Glenn v. Allstate Insurance Company
Filing
35
ORDER by Magistrate Judge Kristen L. Mix on 10/19/17. 26 Motion for Summary Judgment is DENIED. (lgale, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-02297-KLM
LARRY GLENN,
Plaintiff,
v.
ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant’s Motion for Summary Judgment
[#26]1 (the “Motion”). Plaintiff filed a Response [#28] in opposition to the Motion, and
Defendant filed a Reply [#30]. The Court has reviewed these filings, the entire case file,
and the applicable law, and is sufficiently advised in the premises. For the reasons set
forth below, the Motion [#26] is DENIED.2
I. Summary of the Case3
1
“[#26]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.
2
Pursuant to 28 U.S.C. § 636(c) and D.C.COLO.LCivR 72.2(d), the parties in this civil
action consented to have the undersigned conduct all proceedings. See [#19, #20].
3
The following summary construes the evidence in the light most favorable to Plaintiff, as
the nonmovant. See Ellis v. J.R.’s Country Stores, Inc., 779 F.3d 1184, 1186 (10th Cir. 2015) (“We
. . . recit[e] all summary-judgment evidence in the light most favorable to . . . the nonmovant.”). To
the extent that Plaintiff has not directly disputed Defendant’s recitation of the facts, the Court cites
to the Motion [#26].
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Plaintiff Larry Glenn (“Plaintiff”) was involved in an automobile collision on March 24,
2015 (the “collision”), involving three other vehicles: an unknown vehicle (the “phantom
vehicle”), a vehicle driven by Jorge Reyes Ortega (“Reyes Ortega”), and a semi-truck.
Motion [#26] at ¶¶ 1-4 (undisputed facts). Mr. Reyes Ortega was found to be 100% at fault
for the collision, and Plaintiff settled with Mr. Reyes Ortega’s insurer, American Family
Insurance (“American Family”), for the policy limit of $50,000. Id. at ¶¶ 15, 25-26.
Prior to settling with American Family, Plaintiff requested a settlement offer under
his policy covering Uninsured/Underinsured Motorists (“UM/UIM policy”) from Defendant.
Id. at ¶ 17. Defendant extended settlement offers for $12,150 and then $13,000, and did
not receive a response to either offer from Plaintiff. Id. at ¶¶ 20-23. Defendant performed
another evaluation of Plaintiff’s claim and notified Plaintiff that it was rescinding the
settlement offer for $13,000 because Defendant believed that Plaintiff was adequately
compensated by the proceeds of the American Family policy. Id. at 27-28. Independent
from Plaintiff’s UM/UIM claim, both parties acknowledge that Plaintiff recovered $32,738.38
for property damage related to the automobile collision. Id. at 2; Glenn Dep. 46:24-47:5
[#26-1] at 13. Defendant initially paid this amount but later recovered it from Mr. Reyes
Ortega. Motion [#26] at 2.
Plaintiff is now seeking damages from Defendant under his UM/UIM policy for
alleged injuries caused by the phantom vehicle. Compl. [#4] ¶ 29. Plaintiff asserts three
claims against Defendant in this case: (1) an underinsured motorist claim for benefits; (2)
a breach of contract claim for breach of the UM/UIM policy; and (3) a statutory
unreasonable delay and/or denial of UM/UIM benefits claim. Id. at 4-5. Defendant moves
for entry of summary judgment in its favor on Claims One and Two because it argues that
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Plaintiff is only seeking damages for psychological injuries, which are not covered under
his UM/UIM policy. Motion [#26] at 2. Defendant moves for entry of summary judgment
on Claim Three on the grounds that Plaintiff already recovered more than his “economic”
damages from American Family and thus, no benefits are due under the policy. Id.
II. Standards
A.
Motion for Summary Judgment
The purpose of a motion for summary judgment pursuant to Fed. R. Civ. P. 56 is to
assess whether trial is necessary. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Pursuant to Fed. R. Civ. P. 56(a), summary judgment should be entered if the pleadings,
the discovery, any affidavits, and disclosures on file show “that there is no genuine issue
as to any material fact and that the movant is entitled to judgment as a matter of law.” An
issue is genuine if the evidence is such that a reasonable jury could resolve the issue in
favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A fact is material if it might affect the outcome of the case under the governing substantive
law. Id.
The burden is on the movant to show the absence of a genuine issue of material
fact. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (citing Celotex,
477 U.S. at 323). When the movant does not bear the ultimate burden of persuasion at
trial, the “movant may make its prima facie demonstration [of the absence of a genuine
issue of material fact] simply by pointing out to the [C]ourt a lack of evidence for the
nonmovant on an essential element of the nonmovant’s claim.” Id. at 671. If the movant
carries the initial burden of making a prima facie showing of a lack of evidence, the burden
shifts to the nonmovant to put forth sufficient evidence for each essential element of his
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claim such that a reasonable jury could find in his favor. See Anderson, 477 U.S. at 248;
Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321,
1326 (10th Cir. 1999), abrogation recognized by Dewitt v. Sw. Bell Tel. Co., 845 F.3d 1299,
1308 (10th Cir. 2017). The nonmovant must go beyond the allegations and denials of his
pleadings and provide admissible evidence, which the Court views in the light most
favorable to him. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Panis v. Mission
Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir. 1995) (citing Celotex, 477 U.S. at 324).
Conclusory statements based merely on conjecture, speculation, or subjective belief are
not competent summary judgment evidence. Bones v. Honeywell Int’l, Inc., 366 F.3d 869,
875 (10th Cir. 2004).
The nonmoving party’s evidence must be more than “mere
reargument of [his] case or a denial of an opponent’s allegation” or it will be disregarded.
See 10B Charles Alan Wright, et. al., Federal Practice and Procedure § 2738 at 356 (3d
ed. 1998).
B.
Choice of Law
Based on the briefing of the Motion, the parties appear to agree that Colorado law
controls this diversity action. Motion [#26] at 7; Response [#28] at 1-2. Therefore, the
Court applies federal procedural law and Colorado substantive law. See Klaxon Co. v.
Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941) (applying choice of law rules of the forum
state in a diversity case); Essex Ins. Co. v. Vincent, 52 F.3d 894, 896 (10th Cir. 1995).
“When the federal courts are called upon to interpret state law, the federal court must look
to the rulings of the highest state court, and, if no such rulings exist, must endeavor to
predict how that high court would rule.” Johnson v. Riddle, 305 F.3d 1107, 1118 (10th Cir.
2002).
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III. Analysis
A.
Claims One and Two
Defendant’s only argument with respect to Claims One and Two is that Plaintiff is
solely seeking damages for psychological injuries, which are not covered under his UM/UIM
policy. Motion [#26] at 8. Defendant argues that these claims therefore fail. Id. Plaintiff
argues that it is clear from his Complaint [#4] that he is seeking more than damages related
to psychological injuries. Response [#28] at 2.
As an initial matter, Defendant points to the fact that in the Response [#28], Plaintiff
does not cite to any evidence and only refers to the Complaint. See Reply [#30] at 2;
Response [#28] at 2. Defendant argues that it is insufficient for Plaintiff to rely solely on
allegations when defending against a summary judgment motion, and that the Court may
therefore consider the facts presented in the Motion [#26] as undisputed because Plaintiff
failed to properly address them. Reply [#30] at 2. While it is true that Plaintiff does not
offer or cite to any evidence, his reliance on the Complaint is warranted to address the
issue of what relief he is seeking. Additionally, the evidence submitted by Defendant is
sufficient to create an issue of material fact, as will be discussed below. See Barton v. City
& Cty. of Denver, 432 F. Supp. 2d 1178, 1193-94 (D. Colo. 2006) (finding that although the
plaintiff failed to file a substantive opposition to the defendants’ motion for summary
judgment, the exhibits submitted by the defendants alone were sufficient to create an issue
of material fact).
The UM/UIM policy provided by Defendant states that Defendant “will pay damages
that an insured person is legally entitled to recover from the owner or operator of an
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uninsured auto because of bodily injury sustained by the insured person.” Exhibit F [#26-6]
at 2-3 (emphasis added). Defendant attaches Plaintiff’s entire deposition to the Motion,
and points to one part of it to support the assertion that Plaintiff is not seeking damages for
bodily injuries. Motion [#26] at 9. The excerpt included by Defendant provides:
Q If Allstate found that you were fully compensated for your personal injuries
in this accident with the $50,000 check that you received, do you think that
that was reasonable?
[Plaintiff’s attorney]: Objection to form.
[A] Do I think the $50,000 was reasonable?
[Q] Yes, as related to the personal injuries that you suffered in the accident.
A I’m not making a claim for the 50,000, I’m doing the uninsured for
psychological. I pay a premium for uninsured motorist, and I guess that
covers the additional, from my understanding.
Glenn Dep. 44:2-15 [#26-1] at 12. Defendant argues that this testimony by Plaintiff
demonstrates that he is not seeking damages for any bodily injury. Motion [#26] at 9.
Thus, Defendant’s sole argument is that summary judgment is appropriate because the
relief Plaintiff is seeking – damages for psychological injuries – is not covered by his
UM/UIM policy. Id.
Plaintiff relies on the allegations in the Complaint to argue that it is clear that he is
seeking damages for bodily injury, psychological injury, and property damage. Response
[#28] at 2. The Complaint provides in relevant part:
As a direct and proximate result of Reyes Ortega’s negligence, Plaintiff
suffered severe bodily injuries, including, but not limited to, injuries to her [sic]
neck, head, back, and headaches. . . . Plaintiff has incurred bills for
healthcare and treatment for the reasonable value which is in excess of
$11,000 to date, and will incur additional expenses in the future. . . . Plaintiff
has been caused to suffer, and will suffer, economic and non-economic
injuries and losses, including but not limited to, physical pain and suffering
....
Compl. [#4] ¶¶ 10-12. Plaintiff further asserts that Defendant’s Motion misconstrues the
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premise of the case to be about relief for psychological injuries, when in fact Plaintiff alleges
that he was not fully compensated for all of the injuries stemming from the collision.
Response [#28] at 2. Additionally, Plaintiff contends that Defendant’s argument is frivolous,
but “[e]ven if this Court does not believe this argument is frivolous, there is a question of
fact as to what specific damages the Plaintiff is claiming.” Id. at 4.
Addressing Defendant’s contention that Plaintiff’s testimony demonstrates that he
is only seeking damages for psychological injuries, the Court looks to whether Plaintiff’s
testimony qualifies as a binding judicial admission. “Judicial admissions are ‘formal,
deliberate declarations which a party or his attorney makes in a judicial proceedings for the
purpose of dispensing with proof of formal matters or of facts about which there is no real
dispute.’” Asarco, LLC v. Noranda Mining, Inc., 844 F.3d 1201, 1212 n.3 (10th Cir. 2017)
(quoting U.S. Energy Corp. v. Nukem, Inc., 400 F.3d 822, 833 n.4 (10th Cir. 2005). For a
statement to qualify as a binding judicial admission, it must be “deliberate, clear, and
unequivocal.” Skyline Potato Co. v. Rogers Bros. Farms, Inc., No. 10-cv-02353, 2011 WL
2791531, at *6 (D. Colo. July 15, 2011).
Reading the record in the light most favorable to Plaintiff, his testimony regarding
what relief he is seeking is not unequivocal and thus, does not qualify as a binding
admission. Cf. Martinez v. Bally’s La. Inc., 244 F.3d 474, 475 (5th Cir. 2001) (explaining
that a binding judicial admission was made when plaintiff’s attorney interrupted the
deposition and clearly stated “that [the plaintiff] was not making any kind of physical injury
claims and we’re waiving any physical injury claims”) (internal quotation marks omitted).
Plaintiff’s statements during his deposition do not appear to have been intentionally made
in order to waive all claims of physical injury, in part because the testimony is vague. For
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example, Plaintiff stated that he believed that his policy “covers the additional” and it is
unclear whether the “additional” he refers to is related to his bodily injuries or not. See
Glenn Dep. 44:2-15 [#26-1] at 12. Additionally, other pertinent parts of the deposition do
not foreclose the possibility that Plaintiff intends to seek additional damages for bodily
injuries as well. Plaintiff’s deposition provides:
Q Or I can ask the opposite question. Do you still owe any money related to
medical treatment that you received from this accident?
A No.
Glenn Dep. 43:20-23 [#26-1] at 12. The deposition testimony continues:
Q Other than the money for your truck, is there anything else that you
believe Allstate should have done differently?
A No, we incurred a bunch of medical bills and deductibles that was part of
the accident.
Q And I think I asked earlier. You don’t still owe any money related to those
medical bills; is that right?
A No.
Glenn Dep. 48:2-10 [#26-1] at 13. Plaintiff’s statement that he does not currently owe any
money related to “those” medical bills does not clarify whether he did not “still owe any
money” because his costs were covered by insurance, or whether he no longer owes
money because he paid the bills out-of-pocket. It also remains unclear whether Plaintiff
believes he is owed other damages related to bodily injury. Additionally, Plaintiff appeared
to have been confused by the questions in various parts of the excerpts quoted above.
Based on the evidence presented, Plaintiff’s testimony does not qualify as a binding
admission.
Because it is not evident that Plaintiff modified his claims for relief through his
deposition testimony, the question of what relief Plaintiff is seeking remains a material fact
at issue. See Goodloe v. City and Cty. of Denver, No. 05-cv-02522-EWN-MEH, 2007 WL
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2697605, at *8 (D. Colo. Sept. 11, 2007) (“Plaintiff or his representative having taken
contradictory positions does not, per se, support summary judgment.”) (emphasis in
original); see Marquez v. Baker Process, Inc., No. 01-4019, 2002 WL 1425201, at *5 (10th
Cir. 2002) (“The Plaintiff’s own testimony may, by showing a genuine question of fact as
to a material issue, be sufficient to survive summary judgment.”).
Accordingly, the Court declines to enter summary judgment in favor of Defendant
on Plaintiff’s First and Second Claims.
B.
Claim Three
With respect to Claim Three, Defendant argues that Plaintiff’s statutory claim of
unreasonable delay and improper denial of benefits under Colo. Rev. Stat. § 10-3-1115
fails because Plaintiff was fully compensated by the $50,000 that he received from
American Family. Motion [#26] at 10.
Under Colo. Rev. Stat. § 10-3-1115(1)(a), an insurer may not “unreasonably delay
or deny payment of a claim for benefits owed to or on behalf of any first-party claimant.”
The statute further provides that “an insurer’s delay or denial was unreasonable if the
insurer delayed or denied authorizing payment of a covered benefit without a reasonable
basis for that action.” Colo. Rev. Stat. § 10-3-1115(2). Under Colorado law, it may be
reasonable for an insurer to challenge a claim when there is a genuine dispute about the
amount of compensable damages associated with the claim. Chateau Village N. Condo.
Ass’n v. Am. Family Mut. Ins., 170 F. Supp. 3d 1349, 1360 (D. Colo. 2016) (citing Vaccaro
v. Am. Family Ins. Grp., 275 P.3d 750, 759 (Colo. App. 2012). Whether an insurer’s
conduct was reasonable under the circumstances is generally a question of fact for the jury
when conflicting evidence is presented. Zolman v. Pinnacol Assurance, 261 P.3d 490, 497
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(Colo. App. 2011); Dennis v. Am. Family Mut. Ins. Co., No. 15-cv-02562, 2017 WL
4297342, slip op. at *3 (D. Colo. Sept. 27, 2017).
Defendant asserts that because Plaintiff received $50,000 from American Family
and his alleged medical bills totaled $10,876.40, there are no additional benefits due under
his UI/UIM policy. Motion [#26] at 10. In response, Plaintiff contends that at the time
Defendant made the offer for $13,000, he was still negotiating with American Family and
that Defendant “unreasonably pulled [its] offer and decided Plaintiff was fully compensated”
when it was informed about the American Family settlement. Response [#28] at 5. Plaintiff
further asserts that whether or not he was fully compensated by the $50,000 and whether
Defendant acted reasonably in denying him benefits is a question of fact for a jury. Id. at
5-6.
Plaintiff appears to argue that Defendant acted unreasonably when it withdrew its
settlement offer and declined to pay him additional benefits on the grounds that it believed
that Plaintiff was fully compensated by the $50,000 payment. The reasonableness of the
conduct at issue – revoking the settlement offer and refusing to pay – turns on the question
of whether or not Plaintiff was fully compensated. Whether Plaintiff was or was not fully
compensated for his injuries is a question of fact. See MacKinney v. Allstate Fire &
Casualty Ins. Co., No. 16-cv-01447-NYW, 2017 WL 3397361, slip op. at *7 (D. Colo. Aug.
8, 2017) (declining to enter summary judgment in favor of the defendant on the plaintiff’s
statutory bad faith claim because the reasonableness of the defendant’s conduct was for
a jury, not the court, to decide). As discussed above, it remains at issue whether Plaintiff
is entitled to compensation under his UM/UIM policy. However, viewing the evidence in the
light most favorable to Plaintiff, a reasonable jury may find in his favor and therefore, his
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statutory claim must proceed to trial. See Rivera v. State Farm Mut. Auto. Ins. Co., No. 16cv-00227, 2017 WL 4012134, slip op. at *5 (D. Colo. Sept. 12, 2017) (declining to enter
summary judgment in favor of defendant because a jury could interpret the conflicting
evidence presented in favor of either party at trial). Accordingly, the Court declines to enter
summary judgment in favor of Defendant on Plaintiff’s Third Claim.
IV. Conclusion
For the foregoing reasons,
IT IS HEREBY ORDERED that the Motion [#26] is DENIED.
Dated: October 19, 2017
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