Artisan and Truckers Casualty Company v. AIFA Trucking LLC et al
ORDER Granting 26 Plaintiffs Motion to Dismiss Defendants Abuse of Process Claim, by Judge Wiley Y. Daniel on 2/4/2016.(evana, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-0726-WYD-KLM
ARTISAN AND TRUCKERS CASUALTY COMPANY,
AIFA TRUCKING, LLC;
SILVA TRUCKING, INC.;
MARIO CONTERAS and ANA HOLGUIN as Parents and Next Friends of VALERIA
CONTERAS-HOLGUIN (Deceased Minor);
MARTIN ROJAS as Parent and Next Friend of XIMENA ROJAS (Minor) and ANGELA
MARIA DE LOURDES MACIAS;
NORMA HOLGUIN as Parent and Next Friend of ENRIQUE OLIVAS (Minor);
ORDER ON MOTION TO DISMISS
INTRODUCTION & BACKGROUND
THIS MATTER is before the Court on Plaintiff’s Motion to Dismiss Abuse of
Process Claim of Defendants Mario Conteras and Ana Holguin, as parents and next
friends of Valeria Conteras-Holguin; Martin Rojas, individually and as parent and next
friend of Ximena Rojas and Angela Rojas; Maria DeLourdes-Macias; and Norma Holguin,
individually and as next friend of Enrique Olivas (ECF No. 26), filed on July 8, 2015. The
matter is fully briefed.
On October 11, 2014, Defendant Luis Avila was driving a tractor trailer in Weld
County, Colorado. Approaching stopped vehicles on the road, Avila failed to stop in time
and swerved into the left lane. Upon swerving, his trailer collided with a car owned by
Defendant Norma Holguin, and driven by Defendant Martin Rojas. Defendants Norma
Holguin, Maria DeLourdes-Macias, Enrique Olivas, Valeria Conteras, Ximena Rojas, and
Angela Rojas were passengers of the car. Valeria Conteras was pronounced dead at
the scene. The other passengers suffered injuries as a result of the accident.
On March 9, 2015, Defendants Mario Conteras, Ana Holguin, Martin Rojas, Maria
DeLourdes-Macias, and Norma Holguin (“Conteras Defendants”) filed a lawsuit in Weld
County District Court against Luis Avila, AIFA Trucking, LLC, and Silva Trucking, Inc. for
the wrongful death of Valeria Conteras and for injuries and damages suffered in the
The Plaintiff in this case, Artisan and Truckers Casualty Company (“Artisan”),
issued a Commercial Auto Insurance Policy to AIFA Trucking for the period from
September 10, 2014 to September 10, 2015. The policy also contained a MCS-90
endorsement issued under the Federal Motor Carrier Act of 1980. Artisan was not a
named Defendant in the state court action.
The parties dispute Artisan’s liability under the applicable insurance policies. On
April 8, 2015, Artisan filed a complaint in this Court for declaratory judgment against all of
the Defendants referenced in the caption above, seeking judgment that the insurance
policy it issued did not provide liability coverage, and that Artisan owes neither defense
nor indemnity under the policy in connection with the underlying wrongful death Weld
County state court action arising out of the subject accident.
On June 19, 2015, the Conteras Defendants filed an Answer to Plaintiff’s
Complaint, and included two Counterclaims against Plaintiff: 1) seeking declaratory
judgment of Artisan’s insurance liability for the underlying accident, and 2) claiming
misuse and abuse of process by Plaintiff in filing the Complaint against the Conteras
Defendants. Plaintiff urges the Court in the present motion to dismiss the abuse of
process claim against it by the Conteras Defendants.
The Conteras Defendants seek damages, costs, pre- and post-judgment
interest, and attorney’s fees. Plaintiff argues that the Conteras Defendants have
failed to state a claim for which relief may be granted, and that the abuse of
process claim should be dismissed.
STANDARD OF REVIEW
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a pleading must
contain a “short and plain statement of the claim showing that the pleader is entitled to
relief.” Although this standard does not require detailed factual allegations, it does
require “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 678 (2007). Further, “a pleading that offers
‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will
not do’ . . . [n]or does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further
factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550
U.S. at 555, 557).
A motion to dismiss can be granted if a complaint fails to state a claim upon which
relief can be granted. Fed. R. Civ. P. 12(b)(6). In order for a complaint to survive a
motion to dismiss, it must contain “sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Id., citing Twombly, 550 U.S. at 570. Facial
plausibility 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.,
citing Twombly, 550 U.S. at 556. The plausibility standard “asks for more than a sheer
possibility that a defendant has acted unlawfully,” and indeed, when a complaint “pleads
facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line
between possibility and plausibility of entitlement to relief.’” Id., citing Twombly, 550 U.S.
at 557 (some quotations omitted).
If the facts do not permit a court to infer more than the mere possibility of
misconduct, “the complaint has alleged – but it has not ‘show[n]’- ‘that the pleader is
entitled to relief.’” Iqbal, 556 U.S. at 679, citing Fed. R. Civ. Pro. 8(a)(2). “Factual
allegations must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. A “plaintiff must ‘nudge [ ][his] claims across the line from
conceivable to plausible’ in order to survive a motion to dismiss. . . . Thus, the mere
metaphysical possibility that some plaintiff could prove some set of facts in support of the
pleaded claims is insufficient; the complaint must give the court reason to believe that this
plaintiff has a reasonable likelihood of mustering factual support for these claims.”
Deatley v. Allard, 2015 WL 134271, at *2 (D. Colo. Jan. 9, 2015), citing Ridge at Red
Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007).
A valid abuse of process claim must allege “(1) an ulterior purpose for the use of a
judicial proceeding; (2) willful action in the use of that process which is not proper in the
regular course of the proceedings, that is, use of a legal proceeding in an improper
manner; and (3) resulting damage.” Walker v. Van Laningham, 148 P.3d 391, 394 (Colo.
App. 2006). In Walker, the court noted that “[t]he essence of the tort of abuse of process
is the use of a legal proceeding primarily to accomplish a purpose that the proceeding
was not designed to achieve.” Id., citing Yadon v. Lowry, 126 P.3d 332, 337 (Colo. App.
2005). “Establishment of a prima facie case requires not only proof of an ulterior motive
but proof of willful actions by the defendant in the use of process which are not proper in
the regular conduct of a proceeding.” Id.; Aztec Sound Corp. v. W. States Leasing Co.,
510 P.2d 897, 899 (Colo. App. 1973); Inst. for Prof'l Dev. v. Regis Coll., 536 F.Supp. 632,
635 (D. Colo. 1982). To find abuse of process, “[t]he legal proceeding must be used in
an improper manner, for example, to accomplish a coercive goal.” Id.; see Palmer v.
Tandem Mgmt. Servs., Inc., 505 N.W.2d 813, 817 (Iowa 1993) (“The improper purpose is
ordinarily an attempt to secure from another some collateral advantage not properly
includable in the process itself and is a form of extortion in which a lawfully used process
is perverted to an unlawful use.”).
Some examples of abuse of process cases in Colorado courts (as cited in Walker)
include Coulter v. Coulter, 214 P. 400, 403 (Colo. 1923) (defendant instituted lunacy
proceedings against plaintiff upon a false affidavit and for the “atrocious” purpose of
alienating plaintiff from his mother); Am. Guar. & Liab. Ins. Co. v. King, 97 P.3d 161 (Colo.
App. 2003) (party filed a lawsuit against a wife to obtain money from her husband without
a valid claim); Colo. Homes, Ltd. v. Loerch–Wilson, 43 P.3d 718 (Colo. App. 2001) (party
obtained a temporary restraining order for purposes other than preventing the opposing
party from threatening harm); Lauren Corp. v. Century Geophysical Corp., 953 P.2d 200
(Colo. App. 1998) (party requested a declaratory judgment not to obtain declaratory relief,
but to coerce the opposing party to transfer its software to a third party); Aztec Sound
Corp. v. W. States Leasing Co., 510 P.2d 897 (Colo. App. 1973) (leasing company
commenced replevin action to repossess equipment and used such process to extract
payment from lessee under threat of removing equipment and thereby closing down
Here, under the first element, it appears that the Conteras Defendants argue that
Plaintiff’s “ulterior purpose” in initiating the proceeding was to “gain a tactical advantage in
the Underlying State Court action by harassing the Conteras Defendants and forcing
them to retain attorneys” when Plaintiff allegedly knew that it was liable for insurance
coverage under the policy. Def.’s Counterclaim, ECF No. 15, p. 8. Plaintiff filed its
Complaint seeking declaratory judgment under 28 U.S.C. § 2201(a) and Fed. R. Civ. P.
57, “to determine an actual case and controversy between [Artisan] and Defendants
regarding the parties’ respective rights and obligations under a policy of insurance issued
by [Artisan] to AIFA [Trucking, LLC].” Compl., ¶ 19. In asserting a claim for declaratory
judgment, a plaintiff “must assert a claim for relief that, if granted, would affect the
behavior of the particular parties listed in his complaint.” Jordan v. Sosa, 654 F.3d 1012,
1025 (10th Cir. 2011) (citations omitted). An action seeking declaratory relief properly
addresses all interested parties that may be affected by any resulting declaratory relief.
See 28 U.S.C. § 2201(a).
Plaintiff’s request for declaratory relief was properly filed, naming all interested
parties, and seeks to impose a declaration that would affect each of those parties. It is
clear that the Conteras Defendants do not find merit in Plaintiff’s claims, but those
arguments are more properly asserted in either their own motion for declaratory judgment
(which they have already made), or in a substantive response to the Plaintiff’s Complaint.
I make no ruling at this time as to whether or not Plaintiff’s claim for declaratory relief
should be granted; I only find that the filing of the Complaint, and the naming the Conteras
Defendants as parties, was proper in form, and in no way suggests that Plaintiff sought
any kind of abusive ulterior purpose to gain advantage in a state court action (to which it is
not even a party) by forcing the named Defendants to seek legal representation. Indeed,
if naming defendants in a legal action who then seek legal representation was considered
abuse of process, most lawsuits would never be filed.
Further, the Conteras Defendants fail to assert sufficient factual allegations to
support a finding of any ulterior purpose on the part of Plaintiff in filing this action. Apart
from the threadbare conclusion that Plaintiff sought a tactical advantage in the state court
action, the counterclaim is devoid of facts that would support the first element of an abuse
of process claim against Plaintiff.
As to the second element – use of a legal proceeding in an improper manner – the
Conteras Defendants state that Plaintiff is “using its superior economic resources in an
attempt to intimidate and discourage Defendants from participating in this action.” As
support for this, the Conteras Defendants cite a paragraph in Plaintiff’s Complaint that
[Artisan] does not, by bringing this action, request the assistance or
participation of any of the Defendants in this action. To the extent that the
Defendants wish to participate in this action, such participation concerns
their assertion or protection of their own rights and claims, if any, which
rights and claims are adverse to [Artisan].”
Def.’s Counterclaim, ECF No. 15, p. 7.
I do not interpret this paragraph as an illegal attempt to “discourage” the Conteras
Defendants from participating in the action, nor do I find anything in Plaintiff’s Complaint
that can reasonably be construed as “an attempt to intimidate” these defendants. The
Conteras Defendants rely only on unsupported allegations and legal conclusions. Under
prevailing case law, this is insufficient to state a claim.
As to the third element, the Conteras Defendants claim that Plaintiff was “aware of
the fact that these Defendants have suffered and continue to suffer from emotional and
physical injuries as a result of the collision, [are] unsophisticated in matters of insurance,
and [are] persons of limited financial means,” and that “these Defendants have suffered,
and continue to suffer, damages and losses, including but not limited to emotional
distress, anxiety, loss of enjoyment of life, and attorney’s fees.” Id. at 7-8. Again, these
are only allegations and legal conclusions, devoid of any factual support.
In deciding their abuse of process claim, the Conteras Defendants argue that the
Court must analyze their substantive arguments for declaratory relief against the Plaintiff,
which assert that Plaintiff has an obligation under the insurance policy for the underlying
accident. Def.’s Response, ECF No. 29, p. 6. For support, they cite the Lauren case
(supra), and Am. Family Mutual Ins. Co. v. Bowser, 779 P.2d 1376, 1381 (Colo. App.
1989) for the proposition that abuse of process may be found against parties who file
declaratory relief either for coercive purposes or without reasonable justification. The
Conteras Defendants assert that, since Plaintiff’s claims have no substantive merit, they
are filed without reasonable justification.
In Lauren, the court found that the defendant’s claim was an abuse of process
because “the action lacked any basis in law,” including a lack of jurisdiction. Lauren, 953
P.2d at 203. The defendant in Lauren was using litigation for the sole purpose of
coercing the plaintiff to transfer software to a third party, and not for any legitimate litigious
purpose. Id. at 202. As discussed above, Plaintiff’s claim was properly filed, naming all
interested parties, and seeks to impose a declaration that would affect each of those
parties. Therefore, I find no impermissible coercive basis for the filing of Plaintiff’s
The court in Bowser dealt with a request for declaratory relief by an insurance
company in which the insured made claims of bad faith against the insurer. The
Conteras Defendants have not made a bad faith claim in this action. Nevertheless, the
Bowser case is still distinguishable in that the court there noted that “[t]he declaratory
judgment procedure was established primarily ‘to provide a ready and speedy remedy, in
cases of actual controversy, for determining issues and adjudicating the legal rights,
duties, or status of the respective parties, before controversies with regard thereto lead to
the repudiation of obligations, the invasion of rights, and the commission of wrongs.’” Id.
at 1380, citing People ex rel. Inter–Church Temperance Movement v. Baker, 297 P.2d
273 (Colo. 1956). “It provides an early relief from uncertainty as to the future obligations
for one who would normally be a defendant and who otherwise would not have his
questions adjudicated until his adversary takes the initiative.” Id. (citations omitted). “It
is a procedural, not a substantive, remedy.” Id., citing Aetna Life Ins. Co. v. Haworth,
300 U.S. 227 (1937). Plaintiff’s declaratory relief action was properly filed, with
For all of the above stated reasons, the Conteras Defendants’ allegations are
insufficient to support their claims of abuse of process, and the claim must be dismissed
Based on the foregoing, it is
ORDERED that Plaintiff’s Motion to Dismiss Defendants’ Abuse of Process Claim
(ECF No. 26) is GRANTED, and the Conteras Defendants’ second claim of relief for
misuse and abuse of process is DISMISSED.
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Dated: February 4, 2016.
BY THE COURT:
s/ Wiley Y. Daniel
WILEY Y. DANIEL,
SENIOR UNITED STATES DISTRICT JUDGE
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