Cope v. Auto-Owners Insurance Company

Filing 389

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR COMPLETE SUMMARY JUDGMENT. The Court ORDERS as follows: 1. Defendant's Motion (ECF No. 337 ) is GRANTED IN PART and DENIED IN PART as set forth herein; and 2. This case remains SET for a Final Trial Preparation Conference on July 8, 2024 and a nine-day jury trial to begin on July 22, 2024 (ECF No. 367 ) SO ORDERED by Judge William J. Martinez on 12/12/2023. (jrobe, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 18-cv-0051-WJM-SKC
TODD COPE,
Plaintiff,
v.
AUTO-OWNERS INSURANCE COMPANY,
Defendant.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR COMPLETE SUMMARY JUDGMENT
Before the Court is Defendant Auto-Owners Insurance Company’s Motion for
Complete Summary Judgment (“Motion”). (ECF No. 337.) Plaintiff Todd Cope filed a
response. (ECF No. 352.) Defendant filed a reply (ECF No. 383) and a notice of
supplemental authorities 1 (ECF No. 375). For the following reasons, the Motion is
granted in part and denied in part.
I. STANDARD OF REVIEW
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.
In this notice, Defendant explains that in the Motion, it asserted arguments relying on
an order that has since been reversed by the Tenth Circuit. See Ward v. Acuity, 2023 WL
4117502 (10th Cir. 2023). In light of the Tenth Circuit’s opinion, Defendant states that it
withdraws its arguments in Section III (ECF No. 337 at 21–22) of its Motion. (ECF No. 375 at
1.) Based on Defendant’s notice, the Court deems the arguments in Section III of the Motion
withdrawn and considers them no further in this Order.
1

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 “genuine” 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. 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).
II. MATERIAL FACTS 2
A.

Applicable Insurance Policy Provisions
Defendant issued policy number 47-026-539-02, effective November 3, 2013, to

November 3, 2014, to Rocky’s Auto, Inc. (“Policy”). The Policy provides in relevant part:
UNINSURED MOTORIST COVERAGE
***
2. COVERAGE
a. We will pay compensatory damages, including but not
limited to loss of consortium, any person is legally entitled to
recover from the owner or operator of an uninsured
automobile because of bodily injury sustained by an
injured person while occupying an auto that is covered by
The following factual summary is based on the parties’ briefs on the Motion and
documents submitted in support thereof. These facts are undisputed unless attributed to a party
or source. All citations to docketed materials are to the page number in the CM/ECF header,
which sometimes differs from a document’s internal pagination.
2

2

SECTION II – LIABILITY COVERAGE of the policy.
The Policy also provides: “Whether an injured person is legally entitled to recover
damages and the amount of such damages shall be determined by an agreement
between the injured person and us.” The Policy’s limits for uninsured/underinsured
motorist (“UIM”) coverage is $1 million. The Policy provides that “any person making a
[UIM] claim must . . . [s]ubmit to examinations by physicians we select as often as we
require[.]”
B.

Plaintiff’s and the Merritts’ Demand for Defendant’s $1 Million UIM Limit
On November 6, 2013, Plaintiff was involved in a car accident with Jack Landgraf

while he was working as a car salesman at Rocky’s Auto (“Accident”). Kenneth and
Christy Merritt were passengers in the vehicle. Plaintiff received workers compensation
benefits related to the Accident.
Landgraf’s auto liability insurance policy with Hartford Underwriters Insurance
Company had limits of $250,000 per person and $500,000 per accident. Landgraf also
had a personal umbrella liability policy with $1 million limits for each occurrence.
Defendant states that the total amount of liability insurance available to Plaintiff for
bodily injury sustained during the Accident was $1.25 million. (ECF No. 337 at 4 ¶ 8.)
Plaintiff admits Defendant’s factual allegations regarding the limits of Landgraf’s liability
insurance but he conceptually disputes the allegation that $1.25 million was the amount
available to him for bodily injury. (ECF No. 352 at 3 ¶ 8.) Instead, Plaintiff states that
Landgraf’s liability coverage insures Landgraf, not Plaintiff. (Id.) According to Plaintiff,
Landgraf possessed a total of $1.5 million to cover his liability for all injuries arising out
of the occurrence, of which no more than $1.25 million was available to cover his liability
to Plaintiff.
3

On July 28, 2017, Plaintiff and the Merritts globally settled their claims arising out
of the Accident against Landgraf for $1.4 million—$100,000 less than the $1.5 million in
underlying liability limits available for the Accident.
On July 31, 2017, Plaintiff and the Merritts submitted a collective demand for the
Policy’s UIM limit of $1 million. As of that date, neither Plaintiff nor the Merritts had
informed Defendant whether the global settlement had been divided among the three
claimants, and if so, how much each claimant had received individually.
C.

Defendant Adjusts and Investigates the UIM Claims
On August 3, 2017, Defendant requested documentation to assess Plaintiff’s and

the Merritts’ claims, including all pleadings, disclosures, all expert reports, and other
discovery from the personal injury lawsuit against Landgraf, pre- and post-accident
medical records, medical bills, employment and tax records, proof of Landgraf’s liability,
and any other documents supporting their UIM claims.
Defendant learned that over two years before the accident, Plaintiff fell through a
flight of stairs. After the fall, Plaintiff had low back pain that radiated down his
extremities. Plaintiff underwent a lumbar spine MRI in May 2011 that revealed a “disc
protrusion at L3-4 vertebral level” and “disc bulges at L4-5 and L5-S1 levels.”
Two years later in 2013, Plaintiff was still being treated for low back and right leg
pain he attributed to the 2011 fall. His records stated he had “acute on chronic back
pain” and “severe back and radiating pain,” and that he had a “flare-up” of his back pain
in February 2013. Plaintiff was treating his low back pain with physical therapy only
days before the Accident. Plaintiff claims that his low back pain after the Accident, his
herniated disc at L5-S1, and his two lumbar surgeries, along with other miscellaneous
treatment, were related to the Accident.
4

On September 15, 2017, Defendant notified Plaintiff and the Merritts’ counsel
that it intended to hire experts to provide opinions for the claim, including “a spinal
surgeon to evaluate Plaintiff’s claims re causation, apportionment, pre-accident
conditions, and future treatment needs,” an expert to assess Plaintiff’s functional
capacity, an expert to evaluate Plaintiff’s life care plan, and multiple experts to evaluate
the Merritts’ claimed injuries.
On September 20, 2017, Plaintiff asked Defendant to “confirm” that the physical
examination by a spine surgeon would be “the only physical exam Auto Owners
Insurance will require of Mr. Cope” and setting forth additional parameters on the
examination. On September 29, 2017, Plaintiff asked Defendant to “reevaluate” its
decision to “require” him to undergo physical examinations.
Defendant retained spine surgeon Dr. Brian Reiss to perform an independent
medical examination (“IME”) and Os Baldessari to perform a functional capacity
evaluation (“FCE”) of Plaintiff. Dr. Reiss is a board-certified orthopedic spine surgeon
with over 30 years of experience. Defendant notified Plaintiff’s counsel of Dr. Reiss’s
and Baldessari’s availability to conduct the examinations on October 17, 2017. Dr.
Reiss’s first availability for an examination was December 20, 2017. On October 31,
2017, Plaintiff continued to attempt to place parameters on the examinations and
Defendant’s examination requests.
D.

Plaintiff Sues Defendant
On November 14, 2017, while Defendant was still investigating Plaintiff’s and the

Merritts’ UIM claims, Plaintiff sued Defendant for statutory insurance bad faith and
breach of contract. Further, when Plaintiff sued Defendant, neither Plaintiff nor the
Merritts had informed Defendant if and how the three claimants had divided the $1.4
5

million in liability benefits received.
Plaintiff underwent an IME with Dr. Reiss on January 24, 2018 and a FCE with
Baldessari on December 4, 2017. Baldessari’s December 8, 2017 report found that
Plaintiff was performing near his functional capacity.
On March 6, 2018, Dr. Reiss issued an IME report in which he opined that
Plaintiff’s low back and right lower extremity conditions were not caused by the
Accident. Dr. Reiss also found that the two back surgeries Plaintiff underwent in 2014
and 2015 were not related to the Accident and were “secondary only to his pre-existing
condition.” Dr. Reiss found that Plaintiff suffered a cervical strain from the Accident and
did not require further treatment.
Dr. Allison Fall performed an IME on Plaintiff on April 20, 2017 during the
underlying personal injury action against Landgraf. Dr. Fall is board-certified in physical
medicine and rehabilitation, holds a Level II accreditation with Colorado’s Division of
Workers Compensation, and obtained Bachelor of Science degrees in biomedical
engineering and mathematics prior to obtaining her medical degree. Dr. Fall found that
Plaintiff’s “disc extrusion likely was not a result of the” Accident given the “mechanism of
injury with him being rear-ended,” that there was “no forward flexion movement at the
lumbar spine” and “no immediate complaints of acute lumbar pain nor acute findings
consistent with S1 radiculopathy.”
On April 18, 2018, the Merritts and Plaintiff notified Defendant for the first time
that they were dividing the $1.4 million equally and that they would each be receiving
$466,666.67. Plaintiff agreed to divide the settlement equally among himself and the
Merritts because “it was the easiest way to do it.”

6

E.

Defendant Determines that Plaintiff’s and the Merritts’ Accident-Related
Damages Do Not Exceed Landgraf’s Liability Limits
On May 8, 2018, Defendant sent correspondence to Plaintiff informing him that

based on the information then available, the expert opinions provided, and a survey of
relevant jury verdict reports, Defendant concluded that Plaintiff’s
Accident-related damages did not exceed the limit of Landgraf’s liability insurance.
When Defendant sent this correspondence, it was still awaiting a supplemental report
from Dr. Reiss based on recently acquired images.
That same day, Defendant sent correspondence to the Merritts informing them
that based on the information available, the expert opinions provided, and a survey of
relevant jury verdict reports, Defendant concluded that the Merritts’ accident-related
damages did not exceed the limit of Landgraf’s liability insurance.
Although the Merritts filed suit against Defendant in August 2018, they have
since voluntarily dismissed their claims against Auto-Owners with prejudice and without
receiving any UIM benefits or compensation otherwise from Defendant.
At the time Plaintiff settled his workers compensation claim related to the
Accident, the total amount allowed and paid for by the workers compensation insurer for
his medical treatment pursuant to the schedule approved by the Director of the Workers’
Compensation Division was $121,602.48. The total amount billed was $316,832.63.
To date, Plaintiff’s past medical costs he claims are related to the Accident total
$337,817.16 and include all treatment costs paid during the workers compensation
claim. The cost of Plaintiff’s medical treatment not included as part of his workers
compensation claim totals $20,984.53.
On June 29, 2018, Plaintiff’s life care planning expert Aubrey Corwin opined that

7

he would need approximately $1.4 to $1.7 million to pay for future medical care. Since
June 2018, according to Plaintiff, he has incurred only $6,219.68 in Accident-related
medical treatment. He has attended only two medical appointments for what he claims
is Accident-related care in the last two years. As of January 2023, Plaintiff had not seen
any doctor for allegedly Accident-related care since January 2022 and was only taking
ibuprofen.
In May 2021, Plaintiff disclosed a new life care plan from Corwin opining that he
would need $419,000 to $581,000 to pay for future medical care.
Plaintiff last saw his spine surgeon Dr. Bryan Castro over four years ago in
December 2018. Plaintiff has not treated with any spine surgeon other than Dr. Castro.
Defendant states that no spine surgeon has opined that it is more likely than not
that Cope will require another lumbar spine surgery because of injuries sustained during
the Accident. (ECF No. 337 at 10 ¶ 40.) Plaintiff disputes this characterization,
responding that Dr. Castro and Dr. Roberta Anderson-Oeser have opined that while his
disc herniation is now stable, it is unlikely to get better and is still causing pain
symptoms. (ECF No. 352 at 6 ¶ 40.) Further, Plaintiff responds that under these
circumstances, the need for further surgery is dependent on maintaining the stability of
the disc. (Id.) He also states that Dr. Anderson-Oeser testified that further protrusion of
the L5-S1 would likely require fusion surgery, and Dr. Castro admitted that such surgery
was not necessarily indicated currently based on the condition of the disc and Plaintiff’s
ability to manage his symptoms. (Id.)
In August 2018, Plaintiff and his wife purchased a 40-acre horse ranch in Calhan,
Colorado. At his ranch, Plaintiff has fifteen dogs, five cats, three miniature horses, two

8

standard horses, and a water buffalo. Defendant states that Plaintiff actively takes care
of the animals on the ranch. (ECF No. 337 at 10 ¶ 41.) Plaintiff admits that he
purchased the ranch and agrees with the number of animals thereon, but he states that
he is limited in what he can do with respect to taking care of the animals because of his
lower back pain and limitations. (ECF No. 352 at 6 ¶ 41.) Plaintiff is also able to
complete activities of daily living including cooking, laundry, mopping, and cleaning the
bathroom and kitchen.
Plaintiff also continues to work 40 hours per week as a security guard. Further,
from June 2019 to June 2022, Plaintiff worked at Allied Security Services at RTD bus
stations in downtown Denver. During that time, he consistently commuted
approximately 1,000 miles per week to work.
In January 2023, Plaintiff admitted the money he obtained with his settlement
with Landgraf was now “gone.” He spent part of it on his ranch and the rest of it on
living expenses.
On May 9, 2019, Plaintiff filed his Second Amended Complaint (“SAC”), bringing
claims against Defendant for breach of insurance contract, bad faith breach of
insurance contract, and violation of Colorado Revised Statutes §§ 10-3-1115(1)(A) and
10-3-1116(1). (ECF No. 99.)
III. ANALYSIS
A.

Medical Causation and Reasonableness of Medical Bills
Defendant argues that Plaintiff has no admissible expert evidence to establish

medical causation or the reasonableness and necessity of his medical bills, and thus his
UIM claim fails as a matter of law. (ECF No. 337 at 11–16.)
Defendant’s argument primarily depends on the Court precluding Dr. Castro and
9

Dr. Anderson-Oeser, Plaintiff’s non-retained treating physicians, from offering causation
opinions at trial. In its Order Granting in Part and Denying In Part Defendant’s omnibus
Motion to Exclude Opinions of Certain of Plaintiff’s Expert Witnesses (“Order on
Defendant’s Rule 702”), the Court did just that. (ECF No. 387 at 5–10.)
However, in Plaintiff’s response, he states that Dr. Mark Paz, his retained expert
witness who treated Plaintiff for lower back injuries sustained in the stair fall in 2011, will
testify that Plaintiff’s “symptoms and objective findings were qualitatively and
quantitatively worse after the collision, and that the most likely cause of the L5-S1 disk
protrusion and nerve impingement is the November 6, 2013 collision.” (ECF No. 352 at
7–8.) Further, Plaintiff explains that “Dr. Paz’s report includes specific information,
including his personal knowledge, supporting his opinion that Mr. Cope’s post
November 6, 2013 lumbar symptoms were significantly worse and different than what
he was experiencing in the aftermath of his November 2011 fall.” (Id. at 11; ECF No.
352-8.)
In its reply, Defendant argues that Dr. Paz’s proposed medical causation
testimony is insufficient because it is “based only on MRI imaging and temporality of
Cope’s symptoms, making it unreliable.” (ECF No. 383 at 8.) Additionally, Defendant
argues that because Dr. Paz is not a spine surgeon, he is not qualified to give opinions
about the necessity or causality of spine surgeries.” (Id. at 8–9.)
The Court concludes that as a retained expert who has offered causation
opinions in his “Medical Record Review Rebuttal,” Dr. Paz may offer such opinions at
trial. The Court has considered Defendant’s argument that Dr. Paz is not a spine
surgeon and is potentially unqualified to give opinions concerning spine surgeries but

10

concludes that such arguments go to the weight, rather than the admissibility, of his
opinions. 3 Defendant is free to cross examine Dr. Paz on such issues at trial. 4
Therefore, because Plaintiff has demonstrated that he has sufficient evidence to
withstand Defendant’s challenge to his causation evidence, the Court denies this portion
of the Motion. 5

The Court also notes that these arguments were offered for the first time in Defendant’s
reply, are poorly developed, and are more appropriately raised in a Rule 702 motion. Thus, the
Court considers these additional reasons to allow Dr. Paz’s testimony and deny this portion of
the Motion.
3

Plaintiff also states that Dr. Dave Hnida will present testimony “demonstrating a causal
link between the November 2013 motor vehicle collision and [Plaintiff’s] claimed injuries.” (ECF
No. 352 at 16.) In its reply, Defendant explains that like Dr. Castro and Dr. Anderson-Oeser, Dr.
Hnida is a non-retained, treating physician who did not disclose a Rule 26 expert report. (ECF
No. 383 at 7–8.) Accordingly, for the same reasons as explained in the Order on Defendant’s
Rule 702 (ECF No. 387 at 5–10), the Court precludes Dr. Hnida from offering causation
opinions at trial.
4

To the extent Defendant argues that Plaintiff’s failure to offer expert testimony to
establish the reasonableness of his medical bills militates in favor of granting summary
judgment, the Court disagrees. (ECF No. 383 at 7.) As an initial matter, Defendant confusingly
uses the terms “medical treatment” and “medical bills” seemingly interchangeably, though they
have entirely different meanings. Additionally, in the Court’s view, Defendant presented the
issues of causation, necessity of medical treatment, and reasonableness of medical bills as
almost inextricably intertwined and did not explain how, on its own, any deficiencies in the
evidence on the issue of the reasonableness of medical bills would entitle Defendant to full
summary judgment on that issue.
5

Further, most of the case law Defendant cites only supports the argument that any
failure to offer expert testimony on the issue of causation would warrant summary judgment.
But Plaintiff has retained Dr. Paz to opine at least in part as to causation. While it is true that
the Court has precluded Plaintiff’s non-retained, treating physicians from offering testimony as
to the reasonableness of his medical bills (ECF No. 387 at 15–17), based on the cases
Defendant cites in the Motion, the Court cannot conclude that Defendant is entitled to summary
judgment based on this issue alone.
In Neiberger v. Fed Ex Ground Package Sys., Inc., 566 F.3d 1184, 1193 (10th Cir.
2009), the Tenth Circuit stated that “[e]ven if [the plaintiff] had attempted to introduce medical
bills or bill summaries into evidence, she would still have needed to establish that the
associated treatment was reasonable and necessary and stemmed from the accident.” Further,
the court stated that “Mrs. Neiberger was not competent to testify to the reasonable need for her
treatment or to its being caused by the accident (as opposed to her preexisting scoliosis or her
smoking). These were matters for expert medical opinion.” Id. These statements by the Tenth
Circuit, however, jointly discuss medical causation, medical treatment, and medical expenses

11

B.

Whether Plaintiff Has Been Fully Compensated
Defendant argues that “Colorado law dictates that ‘[i]f the injured party makes a

recovery of an amount that is less than the total amount of coverage available under
any third-party liability insurance policy . . . there is a rebuttable presumption that the
injured party has been fully compensated.’” (ECF No. 337 at 16 (citing C.R.S. § 10-1135(3)(d)(I)).) Given the Court’s conclusions, explained infra, Parts IV.B.1–4, the Court
cannot determine as a matter of law that Plaintiff has been fully compensated by his
settlement in the underlying liability action. Additionally, the Court questions whether
Defendant has demonstrated that the presumption cited above definitively applies in this
context (see ECF No. 352 at 2, 17)—yet another reason that the Court declines to apply
the presumption here.
However, the Court agrees with Defendant’s conclusion that to trigger UIM
coverage, Plaintiff must demonstrate that his damages exceed $1.25 million—the
amount of coverage available to Plaintiff in the underlying liability action. The parties
dispute the proper application of two Colorado Court of Appeals decisions: Jordan v.
Safeco Ins. Co. of Am., Inc., 348 P.3d 443 (Colo. Ct. App. Mar. 28, 2013) and Tubbs v.

and do not explicitly state that without expert testimony to establish the reasonableness of her
medical bills, the plaintiff’s case should have failed.
Here, Plaintiff has offered experts who will testify as to medical causation and treatment.
With respect to Plaintiff’s medical bills, the undersigned has stated that “[t]here are no
precedential authorities of which the Court is aware holding that the reasonable value of medical
goods and services is, as a matter of federal law, necessarily beyond a lay jury’s competence.”
Dedmon v. Cont’l Airlines, Inc., No. 2016 WL 471199, at *6 (D. Colo. Feb. 8, 2016); see also
Olsen v. Owners Ins. Co., 2022 WL 1791098, at *5 (D. Colo. June 1, 2022), appeal dismissed,
2022 WL 18495982 (10th Cir. Aug. 17, 2022) (amounts of medical bills serve as some evidence
of reasonable value, even without expert testimony); Blatchley v. St. Anthony Summit Med. Ctr.,
2018 WL 10322037, at *7 (D. Colo. Dec. 13, 2018) (noting that the medical bills themselves are
some evidence of reasonable value, even without supporting expert testimony)).

12

Farmers Ins. Exch., 353 P.3d 924 (Colo. Ct. App. May 21, 2015). (ECF No. 352 at 13–
15; ECF No. 383 at 12–15.) Having reviewed the case law concerning Jordan and
Tubbs, the Court agrees with Plaintiff that Tubbs applies and concludes that “a
requirement that an insured exhaust a tortfeasor’s liability limits is void and
unenforceable under Colorado law because the UIM insurance does not cover the same
injuries as the tortfeasor.” Ligotti v. Allstate Fire & Cas. Ins. Co., 2023 WL 6216623, at
*5 (D. Colo. Sept. 25, 2023) (citing Tubbs, 353 P.3d at 927).
Nevertheless, the Court disagrees with Plaintiff that he is entitled to recover UIM
benefits if his compensatory damages exceed only $566,666.666. (ECF No. 352 at 12.)
Plaintiff argues that because he recovered $466,666 in the underlying liability action,
and only $100,000 remained as a gap between the $1.5 million legal liability coverage
for all parties and the $1.4 million global settlement made with Plaintiff and the Merritts,
then the available legal liability coverage for Plaintiff is at most $566,666.66. (Id. at 15.)
Thus, he argues he is entitled to UIM benefits for any compensatory award in excess of
that number, not $1.25 million. (Id.)
However, Plaintiff’s decision to accept $466,666.66 was a voluntary one, and
Defendant has provided undisputed evidence that Plaintiff agreed to divide the
settlement equally with the Merritts because “it was the easiest way to do it.” (ECF No.
337 at 8.) Plaintiff concedes that the Colorado Uninsured Motorist statute and the
Colorado Supreme Court have not “considered what the [Colorado Uninsured Motorist
statute] requires in [his] situation, where the underlying liability policy was utilized to
settle multiple claims—whether the ‘amount of the limits’ of legal liability coverage must
be reduced to reflect the liability settlements of other injured parties.” (ECF No. 352 at

13

12.) Without sufficient supporting authority provided by Plaintiff, the Court cannot
conclude that the Colorado Supreme Court would reduce the amount of legal liability
coverage in the manner Plaintiff suggests simply because he unilaterally decided to
take a certain settlement value—particularly with no reason provided other than it was
the “easiest way to do it.” Accordingly, the Court finds that Plaintiff must demonstrate
that he has damages exceeding $1.25 million to trigger coverage under the UIM policy.
1.

Expert Testimony on Medical Causation and Damages

Defendant argues that Plaintiff cannot meet his burden for the same reasons as
set forth in Part III.A–B. (ECF No. 337 at 17.) Defendant argues that Plaintiff has no
admissible expert evidence on medical causation or on the reasonableness of the
amount of medical treatment he received or that it was necessary treatment because of
accident-related injuries. (Id.) Thus, Defendant argues that Plaintiff cannot overcome
the presumption without such evidence. (Id.)
Given the Court’s conclusion that Dr. Paz may present medical causation
testimony at trial, see supra Part III.A, this portion of Defendant’s Motion is denied.
2.

Disparity Between What Plaintiff Accepted as Settlement and Benefits
Available to Him

Defendant underscores that Plaintiff chose to accept $466,666 as his
settlement—$783,334 less than the amount of liability limits available to him. (ECF No.
337 at 17.) According to Defendant, “[t]he vast disparity between the amount Plaintiff
chose to accept and the amount of benefits available to him proves he was fully
compensated. No reasonable person would accept hundreds of thousands of dollars
less than what was available to him if he was not fully compensated by the settlement
amount to which he voluntarily agreed.” (Id.)

14

Whether a plaintiff has been fully compensated for the bodily injuries he
sustained in the accident is a question of fact for trial. Smith v. Auto-Owners Ins. Co.,
2017 WL 3223952, at *4 (D.N.M. July 27, 2017). Therefore, although what Defendant
argues may very well be true, it is a disputed factual matter for the jury to resolve. The
Court thus denies this portion of the Motion.
3.

Colorado Supreme Court’s Holding in Delta Air Lines

Defendant argues that Plaintiff’s claim for past medical expenses paid by workers
compensation insurance has been extinguished. (ECF No. 337 at 17 (citing Hoden v.
State Farm Mut. Auto. Ins. Co., 2021 WL 4264058, at *3 (D. Colo. Sept. 20, 2021);
Delta Air Lines, Inc. v. Scholle, 484 P.3d 695 (Colo. 2021); Gill v. Waltz, 484 P.3d 691
(Colo. 2021)).) In Scholle, the Colorado Supreme Court held that when “a workers’
compensation insurer settles its subrogation claim for reimbursement of medical
expenses with a third-party tortfeasor, the injured employee’s claim for past medical
expenses is extinguished completely.” Scholle, 484 P.3d at 697.
Defendant relies on Hoden, which applies Scholle and Gill to an insurance
dispute similar to the one at issue here. (ECF No. 383 at 11.) Defendant argues that
although this case is a first-party case and Scholle and Gill were third-party cases, this
Court should follow Hoden and conclude that “the procedural difference between a
third-party case, like Scholl [sic] and Gill, and a first-party case, like this one, appears
immaterial to the legal principle at issue.” (Id. (citing Hoden, 2021 WL 4264058, at *2).)
Further, Defendant contends the Court should conclude, as the court in Hoden did, that
“[t]he point of Scholle and Gill is that, to the extent the workers’ compensation
settlement covers past medical expenses, Plaintiff’s claim for those expenses has been
extinguished.” Id.
15

The Court agrees with the sound reasoning in Hoden. Like in Hoden, Plaintiff
filed a workers compensation claim, he settled his claim, and the workers compensation
insurer paid $121,602.48 in full satisfaction of Plaintiff’s past medical expenses related
to his workers compensation claim arising from the accident. (ECF No. 337 at 18.)
Thus, the Court grants this portion of the Motion and finds that Plaintiff’s claim for past
medical expenses covered by the workers compensation claim has been extinguished.
4.

Reliance on Non-Economic Damages, Impairment, and Future Medical
Costs

Defendant argues that Plaintiff cannot demonstrate that he has not been fully
compensated by relying on non-economic damages, impairment, and future medical
costs alone. (ECF No. 337 at 21.) While the Court agrees that it may be difficult—if not
impossible—for Plaintiff to demonstrate that he has in excess of $1.25 million in
damages, the Court cannot conclude as a matter of law at this stage of the litigation that
it is, in fact, impossible for Plaintiff to do so. Such a matter is for the jury to decide.
Accordingly, the Court denies this portion of the Motion.
C.

Condition Precedent to UIM Benefits
The parties agree that the Policy provides: “Whether an injured person is legally

entitled to recover damages and the amount of such damages shall be determined by
an agreement between the injured person and us.” (ECF No. 337 at 4; ECF No. 352 at
3.) Defendant argues that because it is undisputed that the parties never agreed on the
amount of damages, which is a condition precedent to its obligation to pay UIM benefits
under the Policy, Plaintiff’s breach of contract claim fails. (ECF No. 337 at 24.)
Specifically, Defendant contends that Plaintiff’s “breach-of-contract claim fails unless he
can prove that Auto-Owners unreasonably handled his UIM claim by providing evidence

16

that ‘clearly established’ that he had $1 million in UIM exposure when he demanded
limits in 2018.” (Id. at 25.) For support, Defendant relies on an unpublished decision
from the District of Colorado, Williams v. Auto-Owners Ins. Co., 2014 WL 12537030, at
*2 (D. Colo. Mar. 25, 2014), aff’d sub nom. Williams v. Owners Ins. Co., 621 F. App’x
914 (10th Cir. 2015).
In Williams, the court examined an identical insurance policy provision. Id. at *3.
The plaintiff settled with the tortfeasor driver’s insurance for the maximum policy limit of
$25,000 but claimed to have $110,000 in unreimbursed medical costs and lost income.
Id. at *1. The plaintiff’s UIM policy limit was $100,000; her insurer offered her a
settlement of $50,000 and then one of $75,000, but the plaintiff demanded her policy
limits, and the insurer would not pay anything without a release. Id. at *1–*2. It was
undisputed that the parties never reached an agreement concerning the amount of UIM
benefits to which the plaintiff was entitled. Id. at *3.
The Williams court determined that it need not decide whether the contract
language was violative of public policy but noted that neither the case law relied on by
the parties nor Colorado statutes declared that the policy language was void against
public policy. Id. Instead, the court noted that it is “well-settled that all contracts,
including contracts of insurance, contain a requirement that the parties exercise any
discretion that the contract confers upon them in a manner that reflects good faith and
fair dealing.” Id. (citing Goodson v. Am. Standard Ins. Co., 89 P.3d 409, 414 (Colo.
2004)). The court concluded that
although the UIM coverage language permits Owners to
refuse to pay benefits until the parties have reached an
agreement as to the amount of those benefits that should be
paid, Owners is nevertheless required to act reasonably and
17

in good faith in attempting to reach an agreement with Ms.
Williams as to that amount.[] Thus, Owners can be liable to
Ms. Williams for breach of contract if its failure to reach an
agreement with her as to the amount of UIM benefits was
the result of Owners’ bad faith.
Id. After analyzing the bad faith claims in the case, the court found that the plaintiff
failed to come forward with evidence to demonstrate a triable question as to whether the
defendant’s conduct toward her was unreasonable or in bad faith. Id. at *7.
Here, Defendant relies on Williams to argue that Plaintiff “must show that AutoOwners unreasonably handled his UIM claim by providing evidence that ‘clearly
established’ that he had over $1 million in UIM exposure when he demanded limits in
2018.” (ECF No. 383 at 17.) Defendant argues in its reply that Plaintiff failed to do so in
his response and thus it is entitled to summary judgment. (Id.)
In his response, Plaintiff distinguishes some facts in Williams and vaguely argues
that a policy provision precluding an insured from filing suit for breach of contract until
the parties agreed on the amount the insured was entitled to would be “non-sensical”
because that amount is almost always in dispute. (ECF No. 352 at 22.) Plaintiff
concedes that in Williams, the analysis made sense because there the insurer agreed it
owed the plaintiff something, whereas here, Defendant argues it owes him nothing. (Id.)
The Court agrees that Plaintiff’s response is decidedly less than robust. (See
ECF No. 352 at 21–22.) However, it is true that Williams is—technically—factually
distinguishable. But what is notably more important is the fact that in 2018, Plaintiff’s
life care planning expert, Aubrey Corwin, estimated his future medical care would cost
from $1.4 million to $1.7 million. 6 (ECF No. 336-17 at 99.) Additionally, the Court finds,
Plaintiff did not point to this fact in his response, but the Court is aware of this fact
based on Defendant’s Rule 702 motion practice in this case (ECF No. 335 at 4) and finds it
6

18

see infra Part III.D, that there is a genuine dispute of material fact concerning whether
Defendant acted in bad faith in this case. Given the factual distinctions between this
case and Williams, the fact that Plaintiff had some evidence of almost $2 million in
damages in 2018, and the Court’s finding that there is a factual dispute with respect to
Plaintiff’s bad faith claims, the Court denies this portion of the Motion.
D.

Bad Faith Claims
Defendant argues that Plaintiff’s bad faith claims fail for numerous reasons,

including that he failed to trigger UIM coverage, and Defendant was reasonable as a
matter of law, among others that the Court will not enumerate here. (ECF No. 337 at
25–31.) Despite Defendant’s arguments, the Court cannot conclude in this Order as a
matter of law that Plaintiff failed to trigger UIM coverage, for reasons explained above.
Moreover, the Court finds based on Levin’s opinions in his expert report that a
genuine dispute of material fact exists with respect to whether Defendant acted
unreasonably as a matter of law in handling Plaintiff’s UIM claim. (ECF No. 335-2 at 10
(explaining that in Levin’s opinion, Defendant “acted unreasonably and in contravention
of settled industry standards in handling Cope’s claim for UIM benefits”).) See, e.g.,
Fabian v. State Farm Mut. Auto. Ins. Co., 2023 WL 5179113, at *4 (D. Colo. Aug. 11,
2023) (denying summary judgment on bad faith claims based on insurance expert’s
standard of care opinions). Accordingly, the Court denies this portion of the Motion.
IV. FINAL THOUGHTS
Despite the foregoing rulings, the Court agrees with Defendant that Plaintiff has a
very difficult, if not impossible, hill to climb to prove to a jury that his damages exceed
weighs in favor of denying summary judgment on this issue.

19

$1.25 million—particularly when he settled for approximately $466,000 when hundreds
of thousands more dollars were potentially available to him. Moreover, it is undisputed
that the Accident occurred over ten years ago, Plaintiff has already received at least
$466,000 from Landgraf’s insurer, and that the parties have been litigating this case
since January 8, 2018—almost six years.
The Court, therefore, has every expectation that the parties will successfully
resolve this matter before trial. Proceeding to a nine-day jury trial in federal court to
resolve this dispute would be a colossal misuse of the Court's limited resources, not to
mention the significant time and expense such an undertaking would require of the
parties in order to take such this dispute to trial.
V. CONCLUSION
Accordingly, for the reasons stated, the Court ORDERS as follows:
1.

Defendant’s Motion (ECF No. 337) is GRANTED IN PART and DENIED IN PART
as set forth above; and

2.

This case remains SET for a Final Trial Preparation Conference on July 8, 2024
and a nine-day jury trial to begin on July 22, 2024 (ECF No. 367).
Dated this 12th day of December, 2023.
BY THE COURT:

______________________
William J. Martínez
Senior United States District Judge

20