Colony Insurance Company v. Bristlecone Montessori School et al

Filing 34

ORDER granting in part and denying in part 31 Verified Motion for Service by Publication or on Defense Counsel and Request for Enlargement of Time to Serve Defendants Bristlecone Montessori School and Ruthann Sherrier. The Order to Show Cause 30 is DISCHARGED. It is further ORDERED that the Status Conference set for January 12, 2021 at 11:00 AM is VACATED and RESET for February 17, 2021 for 11:00 AM, by Magistrate Judge Scott T. Varholak on 1/5/2021.(jgonz, )

Case 1:20-cv-01269-CMA-STV Document 34 Filed 01/05/21 USDC Colorado Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 20-cv-01269 CMA-STV
COLONY INSURANCE COMPANY,
Plaintiff,
v.
BRISTLECONE MONTESSORI SCHOOL
RUTHANN SHERRIER
JESSICA TERRIZZI CALDWELL
R.W., a minor, individually and by and through his guardian and next friend, Tina Satch
DOES 1-10,
Defendants.
______________________________________________________________________
ORDER
______________________________________________________________________
Magistrate Judge Scott T. Varholak
This matter is before the Court on Plaintiff Colony Insurance Company’s (“CIC”)
Verified Motion for Service by Publication or on Defense Counsel and Request for
Enlargement of Time to Serve Defendants Bristlecone Montessori School and Ruthann
Sherrier (the “Motion”) [#31]. For the following reasons, the Motion is GRANTED in
part and DENIED in part.
1. BACKGROUND
This insurance coverage action arises out of a lawsuit filed in connection with
injuries a minor allegedly sustained while attending Bristlecone Montessori School.1
[#31 at 2] Bristlecone Montessori School (“Bristlecone”) is Plaintiff’s named insured,

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and RuthAnn Sherrier was Bristlecone’s owner and director at the time of the injuries
alleged in the underlying action; both parties are named defendants in the underlying
action. [Id.] Plaintiff CIC provided Bristelcone and Sherrier with a defense under a
reservation of rights and retained James Murdock at Taylor Anderson, LLP as their
defense counsel. [Id.] Later, and due to coverage issues that arose in the underlying
action, CIC filed the instant action. [Id.] However, CIC has been unable to serve either
Bristelcone or Sherrier, despite numerous efforts. [Id.]
As to Bristlecone, CIC asserts that Bristlecone’s last known address has been
unoccupied at each of four service attempts, that the building is under construction, and
that an individual at the Bristlecone location stated that Bristlecone had not operated at
that address for approximately a year.

[Id. at 3]

The Motion further asserts that

Bristlecone is listed as “delinquent” on the Colorado Secretary of State website and that
mail addressed to Bristelcone’s principal place of business was returned to CIC’s
counsel as unable to forward. [Id. at 4] Mail sent to Bristlecone’s registered agent at a
Post Office Box was also returned as unable to forward. [Id.]
CIC further asserts that, as to Sherrier, it was able to locate a last known
address; however, during each of CIC’s six attempts at personal service Sherrier “never
answered the door and a car was always missing from her unit’s assigned parking.”
[Id.] CIC was able, however, to confirm from a neighbor that Sherrier did in fact live at
that address. [Id.] CIC made no further attempts at personal service after the date in
which it received confirmation that Sherrier lived at that address. [#31-3] CIC asserts

1

The underlying action is entitled R.W., a minor, individually and by and through his
guardian and next friend, Tina Satch v. Bristlecone Montessori School, et al., and was
filed in Park County, Colorado, Civil Action No. 2019CV30064. [#31 at 2]
2

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that there were no opportunities for substitute service at Sherrier’s last known address
and that it was not able to locate Sherrier’s current workplace information. [#31 at 4]
CIC has provided the Court an affidavit in support of the Verified Motion [#31-1],
as well as affidavits of nonservice on both Bristlecone and Sherrier [#31-3; #31-4].
Accordingly, CIC seeks leave of this Court to serve Bristlecone and Sherrier either
through publication or through their defense counsel retained in the underlying action,
James Murdock. [Id. at 3] CIC also seeks an additional 60 days in which to effect
service. [Id.]
2. ANALYSIS
Although the Federal Rules of Civil Procedure require personal or
substitute service, Fed. R. Civ. P. 4(e) permits a party to effect service in accordance
with state law, by providing that “unless federal law provides otherwise” an individual or
corporation may be served in a judicial district of the United States by “following state
law for serving a summons in an action brought in courts of general jurisdiction in the
state where the district court is located or where service is made.” Fed. R. Civ. P.
4(e)(1); Fed. R. Civ. P. 4(h) (a corporation may be served in the manner described for
service on individuals under Rule 4(e)(1)).
The Colorado Rules of Civil Procedure allow a party to seek permission for
service by publication for in rem proceedings when personal service is not effective:
(g) Other Service. Except as otherwise provided by law, service by mail or
publication shall be allowed only in actions affecting specific property or
status or other proceedings in rem. When service is by publication, the
complaint need not be published with the summons. The party desiring
service of process by mail or publication under this section (g) shall file a
motion verified by the oath of such party or of someone in the party's
behalf for an order of service by mail or publication. It shall state the facts
authorizing such service, and shall show the efforts, if any, that have been
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made to obtain personal service and shall give the address, or last known
address, of each person to be served or shall state that the address and
last known address are unknown. The court, if satisfied that due diligence
has been used to obtain personal service or that efforts to obtain the same
would have been to no avail, shall [permit service by mail or publication].
Colo. R. Civ. P. 4(g).
Where a party is unable to effectuate personal service and where service by mail
or publication is not permitted under Colorado Rule of Civil Procedure 4(g), “the party
may file a motion, supported by an affidavit of the person attempting service, for an
order for substituted service.” Colo. R. Civ. P. 4(f). The motion must detail the efforts
made at personal service and their reason for failure, “the identity of the person whom
the party wishes to deliver the process,” and the last known address of the party upon
whom service is to be effected. Id. The Court may authorize alternative service if it is
satisfied that due diligence has been used to attempt personal service, that further
service attempts would be to no avail, and that the person to whom delivery of process
is proposed is “appropriate under the circumstances and reasonably calculated to give
actual notice to the party upon whom service is to be effective.” Id.
In Colorado, “generally service of process on an attorney of record is improper
unless the attorney has been specifically authorized by his client to accept service.”
State Farm Fire & Cas. Co. v. Webb, No. 18-CV-02722-WYD-NRN, 2019 WL 1296632,
at *2 (D. Colo. Mar. 21, 2019) (citing Bardahl Mfg. Corp. v. Dist. Ct. In and For Jefferson
Cnty., 372 P.2d 447 (Colo. 1962); see also ReMine ex rel. Liley v. Dist. Ct. for Cty. and
Cnty. Denv., 709 P.2d 1379, 1381 (Colo. 1985) (noting that substituted service statutes
“are in derogation of common law and must be strictly construed”). “But at least one
Colorado court has suggested that service on an attorney may be proper under
Colorado's separate agent-service rule where the attorney is impliedly authorized to
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accept service.”

Allstate Ins. Co., v. Cruz, No. 20-cv-03139-DDD-MEH, 2020 WL

7421389, at *1 (D. Colo. Nov. 18, 2020) (citing Southerlin v. Auto. Elecs. Corp., 773
P.2d 599, 601 (Colo. App. 1988), disapproved of on other grounds by First Nat. Bank of
Telluride v. Fleisher, 2 P.3d 706 (Colo. 2000)). In general, service must comply with
due process such that it is “reasonably calculated, under all circumstances, to apprise
interested parties of the pendency of the action and afford them an opportunity to
present their objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306,
314 (1950).
First, CIC requests leave to effect service by publication.

CIC asserts that

“Colorado courts have found that the determination of insurance benefits confers ‘in
rem’ jurisdiction that allows for service by publication.” See Gallegos v. Rocky Mountain
Chiropractic Corp., 2014 WL 788369, at *3 (D. Colo. Feb. 27, 2014); Baker v. Young,
798 P.2d 889, 894 (Colo.1990) (insurer’s obligation to defend and indemnify an insured
under an automobile liability policy constitutes a non-exempt property interest as
needed to assert quasi in rem jurisdiction over a non-resident insured). As CIC notes,
however, other Courts in this District have declined to permit in rem service under
similarly situated declaratory judgment insurance cases. See State Farm Fire and Cas.
Co., 2019 WL 1296632, at *1.

And CIC provides no Colorado case law specific to

service under this provision in an action such as this. The state of the briefing therefore
gives the Court pause as to permitting service by publication in this case.
In any event, the Court is not satisfied that “due diligence has been used to
obtain personal service or that efforts to obtain the same would have been to no avail.”
Colo. R. Civ. P. 4(g); see also Colo. R. Civ. P. 4(f). Although CIC made six attempts to

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personally serve Defendant Sherrier, its last attempt was made on August 7, 2020.
[#31-3] This Motion was filed on December 18, 2020 and CIC makes no assertion as to
efforts made in the intervening months. [See generally #31] Additionally, CIC made no
additional attempts at personal service after the date on which it received confirmation
of Sherrier’s address.

[#31-3]

The Motion further makes no factual allegations

suggesting that Sherrier is in fact avoiding service, rather than simply not at home at the
times service was attempted.2 The Court is therefore not convinced that further efforts
to effect personal service on Defendant Sherrier would be to no avail, nor that CIC is
unable to locate additional work or residential addresses for service after several
months of inaction. See Allstate Ins. Co., 2020 WL 7421389, at *2 (declining to permit
alternate service under Colorado law where further efforts may effectuate personal
service). The Court therefore declines to find that substitute service is appropriate at
this time, although it does not foreclose such a future finding.
Although CIC has provided evidence of more recent attempts at service or
contact with Bristlestone, including an attempt at mail contact as recently as October 26,
2020, [#31-6], like with Defendant Sherrier, CIC relies primarily on information from
several months ago. [## 31-4; 31-5] Additional information and efforts are therefore
necessary to satisfy the Court that CIC has engaged in due diligence, as required by the
Colorado Rules of Civil Procedure.
Accordingly, the Verified Motion for Service by Publication or on Defense
Counsel and Request for Enlargement of Time to Serve Defendants Bristlecone
Montessori School and Ruthann Sherrier [#31] is GRANTED in part and DENIED in

2

The Court notes that the parking space for the address was empty on each attempt and that the
6

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part. The Motion is GRANTED to the extent Plaintiff seeks an extension of time to
serve Defendants. The Court grants an extension of 30 days from the date of this Order
for Plaintiff to make additional service attempts. Accordingly, the Order to Show Cause
[#30] is DISCHARGED. The Motion is DENIED WITHOUT PREJUDICE to the extent
Plaintiff seeks to serve Defendants by alternate publication or through defense counsel.
If Plaintiff is unable to effect personal service after diligent effort during the granted
extension, Plaintiff may renew its motion for alternate service. If Plaintiff renews such a
motion, it shall include additional caselaw supporting service under Colorado Rules of
Civil Procedures 4(f) and 4(g).
It is further ORDERED that the Status Conference set for January 12, 2021 at
11:00 AM is VACATED and RESET for February 17, 2021 for 11:00 AM.

DATED: January 5, 2021

BY THE COURT:
s/Scott T. Varholak
United States Magistrate Judge

process server never saw Sherrier. [#31-3]
7