Romero v. Allstate Fire & Casualty Insurance Company

Filing 116

ORDER granting in part and denying in part 113 Motion to Amend/Correct/Modify. By Magistrate Judge Nina Y. Wang on 4/19/16. (nywlc1)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01522-NYW
BERTHA N. ROMERO,
Plaintiff,
v.
ALLSTATE FIRE & CASUALTY INSURANCE COMPANY
Defendant.

ORDER ON MOTION FOR FINDING OF FACT AND CONCLUSION OF LAW
REGARDING THE SETOFF OF MEDICAL PAYMENT BENEFITS
Magistrate Judge Nina Y. Wang
This matter is before the court, pursuant to 28 U.S.C. § 636(c) and the Order of Reference
dated August 21, 2014 [#19], on Defendant Allstate Fire & Casualty Insurance Company’s
Motion for Finding of Fact and Conclusion of Law Regarding the Setoff of Medical Payment
Benefits (“Motion for Set Off”) [#113, filed February 18, 2016]. In its Motion for Set Off,
Defendant Allstate Fire & Casualty Insurance Company (“Allstate” or “Defendant”) requests
that the court clarify whether its Second Amended Final Judgment accounted for a set-off for the
medical payment (“med-pay”) benefits in the amount of $5,000 provided by Allstate to Plaintiff
Bertha N. Romero (“Plaintiff” or “Ms. Romero”), and further amend the Final Judgment in this
case to reduce Ms. Romero’s award by $5,000.00. Ms. Romero objects, arguing that the jury
awarded Ms. Romero $47,836.77, without any indication as to how that number was attributable
to payment of her medical payments. [#114]. As a result, Ms. Romero contends, the court’s

Order on Post-Trial Motions [#111] and the Second Amended Final Judgment [#112] should
stand.
ANALYSIS
The background of this case has been described in detail in various court orders,
including the court’s Order on Post-Trial Motions [#111]. The undisputed evidence at trial
demonstrated that the third-party tortfeasor’s insurance carrier paid $50,000.00 in benefits to
Plaintiff.

In addition, the undisputed evidence demonstrated that Allstate paid $5,000.00 in

medical payment benefits in favor of Plaintiff. Therefore, the court calculated the total amount of
benefits that Plaintiff may collect under her UIM coverage to be $21,436.77. [#100].
As noted by Plaintiff, the jury in this case awarded her $47,836.77 in economic losses
(past and future). [#92]. Nothing within the Special Verdict Form indicates how the jury
allocated the economic losses, e.g., whether the jury attributed that amount to medical expenses
or lost wages. [Id.]. Nor is there any way to discern from the jury verdict form how the jury
allocated the award between past and future economic damages. [Id.]. There is no indication of
what part, if any, of the economic damages award is attributable to past medical expenses. [Id.].
Furthermore, in its Motion to Alter/Amend Judgment [#106], Allstate never presented
any argument or evidence to support its request that the court amend its judgment to set off the
$5,000.00 paid by Allstate for medical payment benefits. See [#106]. While Allstate argued in
its Trial Brief that it was entitled to set off the medical payment benefits previously paid so as to
prevent double recovery for the same damages [#70 at 11-12], it identified no evidence from the
record that would support a conclusion that the jury’s economic damage award is duplicative of
the medical expenses paid as part of the medical payment benefits. In addition, Allstate’s
argument relies upon language from the insurance policy at issue, [id.], which was not subject to

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any testimony at trial and was not admitted into evidence at trial. Compare [#91-1] with [#78].
Finally, the case of Calderon v. American Family Mut. Ins. Co., --- P. 3d ----, 2014 WL 2149652
(Colo. App. May 22, 2014), does not compel a different result.1
CONCLUSION
For the foregoing reasons, IT IS ORDERED that:
(1)

The Motion for Finding of Fact and Conclusion of Law Regarding the Setoff of

Medical Benefits [#113] is GRANTED IN PART and DENIED IN PART;
(2)

The court’s findings of fact and conclusions of law are set forth above; and

(3)

All other relief sought by Defendant Allstate Fire & Casualty Insurance Company

IS DENIED.

DATED: April 19, 2016

BY THE COURT:

s/ Nina Y. Wang
Nina Y. Wang
United States Magistrate Judge

1

The issue of whether an insurer may reduce its payment to an insured for an underinsured
motorist claim by payments made to the insured under the insured’s medical payment coverage
is yet to be resolved by the Colorado Supreme Court. See Calderon v. American Family Mut.
Ins. Co., No. 14SC494, 2015 WL 3956029 (June 29, 2015).
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