Corsentino v. Hub International Texas, Inc., et al
Filing
190
ORDER granting 174 Motion for Leave to File Out-of-Time Certificate of Review. Ms. Corsentino shall file the second certificate of review on or before 2/5/2018, by Magistrate Judge Scott T. Varholak on 1/29/2018. (jgonz, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-01917-RM-STV
KIMBERLY CORSENTINO,
Plaintiff,
and
JASON BROCKMAN and
MENDY BROCKMAN,
Plaintiff-Intervenors,
v.
HUB INTERNATIONAL INSURANCE SERVICES, INC. and
THE TRAVELERS INDEMNITY COMPANY OF CONNECTICUT,
Defendants.
______________________________________________________________________
ORDER
______________________________________________________________________
Magistrate Judge Scott T. Varholak
This matter comes before the Court on Plaintiff Kimberly Corsentino’s Motion for
Leave to File Out-of-Time Certificate of Review [#174] (the “Motion”). The Motion has
been referred to this Court. [#175] This Court has carefully considered the Motion and
related briefing, related oral argument held on November 27, 2017 [#167], the entire
case file and the applicable case law. For the following reasons, I GRANT the Motion.
I.
BACKGROUND
On July 5, 2013, Ms. Corsentino turned her Jeep in front of Jason and Mendy
Brockman’s Honda causing an accident injuring Ms. Brockman and rendering her a
1
tetraplegic. 1 [#173 at ¶¶ 8-9] At the time of the accident, Ms. Corsentino was a named
driver on an insurance policy (the “Policy”) issued by The Travelers Indemnity Company
of Connecticut (“Travelers”) to Corsentino Dairy Farms, Inc. (the “Farm”), and the Jeep
was listed as a scheduled vehicle. [Id. at ¶ 10]
The Policy was sold to the Farm by Defendant Hub International Insurance
Services, Inc. (“Hub”), an insurance producer and agent of Travelers. [Id. at ¶ 17] Ms.
Corsentino alleges that Hub “knew or should have known [at the time it placed the
Policy] that many of the insured Corsentino family members, including Ms. Corsentino,
were not employees of the Farm and that their vehicles were not owned by the Farm.”
[Id. at ¶ 19]
Ms. Corsentino alleges that the Policy, which has a bodily injury liability limit of
$500,000 per accident, imposed a duty upon Travelers to defend and indemnify her in
any action brought by the Brockmans related to the accident. [Id. at ¶¶ 12-13] Ms.
Corsentino further alleges that Travelers had previously paid liability benefits under the
Policy on a claim involving Ms. Corsentino and a different vehicle she owned. [Id. at ¶
22]
Following the accident, on or about July 8, 2013, the Farm and Ms. Corsentino
submitted a claim to Travelers under the Policy. [Id. at ¶ 29] At that time, Travelers
retained a law firm on behalf of the Farm and Ms. Corsentino to begin investigating the
accident, and authorized the law firm to retain an accident reconstructionist. [Id. at ¶ 30]
On July 12, 2013, Travelers informed the law firm that it was denying Ms. Corsentino’s
claim and instructed the law firm to no longer represent Ms. Corsentino; Travelers did
1
The Court cites to the allegations in the Second Amended Complaint to provide
context for the instant Motions.
2
not communicate to Ms. Corsentino that she was no longer represented. [Id. at ¶ 31]
Travelers then sent a letter to Ms. Corsentino on July 18, 2013, stating that it was
denying her claim, because “the Farm had no insurable interest in the 2008 Jeep Grand
Cherokee at the time of the Accident, as the Jeep was not owned by the Farm and was
being driven by its owner, Ms. Corsentino.” [Id. at ¶ 32] Nonetheless, on August 20,
2013, Travelers paid benefits to the Farm for the damage sustained by the Jeep in the
accident. [Id. at ¶ 34]
On August 8, 2014, the Brockmans told Travelers that they would release all
claims against Ms. Corsentino if Travelers paid the bodily injury liability limit on the
Policy. [Id. at ¶ 33] Travelers responded on September 3, 2014, refusing to pay any
liability injury coverage to the Brockmans.
[Id. at ¶ 35]
The Second Amended
Complaint then alleges that “[a]s a direct result of Travelers’ refusal to pay liability
benefits owed to the Brockmans, the Brockmans filed suit [(the “Underlying Action”)]
against Ms. Corsentino . . . on June 17, 2015.” [Id. at ¶ 36] After Ms. Corsentino was
served with a copy of the complaint in the Underlying Action, she asked Travelers to
defend her, and Travelers refused. [Id. at ¶¶ 37-38] The Underlying Action concluded
with the entry of a $31,761,724.04 judgment against Ms. Corsentino on December 5,
2016.
[Id. at ¶ 40]
On December 28, 2016, Ms. Corsentino asked Travelers to
indemnify her from this judgment, and Travelers refused on February 3, 2017. [Id. at ¶¶
41-42]
Ms. Corsentino originally filed this lawsuit against Defendants Hub and Travelers
in Denver District Court on July 1, 2016. [#3] The state court complaint alleged four
causes of action: (1) declaratory relief, (2) breach of contract, (3) bad faith breach of
3
contract, and (4) civil conspiracy. [Id. at 3-5] Of relevance to the instant Motion, only
the second and fourth claims were brought against Hub. [Id.] On July 27, 2016, Hub
(with Travelers’ consent) removed the case to this Court, based on diversity of
citizenship pursuant to 28 U.S.C. § 1332. [#1 at 1, 4]
On September 6, 2016, Ms. Corsentino filed a certificate of review pursuant to
Colorado Revised Statute §13-20-602 (the “Original Certificate of Review”). [#24] In
the Original Certificate of Review, Ms. Corsentino certified:
that counsel has consulted with a professional with expertise in the areas
addressed in the Complaint, has reviewed the facts and circumstances as
alleged in the plaintiff’s Complaint, and that the professional has found the
filing of the claims to be justified and not lack substantial justification within
the meaning of C.R.S. §13-17-102(4) based on his training, expertise,
experience and knowledge concerning insurance industry claim-handling
and policy issuance standards and practices for complying with applicable
law.
[Id.]
Travelers subsequently filed a Motion to Compel Joinder of Additional Parties,
asking the Court for an order compelling the joinder of the Brockmans. [#33] On
February 1, 2017, the Court sua sponte issued an Order asking the parties to address
whether joinder of the Brockmans would destroy the Court’s diversity jurisdiction. [#66]
In response, Ms. Corsentino and Defendants both asserted that the Court’s diversity
jurisdiction would not be altered, because the Brockmans could be added as involuntary
plaintiffs. [#67, 68] Before the Court resolved Travelers’ Motion to Compel Joinder, the
Brockmans filed a Motion to Intervene.
[#73]
The Court granted the Motion to
Intervene, and the Brockmans were given leave to intervene. [#75]
On March 15, 2017, Ms. Corsentino filed an Amended Complaint asserting six
claims for relief: (1) declaratory judgment; (2) breach of contract; (3) bad faith breach of
4
contract; (4) violation of Colorado Revised Statute § 10-3-1115 (statutory bad faith); (5)
negligent procurement; and (6) negligent misrepresentation. 2 [#80 at 12-17] Only the
last two claims were brought against Hub. [Id.] Despite changing the causes of action
against Hub, Ms. Corsentino did not file a new certificate of review.
On September 12, 2017, Hub filed a Motion to Dismiss Plaintiff’s First Amended
Complaint, arguing that the Court should dismiss the negligence claims against Hub
because Ms. Corsentino failed to file a certificate of review with respect to the
negligence claims (“Hub’s Motion to Dismiss”). 3
[#129] In her Response to Hub’s
Motion to Dismiss, Ms. Corsentino argued that she was not required to file a new
certificate of review and that the Original Certificate of Review applied to the claims
asserted in the First Amended Complaint.
[#134 at 9-13]
In the alternative, Ms.
Corsentino asked the Court to accept a newly attached certificate of review for filing out
of time. [Id. at 14-15] On November 27, 2017, this Court heard oral argument on Hub’s
Motion to Dismiss, as well as several other pending motions. [#167]
On December 5, 2017, this Court granted Ms. Corsentino’s Motion to Amend
Scheduling Order [#149] and Motion to Amend Complaint to Add Prayer for Exemplary
Damages [#148, 151], thereby authorizing Ms. Corsentino to file a Second Amended
Complaint adding a claim for exemplary damages. [#172] The Court therefore denied
Hub’s Motion to Dismiss as moot, with leave to re-file in response to the Second
2
On that same day, the Brockmans filed their Complaint in Intervention and Jury
Demand, which “incorporate[d] all paragraphs, allegations and claims” set forth in Ms.
Corsentino’s Amended Complaint. [#83 at 19]
3
Travelers had previously filed a Motion to Dismiss Plaintiff’s Third, Fourth, Fifth and
Sixth Claims for Relief (“Travelers’ Motion to Dismiss”). [#93] On August 30, 2017, this
Court issued a Recommendation that Travelers’ Motion to Dismiss be denied. [#126]
On September 22, 2017, United States District Court Judge Raymond P. Moore
adopted that Recommendation and denied Travelers’ Motion to Dismiss. [#133]
5
Amended Complaint. [Id. at 14] Finally, the Court declined to rule on Ms. Corsentino’s
request to accept an out-of-time certificate of review, as “the better practice would be for
Plaintiff to file a motion to file an out-of-time Certificate of Review.” [Id. at 14-15 (citing
D.C.COLO.LCivR 7.1(d) (“A motion shall not be included in a response or reply to the
original motion. A motion shall be filed as a separate document.”))]
Ms. Corsentino filed the instant Motion on December 8, 2017. [#174] While not
conceding that a second certificate of review is required, Ms. Corsentino nonetheless
asks the Court to accept a second certificate of review out of time. [Id.] Neither the
Brockmans nor Travelers opposes the Motion. [Id. at 2] On December 29, 2017, Hub
filed a Response in Opposition to the Motion [#186], to which Ms. Corsentino replied
[#189].
II.
STANDARD OF REVIEW
Colorado law requires plaintiffs to file a certificate of review in civil actions based
upon professional negligence brought against licensed professionals if expert testimony
would be necessary to establish a prima facie case. Colo. Rev. Stat. §§ 13-20-601; 1320-602. The certificate of review shall be filed within sixty days after the service of the
complaint, counterclaim, or cross claim, unless the court determines that a longer period
is necessary for good cause shown. Colo. Rev. Stat. § 13-20-602(1)(a). In determining
whether good cause exists to permit the late filing of a certificate of review, the Court
shall consider: (1) whether the neglect causing the late filing was excusable; (2) whether
the moving party has alleged a meritorious claim or defense; and (3) whether permitting
the late filing would be consistent with equitable considerations, including any prejudice
to the nonmoving party. RMB Servs., Inc. v. Truhlar, 151 P.3d 673, 676 (Colo. App.
6
2006) (citing Hane v. Tubman, 899 P.2d 332, 335 (Colo. App. 1995)).
“Since the
standard for good cause is drawn from the default judgment context, the criteria for
finding that good cause exists are to be liberally construed in favor of resolution on the
merits.” DeBuhr v. Hern, No. 15-cv-02613-PAAB-MEH, 2016 WL 9738100, at *2 (D.
Colo. Sept. 12, 2016) (citing Sumler v. Dist. Court, City and Cty. of Denver, 889 P.2d
50, 56 (Colo. 1995)).
III.
ANALYSIS
Ms. Corsentino contends that the Original Certificate of Review covered the
claims asserted in the First Amended Complaint and, as a result, she was not required
to file a second certificate of review. [#134 at 9-13; #174 at 11-13] Alternatively, Ms.
Corsentino argues that the Court should permit her to file an out-of-time certificate of
review.
[#134 at 14-15; #174 at 11-15]
The question of whether the filing of an
amended complaint triggers an obligation to file a second certificate of review and, if so,
under what circumstances appears to be a novel one. Neither party directs the Court to
any authority addressing these issues. This Court, however, need not resolve this
question because, assuming arguendo that a second certificate of review is required,
the Court finds Plaintiff has shown good cause to file an out-of-time certificate of review.
As outlined earlier, in determining whether good cause exists to permit the late
filing of a certificate of review, the Court shall consider: (1) whether the neglect causing
the late filing was excusable; (2) whether the moving party has alleged a meritorious
claim or defense; and (3) whether permitting the late filing would be consistent with
equitable considerations, including any prejudice to the nonmoving party. RMB Servs.,
7
Inc. 151 P.3d at 676. Here, each of these factors supports permitting Ms. Corsentino to
file an out-of-time certificate of review.
First, the Court concludes that Ms. Corsentino’s neglect was excusable. Ms.
Corsentino represents that she did not file a second certificate of review because she
believed the Original Certificate of Review was sufficient to cover the new claims
brought in the First Amended Complaint. [#174 at 11] Ms. Corsentino’s belief that she
was not required to file a second certificate of review is reasonable and understandable.
As noted above, neither party has pointed the Court to any case in which a court
addressed whether a second certificate of review was needed after the amendment of a
complaint. Moreover, as Ms. Corsentino asserts in her Motion, the factual allegations in
the Original and First Amended Complaints are similar. Given the legal uncertainty over
whether a second certificate of review was necessary, the Court finds excusable
neglect. See Arvada Dev. Grp., LLP v. All Envtl., Inc., No. 07-cv-01107-MSK-KMT,
2008 WL 927651, at *4 (D. Colo. April 3, 2008) (finding good cause existed to file an
out-of-time certificate of review where the law was not clear that a certificate of review
was necessary).
Second, the Court finds that Ms. Corsentino has alleged a meritorious claim.
The Court notes that Hub answered the First Amended Complaint. [#91] Hub’s failure
to file a motion pursuant to Federal Rule of Procedure 12(b)(6) at least suggests that
even Hub believed the First Amended Complaint stated a claim for relief. See DeBuhr,
2016 WL 9738100, at * 3 (finding that plaintiff had satisfied the second prong when
defendants failed to attack the sufficiency of the allegations or identify any deficiencies
in the plaintiffs’ complaint).
Although Hub, for the first time in its response to this
8
Motion, argues that Plaintiff’s claims against it are barred by the applicable statute of
limitations, the Court already rejected similar arguments raised by Travelers in its
motion to dismiss. 4 [#126, 133] While the Court makes no determination as to the
ultimate merit of Ms. Corsentino’s claims, she has sufficiently alleged a meritorious
claim to justify the late filing of a certificate of review.
Finally, the Court finds that principles of equity support the out-of-time filing of a
certificate of review.
As indicated above, Ms. Corsentino has provided a valid
justification for the late filing and equity does not support dismissal of a potentially viable
claim based upon confusion in an uncertain area of the law.
Moreover, the only
prejudice asserted by Hub is that it has been forced to defend the instant case. [#142 at
10; #186 at 14] But, Hub would have been forced to defend this case if Ms. Corsentino
had timely filed a second certificate of review. Because Hub has failed to allege any
prejudice resulting from the delay in filing the second certificate of review, the Court
finds that Hub would not be prejudiced by the granting of the Motion. See Carson v.
United States, No. 13-cv-02962-CMA-KLM, 2014 WL 3563021, at *6 (D. Colo. July 18,
2014) (finding that the “prejudice” resulting from having to defend a lawsuit did not
justify denying leave to file an out-of-time certificate of review); Bolsa Res., Inc. v. AGC
Res., Inc., No. 11-cv-01293-MSK-KMT, 2012 WL 1454023, at *2 (D. Colo. Apr. 25,
2012) (finding lack of any prejudice as a result of late filing despite professional’s
assertion that the late filing would ensure that the professional would not obtain the
benefit intended by the statute). Accordingly, the Court finds that the third factor also
supports granting Ms. Corsentino leave to file an out-of-time certificate of review.
4
In addition, this Court previously concluded that Ms. Corsentino has made a prima
facie showing of willful and wanton conduct by Hub, though in doing so the Court
considered facts outside the pleadings. [#172 at 11-14]
9
Accordingly, because all three factors support allowing Ms. Corsentino to file an
out-of-time certificate of review, the Court grants the Motion.
IV.
CONCLUSION
For the foregoing reasons, this Court GRANTS Ms. Corsentino’s Motion for
Leave to File Out-of-Time Certificate of Review [#174]. Ms. Corsentino shall file the
second certificate of review on or before February 5, 2018.
DATED: January 29, 2018
BY THE COURT:
s/Scott T. Varholak
United States Magistrate Judge
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?