Johnson et al v. American National Property and Casualty Companies

Filing 39

ORDER granting 29 Defendant American National's Motion for Summary Judgment. Entered by Judge William J. Martinez on 2/6/2019. (afran)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 17-cv-2218-WJM-KMT
TYRONE JOHNSON, and
MICHELLE JOHNSON,
Plaintiffs,
v.
AMERICAN NATIONAL PROPERTY AND CASUALTY COMPANIES, a/k/a ANPAC,
Defendant.

ORDER GRANTING SUMMARY JUDGMENT

In this insurance action, Plaintiffs Dr. Tyrone Johnson and Michelle Johnson
(collectively, “Plaintiffs”) bring a breach of contract claim seeking payment of
underinsured motorist (“UIM”) insurance benefits under a policy issued by Defendant
American National Property & Casualty Companies (“American National”), as well as a
common law bad faith breach of insurance contract claim and a statutory claim for
unreasonable delay or denial of insurance benefits under Colorado Revised Statutes
§§ 10-3-1115 & -1116. Dr. Johnson alleges that he was injured in a car accident, and
Ms. Johnson brings a corresponding loss of consortium claim. Before the Court is
American National’s Motion for Summary Judgment (the “Motion”). (ECF No. 29.) For
the reasons explained below, the Court grants the Motion.
I. LEGAL STANDARD
Summary judgment is warranted under Federal Rule of Civil Procedure 56 “if the
movant shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248–50 (1986). A fact is “material” if, under the
relevant substantive law, it is essential to proper disposition of the claim. Wright v.
Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001). An issue is “g enuine” if
the evidence is such that it might lead a reasonable trier of fact to return a verdict for
the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).
In analyzing a motion for summary judgment, a court must view the evidence
and all reasonable inferences therefrom in the light most favorable to the nonmoving
party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
In addition, the Court must resolve factual ambiguities against the moving party, thus
favoring the right to a trial. See Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th
Cir. 1987).
Where, as here, “the moving party does not bear the ultimate burden of
persuasion at trial, it may satisfy its burden on a motion for summary judgment by
identifying a lack of evidence for the nonmovant on an essential element of the
nonmovant’s claim.” Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th
Cir. 2001) (internal quotation marks omitted). If the movant meets this burden, the
burden shifts to the nonmovant “to go beyond the pleadings and set forth specific facts
that would be admissible in evidence in the event of trial from which a rational trier of
fact could find for the nonmovant.” Adler, 144 F.3d at 671 (internal quotation marks
omitted). A party must support an assertion that a fact is genuinely disputed by “citing

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to particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations, . . . admissions,
interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A).
“[C]onclusory and self-serving statements are insufficient to survive summary
judgment.” Ford v. West, 222 F.3d 767, 777 (10th Cir. 2000). Likewise, “general
denials, or mere argument of an opposing party’s case cannot be utilized to avoid
summary judgment,” Pasternak v. Lear Petroleum Expl., Inc., 790 F.2d 828, 834 (10th
Cir. 1986), and “[v]ague, conclusory statements do not suffice to create a genuine issue
of material fact,” Ford, 222. F.3d at 777. Rather, “[t]o survive summary judgment, a
nonmoving party must set forth specific facts showing that there is a genuine issue for
trial as to those dispositive matters for which he carries the burden of proof.” Christy v.
Travelers Indem. Co. of Am., 810 F.3d 1220, 1233 (10th Cir. 2016) (interna l quotation
marks omitted). Moreover, this Court is not obliged to “comb the record” to identify
factual disputes or make a party’s case for it. Ford, 222 F.3d at 777. Rather, “on a
motion for summary judgment, it is the responding party’s burden to ensure that the
factual dispute is portrayed with particularity, without depending on the trial court to
conduct its own search of the record.” Cross v. The Home Depot, 390 F.3d 1283, 1290
(10th Cir. 2004) (internal quotation marks omitted) (emphasis added).
II. BACKGROUND
The majority of the facts as presented by American National in the summary
judgment briefing are undisputed. Plaintiffs do not present additional facts in their
response brief. (ECF No. 32 at 6–7.)

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Dr. Johnson was involved in a slip-and-fall in his bathroom on April 18, 2012, and
suffered a concussion and traumatic brain injury. (ECF No. 29-20 at 1.) 1 Though not
explicitly set forth in the facts section by either party, Dr. Johnson’s prior injury is
relevant to the parties’ dispute.
On February 6, 2014, Dr. Johnson was in a car accident with “the underlying
tortfeasor,” David Hurley. (ECF No. 33 at 2, ¶ A.) Ms. Johnson was not involved. (Id.)
Dr. Johnson claims that he sustained injuries from the accident resulting in pain,
suffering, permanent impairment, lost wages, and a loss of earning capacity due to his
inability to continue his work as a chiropractor. (Id.; see ECF No. 5 ¶ 7.) Ms. Johnson
claims loss of consortium due to Dr. Johnson’s injuries. (ECF No. 33 at 2, ¶ A.)
Dr. Johnson sought and received $100,000 in compensation from Hurley, the
policy limits of Hurley’s insurance carrier, on June 23, 2016. (Id. ¶ B.) Ms. Johnson did
not seek loss of consortium from Hurley. (Id.) American National granted consent to
settle with the Hurley’s insurance company. (Id. ¶ E.)
On June 30, 2016, Dr. Johnson notified American National of his claim for UIM
benefits under a policy he maintained with American National, and American National
acknowledged receipt of the claim. (Id. at 3, ¶¶ C, E.) Dr. Johnson’s claim letter asked
American National to “review Dr. Johnson’s file,” but did not include a specific monetary
demand. (Id. ¶ D.)
Dr. Johnson’s policy contained the following provision for UIM coverage:
We will pay damages for bodily injury which an insured
1

Citations to docketed materials are to the page number in the CM/ECF header rather
than to any internal pagination.

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person is legally entitled to recover from the owner or
operator of an uninsured or underinsured motor vehicle.
The bodily injury must be caused by an accident and result
from the ownership, maintenance, or use of the uninsured
or underinsured motor vehicle.
Determination whether an insured person is legally entitled
to recover damages or the amount of damages shall be
made by agreement between the insured person and us.
(ECF No. 29-25 at 12 (emphasis in original); ECF No. 29 at 14.) 2
On July 20, 2016, Plaintiffs submitted medical records for Dr. Johnson for
American National’s consideration “as part of Dr. Johnson’s settlement discussions.”
(Id. ¶ F.) The next day, Tanya Zaffuto, an American National insurance adjuster,
contacted Plaintiffs’ counsel regarding Dr. Johnson’s claim. (Id. at 4, ¶ G.) She
informed counsel that an independent evaluation may be needed to apportion the injury
from the impact of the car accident as compared to Dr. Johnson’s “fall in the tub”
several years prior. (Id.; see ECF No. 29-4.) Zaffuto informed counsel that she “was
going to extend an offer of $10k in good faith on this one,” and sent a letter confirming
the $10,000 offer. (ECF No. 33 at 4, ¶ G; see ECF No. 29-5 at 1.)
In August 2016, American National requested that Dr. Johnson attend an
“independent neuropsychological evaluation” with Dr. Jennifer Geiger, as well as
provide additional medical records and financial information. (ECF No. 33 at 4–5, ¶ H.)
American National again requested the missing medical and financial records in
November 2016. (Id. at 5–6, ¶ I.)

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American National includes this language in the argument section of its brief, not the
statement of facts. Despite this irregularity, Plaintiffs do not dispute that this language is the
proper wording of their policy with American National.

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Dr. Johnson saw Dr. Geiger on October 11, 2016. (Id.) Her report concluded
that it was improbable that Dr. Johnson sustained a concussion in the February 2014
accident and that Dr. Johnson did not sustain any permanent impairment as a result of
the car accident. (Id.)
Plaintiffs submit a October 21, 2014 report from Dr. Brad Gulla, “a chiropractic
specialist providing treatment to” Dr. Johnson, apportioning 70% of his treatment of Dr.
Johnson to the car accident and 30% to the April 2012 f all. (ECF No. 32 at 6–7; ECF
No. 32-1 at 1.) The circumstances of this report are unclear because Plaintiffs only
reference this report in the argument section of their response opposing the Motion;
they do not include it in a statement of facts, and as a consequence American National
did not admit or deny the related factual allegations. See WJM Revised Practice
Standards II.D.5 & 6.
In December 2016, per American National’s repeated requests, Plaintiffs
provided a list of Dr. Johnson’s medical providers as well as Dr. Johnson’s tax returns
for 2011, 2012, 2013, and 2014. (Id. at 7, ¶¶ J–K.) Plaintiffs also submitted a report
from Dr. Anthony Ricci “for further consideration.” (Id. ¶ L.) American National then
requested that Plaintiffs provide the raw data on which Dr. Ricci relied, which Plaintiffs
then supplied. (Id.) American National states that it asked for the raw data so that Dr.
Geiger could review it and update her report. (Id.) In February 2017, American
National provided to Plaintiffs an addendum report from Dr. Geiger. (Id. at 8, ¶ M.)
Also in February 2017, American National asked Plaintiffs to their confirm the
total claimed medical expenses and calculations of lost wages and loss of earning

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capacity or loss of business. (Id. ¶ N.) Plaintiffs provided reports from Dr. Helffenstein
and Dr. Stockdale, as well as a statement from Ms. Johnson “regarding the effects of
the collision on Dr. Johnson.” American National states that they forwarded this new
information to Dr. Geiger. (Id. ¶ O.)
On February 16, 2017, Dr. Geiger issued a second addendum report which
confirmed her conclusion that it was improbable that Dr. Johnson sustained a
concussion as a result of the February 2014 accident and that her opinions in her initial
November 2016 report remained unchanged. (Id. at 9–10, ¶ Q.)
Also on February 16, 2017, Plaintiffs notified American National of Ms.
Johnson’s loss of consortium claim. (Id. at 9, ¶ P.) In response, American National
requested any and all evidence supporting Ms. Johnson’s claim. (Id.)
On April 10, 2017, Plaintiffs submitted a demand under their underinsured
motorist policy for the policy limit of $250,000, including an economic loss demand for
Dr. Johnson for $1.2 million. Plaintiffs contend that the economic loss demand was
appropriate because Dr. Johnson was unable to continue his chiropractic business or a
start-up boutique after the car accident. (Id. at 10, ¶ R.) A month later, Plaintiffs
provided a vocation rehabilitation report from Michael Fitzgibbons regarding Dr.
Johnson’s loss of future earning potential. (Id. ¶ S.)
American National states that it then retained Gregory Taylor and Kyle Jacobsen
as forensic economists to opine on Dr. Johnson’s potential economic losses, and to
focus in particular on Dr. Johnson’s earnings because he had closed his chiropractic
business in December 2013, three months prior to the car accident. (Id. at 10–11, ¶ T.)

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Jacobsen’s economic report stated that it was “highly questionable whether [Dr.
Johnson] would have or could have re-opened a profitable practice” after closing his
practice in December 2013 and that it was “completely speculative to assume that Dr.
Johnson would have opened a small practice and earn[ed] revenues of approximately
$50,000 per year.” (ECF No. 29-20 at 10–11.) Jacobsen also requested to interview
Dr. Johnson and asked for additional financial information. (Id. at 11, 16–17.)
On June 6, 2017, the parties attended m ediation. (ECF No. 33 at 11, ¶ U.)
American National increased its settlement offer to $20,000. (Id. ¶ V.) Plaintiffs
rejected this offer. (Id.) Two days later, American National requested additional
information to support Plaintiffs’ economic loss claim. (Id. ¶ W.) Plaintiffs did not
respond to this letter and American National again requested this information in August
2017. (Id. ¶ X.) American National maintains that Dr. Johnson’s physical injuries and
economic loss are related to his April 2012 slip-and-fall or other pre-existing conditions,
not the result of the accident. (Id. at 12, ¶ AA.)
Plaintiffs filed the instant action on August 18, 2017 in state court. (ECF No. 5.)
American National removed the action to this Court based on the diversity of the parties
and the amount in controversy. (ECF No. 1.)
III. ANALYSIS
A.

Breach of Contract
“It has long been the law in Colorado that a party attempting to recover on a

claim for breach of contract must prove the following elements: (1) the existence of a
contract; (2) performance by the plaintiff or some justification for nonperformance;

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(3) failure to perform the contract by the defendant; and (4) resulting damages to the
plaintiff.” W. Distrib. Co. v. Diodosio, 841 P.2d 1053, 1058 (Colo. 1992) (internal
citations omitted).
American National contends that it did not fail to perform the contract because its
performance was not due under the terms of the contract. American National argues
that Plaintiffs present “no evidence that they are ‘legally entitled’” to UIM benefits under
their policy because they have not shown that their injuries and damages were either
caused by the car accident or resulted from ownership, maintenance, and use of the
motor vehicle. (ECF No. 29 at 14.) American National also suggests that evidence
supports a conclusion that all injuries and damages were pre-existing or resulted from
Dr. Johnson’s fall in 2012, undermining Plaintiffs’ claim for damages resulting from any
alleged breach of contract.
Brief as it is, American National’s argument triggers for Plaintiffs an obligation to
set forth “specific facts that would be admissible in evidence in the event of a trial from
which a rational trier of fact could find for” Plaintiffs because Plaintiffs will bear the
burden of proof at trial. See Adler, 144 F.3d at 671 (“[A] movant may make its prima
facie demonstration simply by pointing out to the court a lack of evidence for the
nonmovant on an essential element.”). In response, Plaintiffs must “go beyond the
pleadings and set forth specific facts,” id., “by citing to particular parts of materials in the
record,” Fed. R. Civ. P. 56(c)(1)(A).
Despite this burden, Plaintiffs fail to cite to particular parts of the record that
would allow a rational fact finder to find in their favor. Instead, Plaintiffs merely rely on
conclusory statements that there is evidence available, without ever identifying the
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specific evidence. (ECF No. 32 at 5–6.) For example, Plaintiffs state that they have
“presented plenty of evidence to the Defendant to support the claim for Underinsured
Motorist Benefits” and “provided the Defendant . . . with multiple reports from various
experts as referenced in” ECF Nos. 29-18 and 29-19. (Id.) The two documents cited
by Plaintiffs in support of these contentions are a April 2017 demand letter (which
references various doctors’ reports) and a cover letter from Plaintiffs’ counsel to
American National providing a report for a vocational expert. However, Plaintiffs do not
put forth what facts in those underlying reports they would rely on at trial, they fail cite to
specific portions of the underlying reports, nor did they even provide those reports to
the Court for consideration and review.
Plaintiffs further assert that “these experts” referenced in the two letters “include
multiple medical professionals, vocational rehabilitation experts[,] and specialists in
neuropsychology who have established that the injuries suffered by the Plaintiff exceed
the amount of Underinsured Motorist Coverage.” (Id. at 6.) However, Plaintiffs never
establish who these experts are or if they have been disclosed as testifying experts, nor
have they set forth the specific facts and opinions that these experts would provide at
trial in support of Plaintiffs’ claims. Nor is this Court under any obligation “to comb the
record” of possible facts and evidence in order to make Plaintiffs’ case for them. See
Adler, 144 F.3d at 672; Ford, 222 F.3d at 777. These conclusory statements put forth
by Plaintiffs, without more, are simply insufficient as a matter of law to establish
genuine issues of material fact with regard to their claims.
The closest Plaintiffs come to establishing a specific fact admissible at trial to
support Dr. Johnson’s breach of contract claim is citing the report of Dr. Gulla, which
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stated that 70% of his treatment of Dr. Johnson could be apportioned to the car
accident. (Id. at 6.) However, Plaintiffs failed to identify Dr. Gulla as a lay or expert
witness that they would potentially call at trial in the Amended Final Pretrial Order.
(ECF No. 37 at 6–10.) It is thus unclear to the Court how Dr. Gulla’s statements would
be admissible at trial. Moreover, this single factual allegation alone, even were it
admissible at trial, without more, cannot support a conclusion that there are genuinely
disputed material facts such that the case should go to a jury. See Argo v. Blue Cross
& Blue Shield of Kansas, Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) (“To determine
whether genuine issues of material fact make a jury trial necessary, a court necessarily
may consider only the evidence that would be available to the jury.”).
Exacerbating the problematic posture in which their legally deficient summary
judgment response has placed them, Plaintiffs also make no effort to explain how Ms.
Johnson’s injuries and damages were caused by the car accident, or how they resulted
from the ownership, maintenance, and use of the insured vehicle. Absent any evidence
of material facts supporting Ms. Johnson’s claim, Plaintiffs have plainly failed to carry
their burden on summary judgment on her loss of consortium claim as well.
In sum, the “facts” presented by Plaintiffs in opposition to summary judgment are
only vague and conclusory statements that do not suffice to create a genuine issue of
material fact in the context of Rule 56. See Pasternak, 790 F.2d at 834; Ford, 222.
F.3d at 777. The Court finds that Plaintiffs have failed to carry their burden to show a
genuine dispute of material facts, or evidence that would support such a dispute.
Accordingly, the Court grants the Motion on the breach of contract claim.

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B.

Common Law and Statutory Bad Faith Breach of Insurance Contract
Plaintiffs also claim that American National is liable for common law and

statutory bad faith breach of an insurance contract. Colorado recognizes a common
law tort of bad faith breach of insurance contract as well as a statutory claim for
unreasonable delay or denial of insurance benefits. Baker v. Allied Prop. & Cas. Ins.
Co., 939 F. Supp. 2d 1091, 1107 (D. Colo. 2013). Both com mon law and statutory bad
faith claims are predicated on the insurer unreasonably delaying or denying benefits.
Id. As discussed above, Plaintiffs have failed to carry their burden at summary
judgment to demonstrate that American National owed benefits to them and as a result
breached the insurance contract between them. Because these bad faith claims are
derivative of Plaintiffs’ failed breach of contract claim, they also cannot survive
American National’s Motion. Accordingly, the Court also grants the Motion on Plaintiffs’
common law and statutory bad faith claims.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Defendant American National’s Motion for Summary Judgment (ECF No. 29) is
GRANTED as to all claims;

2.

The Jury Trial set to commence on April 15, 2019, and the Final Trial
Preparation Conference set for March 29, 2019, are both hereby VACATED;

3.

Judgment shall enter in favor of Defendant, and Defendant shall have their
costs; and

4.

The Clerk shall terminate this action.

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Dated this 6th day of February, 2019.
BY THE COURT:

William J. Martínez
United States District Judge

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