d 1196,
1204 (10th Cir. 2006) (internal quotations omitted). Therefore, “[r]efusing leave to amend is
generally only justified upon a showing of undue delay, undue prejudice to the opposing party, bad
faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility
of amendment.” Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993); accord Foman v.
Davis, 371 U.S. 178, 182 (1962). Granting leave to amend the pleadings pursuant to Rule 15(a) is
within the court’s wide discretion. See Minter, 451 F.3d at 1204 (citing Zenith Radio Corp. v.
Hazeltine Research, Inc., 401 U.S. 321, 330 (1971)); see also Calderon v. Kan. Dep’t of Soc. &
Rehab. Servs., 181 F.3d 1180, 1187 (10th Cir. 1999). Consequently, the trial court’s decision will
not be reversed “absent an abuse of discretion,” which is when the decision was “arbitrary,
capricious, whimsical, or manifestly unreasonable.” Bylin, 568 F.3d at 1229.
To begin, consonant with Rule 15(a)(2)’s language and purpose, my predilection is to grant
DHHA’s motion. See Fed. R. Civ. P. 15(a)(2); see also Minter, 451 F.3d at 1204. That affords “the
maximum opportunity for each claim to be decided on its merits rather than on procedural
niceties”–the rule’s purpose. Minter, 451 F.3d at 1204. Beverage’s only challenge to DHHA’s
motion is that the negligent misrepresentation claim DHHA seeks to add would be futile. For this
reason, and because none of the other factors for refusing leave are “apparent or declared,” see
Foman, 371 U.S. at 182, I confine my analysis to whether the negligent misrepresentation claim
would be futile. I conclude that it would not.
“A proposed amendment is futile if the complaint, as amended, would be subject to dismissal
for any reason . . . .” Watson v. Beckel, 242 F.3d 1237, 1239-40 (10th Cir. 2001). Beverage argues
that the amendment would be futile because it could not withstand a motion to dismiss under Fed.
R. Civ. P. 12(b)(6).
To survive such a motion, a complaint “must contain sufficient factual matter, accepted as
true, ‘to state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955 (2007)). “A
claim has facial plausibility 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
Twombly, 550 U.S. at 556). “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id. Rather, the “[f]actual allegations must be enough
to raise a right to relief above the speculative level.” Twombley, 550 U.S. at 555. When deciding
a motion to dismiss under Rule 12(b)(6), a court must assume the truth of all well-pleaded facts in
the complaint and draw all reasonable inferences therefrom in the light most favorable to the
plaintiff. Teigen v. Renfrow, 511 F.3d 1072, 1078 (10th Cir. 2007). Legal conclusions, however,
do not receive this treatment. Iqbal, 129 S.Ct. at 1949.
In evaluating a Rule 12(b)(6) motion, I may consider “not only the complaint itself, but also
attached exhibits and documents incorporated into the complaint by reference.” Smith v. U.S., 561
F.3d 1090, 1098 (10th Cir. 2009) (internal citations omitted). “The district court may 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.” Id. (quoting Alvarado v. KOB-TV, L.L.C., 493
F.3d 1210, 1215 (10th Cir. 2007)). Here, the Plan is such a document.
Beverage marshals five arguments for why the amendment could not withstand a motion to
dismiss. Three home in on the elements of a negligent misrepresentation claim. One asserts that
ERISA preempts the claim. The last contends that Rule 9(b)’s heightened pleading standard applies
in lieu of Rule (8)(a). This last argument is where I begin.
1. Fed. R. Civ. P. 8(a) or 9(b)
Beverage contends that Rule 9(b), not Rule 8(a), applies to the negligent misrepresentation
claim and that the claim cannot meet Rule 9(b). Rule 8(a) prescribes the pleading requirements for
most claims. It requires a pleading to contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). By contrast, Rule 9(b) requires that “a party
must state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b)
(emphases added). This standard requires the complaint to “set forth the time, place and contents
of the false representation, the identity of the party making the false statements and the
consequences thereof.” Schwartz v. Celestial Seasonings, Inc., 124 F.3d 1246, 1252 (10th Cir.
1997) (citation omitted). The rule’s purpose is “to afford defendant fair notice of plaintiff's claims
and the factual ground upon which [they] are based . . .” Id. (quoting Farlow v. Peat, Marwick,
Mitchell & Co., 956 F.2d 982, 987 (10th Cir. 1992)).
As the parties note, whether Rule 9(b) applies to negligent misrepresentation claims divides
the circuit courts of appeals. Compare, e.g., Trooien v. Mansour, 608 F.3d 1020, 1028 (8th Cir.
2010) (concluding that Rule 9(b) applies to the claim), and Aetna Cas. & Sur. Co. v. Aniero
Concrete Co., 404 F.3d 566, 583 (2d Cir. 2005) (same); with Tricontinental Indus., Ltd. v.
PricewaterhouseCoopers, LLP, 475 F.3d 824, 833 (7th Cir. 2007) (holding Rule 9(b) does not apply
to claim), and Baltimore Cnty. v. Cigna Healthcare, 238 Fed. App’x 914, 921-22 (4th Cir. 2007)
(same). The issue similarly splits this district court. Compare Gunningham v. Std. Fire. Ins. Co.,
No. 07-cv-02538-REB-KLM, 2008 WL 4377451, at *2 (D. Colo. Sept. 18, 2008) (applying Rule
9(b) to claim), with Conrad v. Educ. Res. Inst., 652 F. Supp. 2d 1172, 1182-83 (D. Colo. 2009)
(concluding Rule 9(b) does not apply to claim). The Tenth Circuit has not decided the issue.
I conclude that Rule 9(b) does not apply to the negligent misrepresentation claim before me.
The crux of the claim is that Beverage failed to use reasonable care or competence in obtaining and
communicating information concerning Hood’s eligibility. This rings not of fraud but negligence.
See, e.g., Bloskas v. Murray, 646 P.2d 907, 914 (Colo. 1982). The claim should thus be governed
by Rule 8(a). See Conrad, 652 F. Supp. 2d at 1183; see also City of Raton v. Ark. River Power.
Auth., 600 F. Supp. 2d 1130, 1143 (D.N.M. 2008) (“With respect to rule 9(b)’s scope, a court should
require parties to plead a cause of action with particularity when that cause of action contains
allegations grounded in fraud. . . . On the other hand, claims based on negligent or innocent
misrepresentation, to the extent those claims do not require proof of fraud, may be pled in
accordance with the more relaxed standards of rule 8(a).”) (citing 2 James Wm. Moore, Jeffrey A.
Parness, & Jerry Smith, Moore's Federal Practice § 9.03(1)(d), at 9–21 (3d ed. 2008)); Vess v. Ciba-
Geigy Corp. USA, 317 F.3d 1097, 1104-05 (9th Cir. 2003) (“Allegations of non-fraudulent conduct
need satisfy only the ordinary notice pleading standards of Rule 8(a)”).
Moreover, the general tenor of the complaint weighs against applying Rule 9(b). This is
because none of the causes of action or allegations implicate fraud. See, e.g., Gunningham, 2008
WL 4377451, at *2 (where the court held that Rule 9(b) applies to negligent misrepresentation
claim, the plaintiff alleged in support of that claim “that the defendants concealed and failed to
disclose certain facts relevant to the plaintiff's claims for loss of rental income and loss of
property”), and Benchmark Electronics Capital Corp. v. J.M. Huber Corp., 343 F.3d 719, 723 (5th
Cir. 2003) (stating that “[a]lthough Rule 9(b) by its terms does not apply to negligent
misrepresentation claims,” it will apply the rule to when the negligent misrepresentation claim is
based on the same set of facts as a fraud claim). For these reasons, I conclude that Rule 9(a) does
not apply to this particular negligent misrepresentation claim.
Beverage states that it “cannot be held liable for statements it did not make.” It asserts that
at “no point [in the second amended complaint] does DHHA allege that Beverage  made any
statements directly to DHHA” and, further, that the second amended complaint does not “provide
any factual allegations regarding exactly what was said by whoever said it.” In so doing, it contends
that DHHA insufficiently alleges the second element of a negligent misrepresentation claim. That
claim under Colorado law requires sufficiently alleging the following:
(1) one in the course of his or her business, profession or employment; (2) makes a
misrepresentation of a material fact, without reasonable care; (3) for the guidance of
others in their business transactions; (4) with knowledge that his or her
representations will be relied upon by the injured party; and (5) the injured party
justifiably relied on the misrepresentation to his or her detriment.
Allen v. Steele, 252 P.3d 476, 482 (Colo. 2011) (citing Mehaffy, Rider, Windholz & Wilson v. Cent.
Bank of Denver, N.A., 892 P.2d 230, 236-38 (Colo. 1995)).
Negligent misrepresentation does not require privity between the parties; Beverage may be
liable even if it did not give the information directly to DHHA. See Mehaffy, 892 P.2d at 236.
Additionally, the allegations in the second amended complaint concerning the misrepresentation
meet Rule 12(b)(6)’s scrutiny. Paragraph 11 avers that DHHA solicited and received hospital
preadmission authorization from Principal for Hood’s stay on March 24, 2009, and that Principal
repeatedly preauthorized additional days for Hood’s stay thereafter. The second amended complaint
further alleges that Beverage represented to Principal that Hood was a participant in the Plan and
was eligible for coverage thereunder. The Plan supports this allegation. It clearly explains that
Beverage, as the Plan’s Administrator, “has complete discretion . . . to determine eligibility for
benefits, and to determine the type and extent of benefits, if any, to be provided.” Doc #25 at 003.
Principal processed claims. Id.; 2d Am. Compl. ¶ 8. Principal later told DHHA that Hood was not
These allegations, when read with the rest of the complaint, elevate the claim “above the
See Twombley, 550 U.S. at 555.
First, there are enough factual
allegations–which must be taken as true–to support the reasonable inference that Beverage itself
represented that Hood was covered. And again, that representation did not have to be conveyed
directly to DHHA. See Mehaffy, 892 P.2d at 236. Alternatively, the Plan itself and other facts
alleged generate the reasonable inference that Principal was Beverage’s agent and was acting in that
role when it represented to DHHA that Hood’s care was covered. This would also sufficiently state
the claim against Beverage as principal. See, e.g., Life Investors Inc. Co. of America v. Smith, 833
P.2d 864, 868 (Colo. App. 1992) (“The acts or statements of an agent performed within the scope
of his real or apparent authority are binding upon the principal, regardless of whether the principal
has actual knowledge of the agent's act.”).
Beverage’s assertion that the complaint must contain detailed allegations of who, what, and
when asks for more than 12(b)(6) and Rule 8(a) require. Rule 8 “does not require ‘detailed factual
allegations.’ ” Iqbal, 129 S.Ct. at 1949. DHHA tenders the requisite “further factual enhancement”
to withstand a Rule 12(b)(6) motion. See id.
3. Justifiable, Detrimental Reliance
Beverage next argues that the second amended complaint fails to sufficiently plead that
DHHA justifiably relied on the misrepresentation that Hood was indeed covered under the Plan.
Furthermore, Beverage contends that DHHA’s own mission statement “makes clear that [DHHA]
did not rely on any alleged misrepresentation.”
The second amended complaint sufficiently pleads that DHHA justifiably and detrimentally
relied on the representation concerning Hood’s coverage. Again, DHHA avers in the second
amended complaint that Denver Health solicited and received hospital preadmission authorization
from Principal for Hood’s stay–that is, it was told that Hood was covered–on March 24, 2009, and
that Principal repeatedly preauthorized additional days for Hood’s stay in the weeks thereafter. 2d
Am. Compl. ¶ 11. DHHA further alleges that these representations induced Denver Health to
continue providing Hood medical care. Furthermore, because of those representation, DHHA did
not seek an alternative third party payor for Hood’s care. These are facts I must assume to be true.
The reasonable inference therefrom is that DHHA was left responsible for the $750,000
expense–unequivocally a detriment. These allegations are more than mere “labels and conclusions”
or “a formulaic recitation of the elements.” See Iqbal, 129 S.Ct. at 1949. They instead allow me to
draw the reasonable inference that DHHA indeed detrimentally relied on the representations that
Hood was covered. See id. (quoting Twombly, 550 U.S. at 556).
Beverage’s Exhibit A purports to be a print of out a webpage from of DHHA’s website. This
webpage states that DHHA’s mission is, in part, to “[p]rovide the highest quality health care . . .
regardless of ability to pay.” See Beverage’s Resp. Ex. A. According to Beverage, this mission
statement demonstrates that Denver Health would have treated Hood regardless of coverage, so there
was no reliance. Assuming, arguendo, that I may consider the exhibit, it does not establish that
DHHA did not detrimentally rely on the representations that Hood was covered. Beverage assumes
that DHHA’s conduct actually comports with that mission. This has not been shown. Moreover, as
DHHA explains, “[c]hanging a patient’s medical care in duration, scope, or location is not the only
way in which Beverage’s misrepresentations could have affected DHHA’s course of action with
respect to Mr. Hood.” Indeed, DHHA alleges that because it was told that Hood was covered under
the Plan, it did not seek an alternative third party payor for Hood’s care. Now it is left holding the
$750,000 bill for that care.
4. Reasonable Care
Beverage circles back to the second element by contending that it had no duty as an
employer or as the Plan’s Administrator to exercise reasonable care or competence in obtaining
information regarding Plan eligibility.
This argument obfuscates the issue before me. The question is whether DHHA’s second
amended complaint states a claim for negligent misrepresentation that could withstand a Rule
12(b)(6) motion. To do that, DHHA must plausibly allege that Beverage, in the course of its
business, made a misrepresentation of a material fact, without reasonable care or competence in
obtaining or communicating the information. Mehaffy, 892 P.2d at 236. DHHA does that. The
second amended complaint avers that Hood and Intarakamhang submitted an application for
domestic partner coverage for Hood under the Plan and that the application was approved and Hood
was enrolled. It also states that Beverage did not require Hood or Intarakamhang to produce any
documentation, sign any releases to obtain records, or otherwise conduct any underwriting
procedures concerning Hood’s eligibility. It was later represented to DHHA on multiple occasions
that Hood was covered, but, ultimately, that he was uncovered. Assuming these facts to be true, as
I must, they buoy the assertion that Beverage (or Principal acting as its agent) failed to exercise
reasonable care or competence in obtaining or communicating Hood’s coverage “above the
speculative level.” Twombley, 550 U.S. at 555. This is all that is required at this stage.
Beverage’s policy arguments on this point are also unpersuasive. It argues that a holding that
a plan administrator has the duty to investigate and verify whether an applicant meets every
coverage requirement “is an impossible situation that would add incredible administrative costs to
health care administration.” I need not address this argument because I make no such holding, nor
do I demarcate the contours of reasonable care in a negligent misrepresentation case in this context.
Beverage lastly argues that ERISA preempts the negligent misrepresentation claim.
ERISA’s preemption clause states that “[e]xcept as provided in subsection (b) of this section, the
provisions of this subchapter and subchapter III of this chapter shall supercede any and all State laws
insofar as they may now or hereafter relate to any employee benefit plan . . . .” 29 U.S.C. § 1144(a).
Section 1144(b)(2)(A), however, states that “nothing in this subchapter shall be construed to exempt
or relieve any person from any law of any State which regulates insurance, banking, or securities.”
This provision is known as ERISA’s savings clause. Notwithstanding the savings clause, the
preemption clause is “deliberately expansive” and has a “broad sweep.” Pilot Life Ins. Co. v.
Dedeaux, 481 U.S. 41, 46, 47 (1987). “The phrase ‘relate to’ [is] given its broad common-sense
meaning, such that a state law ‘relate[s] to’ a benefit plan ‘in the normal sense of the phrase, if it has
a connection with or reference to such a plan.’ ” Pilot, 481 U.S. at 47 (quoting Metro. Life Ins. Co.
v. Massachusetts, 471 U.S. 724, 739 (1985)). The Supreme Court has emphasized that preemption
is not limited to state laws specifically designed to affect employee benefit plans. Shaw v. Delta Air
Lines, 463 U.S. 85, 98 (1983). Instead, it also encompasses common law tort and contract claims.
Pilot, 481 U.S. at 47-48. In sum, if a state law claim “relates to” an employee benefits plan, it is
preempted, but if the law “regulates insurance,” the savings clause saves it from preemption. Id. at
Clearly Hood could not bring the claim. See Straub v. Western. Union. Telegraph Co., 851
F.2d 1262, 1263-64 (10th Cir. 1988) (holding that ERISA preempts state law claims for breach of
contract and negligent misrepresentation claim brought by an ERISA-plan participant or
beneficiary); see also Pilot, supra. But DHHA brings the claim on its own behalf as a third party
health services provider. This makes the preemption question more difficult. The Tenth Circuit has
not addressed the specific issue of whether ERISA preempts a negligent misrepresentation claim
brought by a third party health services provider. I therefore look for guidance elsewhere.
Memorial Hospital Systems v. Northbrook Life Insurance Co., 904 F.2d 236 (5th Cir. 1990),
presented facts very similar to those before me. There, Noffs, Inc. (“Noff”), provided health care
benefits for its employees and their dependents through a group health insurance policy purchased
from and administered by defendant Northbrook Life Insurance Company (“Northbrook”). Id.
Gloria Echols, the wife of a Noff employee, sought care at Memorial Hospital. Id. at 238. The
hospital called Noff to verify Echols’s coverage, and Noff confirmed that she was covered. Id. The
hospital then admitted Echols and treated her for two months at a cost of more than $100,000. Id.
When the hospital submitted its bill, Northbrook informed it that Echols was ineligibile and denied
the claim. Id. The hospital sued the employer and Northbrook, alleging among other claims a
violation of Texas Insurance Code article 21.21, which the court characterized as a Texas
codification of negligent misrepresentation. See id.
The Memorial court held that ERISA did not preempt the negligent misrepresentation claim.
It found that the claim was not one which Congress intended ERISA to regulate:
If a patient is not covered under an insurance policy, despite the insurance company's
assurances to the contrary, a provider's subsequent civil recovery against the insurer
in no way expands the rights of the patient to receive benefits under the terms of the
health care plan. If the patient is not covered under the plan, he or she is individually
obligated to pay for the medical services received. The only question is whether the
risk of non-payment should remain with the provider or be shifted to the insurance
company, which through its agents misrepresented to the provider the patient's
coverage under the plan. A provider's state law action under these circumstances
would not arise due to the patient's coverage under an ERISA plan, but precisely
because there is no ERISA plan coverage.
Id. at 246 (emphasis added). The Memorial court also concluded that preemption does not comport
with Congress’s purpose for ERISA. Id. at 245. Congress enacted ERISA to protect the interests of
employees and beneficiaries covered by a benefit plan. Firestone Tire & Rubber Co. v. Bruch, 489
U.S. 101, 113 (1989). The court reasoned that preemption in a third party health care provider case
would defeat rather than promote this goal. Memorial, 904 F.2d at 247. The “commercial realities”
of the health care industry require that health care providers be able to rely on insurers’
representations as to coverage. Id. at 246. But “[i]f providers have no recourse under either ERISA
or state law in situations” where a provider has relied on assurances that there is coverage, and that
coverage is later disclaimed, “providers will be understandably reluctant to accept the risk of nonpayment, and may require up-front payment by beneficiaries-or impose other inconveniences-before
treatment will be offered.” Id. at 247. “This,” Memorial explained, “does not serve, but rather
directly defeats, the purpose of Congress in enacting ERISA.” Id. at 247-48. The court also
reasoned that health care providers were beyond ERISA’s scope. See id. at 248-49.
The facts in Memorial, supra, were “very similar” to those presented in Lordmann
Enterprises, Inc. v. Equicor, Inc., 32 F.3d 1529, 1533 (11th Cir. 1994). In Lordmann, the Eleventh
Circuit reviewed Memorial, found it persuasive, and likewise held that ERISA does not preempt a
health care provider’s negligent misrepresentation claim against an insurer.
While the Tenth Circuit has not addressed this particular situation, it has confronted an
analogous one. In Hospice of Metro Denver, Inc. v. Group Health Insurance, Inc., 944 F.2d 752,
753 (10th Cir. 1991), an infant was admitted to hospice for care and remainined there for
approximately four months. The infant’s father’s employer provided group health care benefits from
Blue Cross for its employees. Id. Prior to admitting the infant, hospice contacted Blue Cross about
insurance coverage, and Blue Cross informed hospice that coverage was available. Id. Blue Cross
repeatedly assured hospice during the infant’s stay that the care was covered and that payment would
be forwarded. Id. After the infant was discharged, Blue Cross denied coverage and payment, citing
the health care policy’s preexisting conditions provisions. Id. Hospice sued in its own right,
alleging, inter alia, promissory estoppel. Id. Blue Cross challenged the claim as preempted by
The Tenth Circuit held that ERISA did not preempt a health care provider’s promissory
estoppel claim asserted on its own behalf. The court began by tracing the expansive contours of
ERISA-preemption. But it also stated that “ERISA does not preempt claims that are only
tangentially involved with a benefit plan.” Id. at 754 (quoting Settles v. Golden Rules Ins. Co., 927
F.2d 505, 509 (10th Cir. 1991)). Similarly, it explained that “state actions which affect plans in ‘too
tenuous, remote, or peripheral a manner,’ will not be preempted as a law relating to the plan.” Id.
(quoting Shaw, 463 U.S. at 100 n.21). Importantly for the instant matter, the court relied heavily
on Memorial’s approach and rationale to reach its conclusion. Id. at 754-55. It agreed that under
these circumstances, a provider’s subsequent civil remedy against the insurer in no way expands the
rights of the patient to receive benefits under the terms of the health care plan. Id. And the
promissory estoppel claim, like the claim in Memorial, arose not from coverage under an ERISA
plan, but rather, precisely because there is no ERISA plan coverage. Id. The court was also
concerned with leaving hospice without recourse. Id. at 755. Furthermore, the court agreed with
Memorial that “[d]enying a third-party provider a state law action based upon misrepresentation by
the plan’s insurer in no way furthers the purposes of ERISA.” Id. at 756. For these reasons, the
Tenth Circuit found that preempting the claim would “stretch the ‘connected with or related to’
standard too far.” Id.
These three cases are cognate to the one before me. Finding their approach and conclusions
applicable and persuasive, and for the reasons they discussed, I conclude that ERISA would not
preempt DHHA’s negligent misrepresentation claim.
For the foregoing reasons, I conclude that the amendments that DHHA’s motion seeks would
not be futile. I therefore grant DHHA’s motion and accept its second amended complaint.
III. Principal’s Motion
Principal’s motion asks that I dismiss with prejudice the three claims in DHHA’s first
amended complaint. Those three claims were the § 1132(a)(1)(B) claim; the Colo. Rev. Stat. §§
10-3-1115 and 10-3-1116 claim; and the promissory estoppel claim. Because I granted DHHA’s
motion and accepted its second amended complaint in Part II, supra, Principal’s arguments against
the first two claims are moot. This is because the second amended complaint clarifies that DHHA
levies the § 1132(a)(1)(B) claim against the Plan and not Principal. The second amended complaint
also dropped the Colo. Rev. Stat. §§ 10-3-1115 and 10-3-1116 claim. I therefore decline to discuss
and deny as moot the portions of Principal’s motion pertinent to those two claims.
But Principal’s arguments for dismissing the promissory estoppel claim remain. The accepted
second amended complaint does not add any new allegations pertaining to that claim. Hence, I
examine the exact same promissory estoppel claim in response to Principal’s motion; I just look at
the second amended complaint to do so. For the reasons herein, I deny the motion.
A. Standard of Review
Here, I incorporate by reference the Rule 12(b)(6) standard of review I explicated in Part
II.B, supra. The core principle is that to withstand a motion to dismiss under Rule12(b)(6), a
complaint “must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that
is plausible on its face.’ ” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570). This
standard is met 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 Twombly,
550 U.S. at 556).
Principal levies what appears to be three arguments for why DHHA does not state the claim.
I address these in turn and conclude that DHHA satisfactorily alleges a promissory estoppel claim.
Principal argues in its motion that regardless of whether DHHA brings the promissory
estoppel as Hood’s assignee or in its own right, ERISA preempts it. I delineated the schema for
ERISA-preemption in Part II.B.5, supra. I incorporate it by reference here.
A promissory estoppel claim brought by a plan participant or beneficiary that “relates to” a
benefit plan is indeed preempted by ERISA. See Peckham v. Gem State Mut. of Utah, 964 F.2d
1043 (10th Cir. 1992); Averhart v. US West Mgmt. Pension Plan, 46 F.3d 1480 (10th Cir. 1994);
Maez v. Mountain States Tel. and Tel., Inc., 54 F.3d 1488 (10th Cir. 1995). A different rule exists,
however, when a third party provider brings a promissory estoppel claim on its own behalf.
Hospice, supra, held that ERISA did not preempt a promissory estoppel claim that a health care
provider brought on its own behalf. 944 F.2d 752; see Part II.B.5, supra.
DHHA asserts the promissory estoppel claim on its own behalf– not as Hood’s assignee. The
cases Principal cites in support of preemption are thus inapposite. DHHA alleges that Principal, by
it words and actions, made a promise to pay for the cost of Hood’s care at Denver Health. In support
of this statement, DHHA alleges that it solicited and received hospital preadmission authorization
from Principal for Hood’s hospital stay on March 24, 2009 and that over the next several weeks,
Principal continued to preauthorize additional days for Hood’s stay on multiple occasions. These
promises induced Denver Health to continue providing Hood with care. They also kept Denver
Health from making other arrangements for Medicare or another third party to pay for Hood’s care.
DHHA now seeks recovery from the Principal as promisor.
Hospice’s facts are patently akin to those before me. See Part II.B.5, supra (discussing facts
of Hospice). Following Hospice, I conclude that ERISA does not preempt DHHA’s promissory
estoppel claim. Principal does not proffer any authority for why DHHA is precluded from bringing
claims as Hunt’s assignee in conjunction with claims in its own right.
2. Enforceability Against Principal
Principal next asserts that the claim should be dismissed because only the Plan is liable for
the benefits alleged and any promises Principal allegedly made were made as the Plan’s agent.
The elements of a promissory estoppel claim are the following: (1) the promisor made a
promise to the promisee; (2) the promisor should reasonably have expected that the promise would
induce action or forbearance by the promise; (3) the promisee in fact reasonably relied on the
promise to the promisee's detriment; and (4) the promise must be enforced to prevent injustice.
Nelson v. Elway, 908 P.2d 102, 110 (Colo. 1995). “Promissory estoppel is an extension of the basic
contract principle that one who makes a promise must be required to keep it.” Marquardt v. Perry,
200 P.3d 1126, 1129 (Colo. App. 2008).
Taking as true the factual allegations in the second amended complaint, and drawing all
reasonable inferences therefrom in a light most favorable to DHHA, the complaint satisfactorily
alleges these elements. It alleges the “[t]hreadbare recitals of the elements of” promissory estoppel.
See Iqbal, 129 S.Ct. at1949; see 2d Am. Compl. ¶¶ 33-37. More importantly, it supports them with
factual averments. The second amended complaint alleges that Denver Health solicited and received
preadmission authorization from Principal for Hood on March 24, 2009, and that Principal
preauthorized additional days for Hood’s stay multiple times over the nest several weeks. See 2d
Am. Compl.¶ 11. As a result of these authorizations, Denver Health continued rendering care to
Hood. Denver Health also did not begin making arrangements for Medicare or a third party to pay
for Hood’s care. Principal then denied coverage and payment. These factual allegations “raise [the]
right to relief above the speculative level.” Twombley, 550 U.S. at 555; see Hospice, 944 F.2d at
753, 754 (stating that, under Colorado law, the following allegations “state[d] a promissory estoppel
claim” against Blue Cross: prior to hospice admitting a patient, Blue Cross told hospice that the
patient was covered; during course of the patient’s care, Blue Cross repeatedly assured hospice that
the patient was covered; but Blue Cross ultimately refused coverage and payment).
Principal does not cite any legal authority in support of the proposition that it is immune
from this claim as an agent, save the Plan. See, e.g., Broderick Inv. Co. v. Strand Nordstrom Stailey
Parker, Inc., 794 P.2d 264 (Colo. App. 1990) (promissory estoppel claim alleged against
independent insurance agent in relation to Aetna Insurance Company insurance policy certificate).
DHHA, however, does not seek to hold Principal liable for breach of the Plan. Rather, DHHA seeks
to hold Principal liable for the promises it allegedly made.
Because DHHA’s allegations raise its promissory estoppel claim “above the speculative
level,” see Twombley, 550 U.S. at 555, and DHHA fails to provide any legal authority that the
standard promissory estoppel elements are inapplicable or deficiently alleged here, this argument
fails to establish that the Third Claim must be dismissed under Rule 12(b)(6).
3. Express Claim to Payment
Lastly, Principal contends that promissory estoppel is not available in situations where an
express claim for payment exists. It argues that because Hood assigned his right to benefits to
DHHA, DHHA can recover benefits under the Plan and need not–and apparently cannot–resort to
a claim for promissory estoppel.
Principal’s argument is devoid of legal support. Plaintiffs may bring claims for breach of
contract and promissory estoppel. See Marquardt, supra. Contrary to Principal’s postulate, DHHA
lacks an express claim for payment. See Part IV, infra. But DHHA may nevertheless be able to
recover on a promissory estoppel claim. See Continental Air Lines, Inc. v. Keenan, 731 P.2d 708,
712 (Colo. 1987). That DHHA brings the § 1132(a)(1)(B) against the Plan does not preclude
bringing a promissory estoppel claim against Principal.
Accordingly, I deny Principal’s motion in so far as it seeks dismissal of the promissory
estoppel claim. And, as previously stated, I deny as moot the portions of the motion seeking
dismissal of the § 1132(a)(1)(B) claim and the Colo. Rev. Stat. §§ 10-3-1115 and 10-3-1116 claim.
IV. Beverage Distributors’ Motion
Beverage Distributors moves pursuant to Rule 12(c) to dismiss DHHA’s § 1132(a)(1)(B)
claim from the first amended complaint. In Part II, supra, I granted DHHA’s motion and accepted
its second amended complaint. The second amended complaint retains the § 1132(a)(1)(B) claim
but clarifies that DHHA asserts it against the Plan. That is the only material change to the claim.
I thus feel comfortable directing Beverage Distributors’ motion at the § 1132(a)(1)(B) claim in the
second amended complaint. For the reasons below, I grant the motion.
A. Standard of Review
A motion for judgment on the pleadings brought pursuant to Fed. R. Civ. P. 12(c) may be
made any time after the pleadings are closed. Fed. R. Civ. P. 12(c). Such a motion “is designed to
dispose of cases where material facts are not in dispute and judgment on the merits can be rendered
based on the content of the pleadings and any facts of which the will take judicial notice.”
Hamilton v. Cunningham, 880 F. Supp. 1407, 1410 (D. Colo. 1995).
I treat a motion for judgment on the pleadings under Rule 12(c) as a motion to dismiss under
Rule 12(b)(6). Mock v. T.G. & Y. Stores Co., 971 F.2d 522, 528 (10th Cir.1992). The standards
delineated in Parts II.B and III.A, supra, are thus applicable; I incorporate them here. Recall that
while utilizing this standard, I “may 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.” Smith, 561 F.3d at 1098 (quoting Alvarado, 493 F.3d at 1215). I may also take
judicial notice of and consider court and other public records without converting the motion into one
for summary judgment under Rule 56. See Grynberg v. Koch Gateway Pipeline Co., 390 F.3d 1276,
1279 n.1 (10th Cir. 2004); see also Van Woudenberg v. Gibson, 211 F.3d 560, 568 (10th Cir. 2000),
abrogated on other grounds by McGregor v. Gibson, 248 F.3d 946, 955 (10th Cir. 2001).
Beverage Distributors’ argues that the § 1132(a)(1)(B) claim should be dismissed on two
grounds. First, Hood never had standing to sue because he was never a “participant or beneficiary;”
therefore, as Hood’s assignee, DHHA lacks standing to bring the claim. Second, Hood failed to
exhaust his administrative remedies. I begin with whether DHHA has standing to bring the §
1132(a)(1)(B) claim and determine that it does not. I thus need not and do not address the second
In order to bring a suit, a plaintiff must show that it has standing to bring its claim or claims.
See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). In a § 1132(a)(1)(B) case, “only
plaintiffs who are properly considered ‘participants’ or ‘beneficiaries’ have standing to sue.”
Chastain v. AT&T, 558 F.3d 1177, 1181 (10th Cir. 2009); accord Hansen v. Harper Excavating,
Inc., 641 F.3d 1216, 1222 (10th Cir. 2011) (“[I]f the party seeking state-court relief is not a
‘participant or beneficiary’ under an ERISA plan, he or she could not have brought suit under §
502(a)(1)(B) of the statute . . . .”); see 29 U.S.C. § 1132(a)(1) (“A civil action may be brought–(1)
by a participant or beneficiary . . . .”). Stated differently, if the plaintiff does not establish that he
was a participant or beneficiary, he does not standing to enforce his ERISA claim. See, e.g.,
Mitchell v. Mobil Oil Corp., 896 F.2d 463, 474 (10th Cir. 1990) (“Because Mr. Mitchell failed to
prove that he was still a participant in the Plan, it is inescapable that he did not have standing to seek
enforcement of his ERISA claims.”). Because standing is also a subject matter jurisdictional
requirement, see Felix v. Lucent Techs., Inc., 387 F.3d 1146, 1160 n.14 (10th Cir. 2004), if the
plaintiff lacks standing, a court lacks jurisdiction. Hansen, 641 F.3d at 1223. Thus, as threshold
matter, DHHA must demonstrate that Hood was either a participant or beneficiary under the Plan.
DHHA does not allege that Hood was a “participant” under the Plan. Nor does it allege facts
that would give rise to that finding. See 29 U.S.C. § 1002(7) (“The term ‘participant’ means any
employee or former employee of an employer, or any member or former member of an employee
organization, who is or may become eligible to receive a benefit of any type from an employee
benefit plan which covers employees of such employer or members of such organization, or whose
beneficiaries may be eligible to receive any such benefit.). It instead alleges that Intarakamhang was
the participant. For standing, then, DHHA must establish that Hood was a beneficiary.
ERISA defines “beneficiary” as “a person designated by a participant, or by the terms of an
employee benefit plan, who is or may become entitled to a benefit thereunder.” 29 U.S.C. §
Thus, to determine whether Hood was a “beneficiary,” I look to the Plan. Beverage
Distributors’ attached the Plan to its motion. See Beverage Distributors’ Mot. Ex. A. (I reiterate
parenthetically that because DHHA references and relies upon the Plan in its second amended
complaint, and it does not dispute the exhibit’s authenticity, I may consider the Plan.) It provides
that medical coverage is available only for “members” and their “dependants.” See id. at 9, 15.
Only Beverage employees can be “members.” Id. at 84. The Plan defines “dependant” as a
member’s “spouse, if [the] spouse: is a person of the opposite sex to whom [the member] [is] legally
married; is not in the Armed Forces of any country; and is not covered under this plan as a
Member.” Id. at 80.
DHHA must demonstrate standing “with the manner and degree of evidence required at the
successive stages of the litigation.” Lujan, 504 U.S. at 561. Because I employ a Rule 12(b)(6)
standard of review, the second amended complaint must contain sufficient factual matter, accepted
as true, to plausibly show that Hood was a “dependent” under the terms of the Plan. See Iqbal, 129
S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570).
DHHA does not allege in its second amended complaint that Hood was a “dependant” or
“beneficiary” under the Plan. Nor does it allege that Intarakamhang and Hood were legally married.
It instead avers that Hood and Intarakamhang “believed that they had established a domestic
partnership in July 2006” and that they “submitted an application for domestic partnership coverage
for Hood.” By its terms, the Plan does not consider a member’s domestic partner a “dependent.”
Those terms do not become malleable under my review. As the Supreme Court recently explained,
[w]here does § 502(a)(1)(B) grant a court the power to change the terms of the plan
as they previously existed? The statutory language speaks of “enforc[ing] ” the
“terms of the plan,” not of changing them. 29 U.S.C. § 1121(a)(1)(B) (emphasis
added). . . . [W]e have found nothing suggesting that the provision authorizes a court
to alter those terms . . . .
CIGNA Corp. v. Amara, 131 S.Ct. 1866, 1876-77 (2011). Guided in part by CIGNA’s language,
DHHA’s allegations fail to “nudge” the requisite showing that it has standing “across the line from
conceivable to plausible.” See Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008). DHHA
therefore insufficiently shows that it has standing to enforce its § 1132(a)(1)(B) claim.
My conclusion that Hood was not a “dependant” under the Plan is bolstered by Beverage
Distributors’ additional exhibits. Exhibits B, C, and D are Colorado state court records. As such,
I may consider them. See Grynberg, 390 F.3d at 1279 n.1; see also Van Woudenberg, 211 F.3d at
568, abrogated on other grounds by McGregor, 248 F.3d 955. These exhibits show that Hood was
married to Sandra SanMiguel from 2001 through November 2010. See Beverage Distribution’s Mot.
Ex. B-D. DHHA alleges that Hood and Intarakamhang submitted their application for Hood’s
coverage under the Plan on June 25, 2008, and that DHHA rendered its care to Hood in Spring 2009.
Both of these occurred while Hood was still married to SanMiguel.
Under Colorado law, an individual cannot be “married” to two different people
simultaneously. See Colo. Rev. Stat. § 14-2-110(1)(a) (“The following marriages are prohibited:
(a) A marriage entered into prior to the dissolution of an earlier marriage of one of the parties . . .
.”). This applies equally to common law marriages. See id. § 109.5(1)(b); People v. Maes, 609 P.2d
1105 (Colo. Ct. App. 1979) (where the defendant’s prior, undissolved marriage precluded his
asserted subsequent common law marriage).
Applying this law to the facts before me shows that under no set of facts was Hood a
dependent under the Plan. Even if I were to contemplate whether Hood and Intarakamhang’s
alleged domestic partnership constituted a common law marriage for purposes of “dependent” status,
DHHA’s standing showing still falls short. Because Hood was still married to SanMiguel when his
application for coverage under the Plan was submitted and when he received his treatment, he could
not have been Intarakamhang’s “spouse” under Colorado law, which means he could not have been
Intarakamhang’s “spouse” under the Plan. Therefore, Hood was not a “dependant” under the Plan.
In its response, DHHA does not dispute whether Hood was a “dependent” or his marriage
to SanMiguel. Instead, it casts the standing issue aside and argues that the issue before me is
whether Beverage Distributors’ rescission was arbitrary and capricious.
I need not survey DHHA’s position. Standing is a matter of much more import than
DHHA’s treatment suggests. Standing is “not mere[ly] [a] pleading requirement but rather an
indispensable part of the plaintiff’s case.” Lujan, 504 U.S. at 561 (emphasis added); see also
Chastain, supra; Hansen, supra; and Mitchell, supra. If DHHA lacks standing, I lack jurisdiction
to adjudicate the § 1132(a)(1)(B) claim, which would include determining whether the rescission
was arbitrary and capricious. See Felix, 387 F.3d at 1160 n.14; Hansen, 641 F.3d at 1223. DHHA
attempts to put the cart before the horse. DHHA has not established that Hood was a member or
dependent under the Plan. As a corollary, it has not established that it Hood was a participant or
beneficiary. It is therefore “inescapable” that DHHA does not have standing to bring the §
1132(a)(1)(B) claim. Mitchell, 896 F.2d at 474; accord Hansen, 641 F.3d at 1222.
Accordingly, I conclude that DHHA lacks standing to bring the § 1132(a)(1)(B) claim.
Consequently, I grant Beverage Distributors’ motion.
For the reasons set forth above, IT IS ORDERED that:
1) Principal’s Motion to Dismiss [Docs # 5 and 6] is DENIED in so far as it seeks dismissal
of the promissory estoppel claim and is DENIED as moot in so far as it seeks dismissal of the §
1132(a)(1)(B) claim and the Colo. Rev. Stat. §§ 10-3-1115 and 10-3-1116 claim;
2) DHHA’s Motion for Leave to Amend Complaint [Doc # 31] is GRANTED, and its second
amended complaint tendered therewith is accepted; and
3) Beverage Distributors’ Motion for Judgement on the Pleadings [Doc # 34] is GRANTED.
These orders leave the case to proceed with two claims and two defendants: (1) the negligent
misrepresentation claim against Beverage, and (2) the promissory estoppel claim against Principal.
8 , 2012 in Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, JUDGE
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