Elliott-Fougere v. CSAA General Insurance Company

Filing 64

ORDER ON PLAINTIFF'S MOTION FOR LEAVE TO AMEND COMPLAINT (Dkt. # 60 ) by Magistrate Judge N. Reid Neureiter on 19 September 2022. It is hereby ORDERED that Plaintiff's Motion for Leave to Amend (Dkt. #60) is GRANTED. The Amended Complaint ( Dkt. #50-1) shall be the operative complaint in this case and shall be placed on the docket and deemed filed as of the date of this Order. Defendant CSAA shall answer consistent with the deadlines prescribed in the Federal Rules of Civil Procedure for responding to amended pleadings.(cmadr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 21-cv-02473-NRN
SARA ELLIOTT-FOUGERE,
Plaintiff,
v.
CSAA GENERAL INSURANCE COMPANY,
Defendant.

ORDER ON
PLAINTIFF’S MOTION FOR LEAVE TO AMEND COMPLAINT
(Dkt. #60)

N. REID NEUREITER
United States Magistrate Judge
This matter comes before the Court on Plaintiff’s Motion for Leave to Amend the
Complaint (“Motion to Amend”). Dkt. #60. The Motion was originally filed (not in
compliance with the Court’s Local Rules) on August 25, 2022. See Dkt. #50. The Motion
was refiled, with leave of the Court, on September 8, 2022, this time with Plaintiff
attaching the proposed Amended Complaint in redline as required by the Local Rules.
See Dkt. #60. Defendant CSAA General Insurance Company (“Defendant” or “CSAA”)
had filed an opposition to the original Motion to Amend on September 5, 2022. I heard
argument on Plaintiff’s revised motion on during a September 7, 2022 telephonic
hearing. See Dkt. #62.
A final pretrial conference will be held in this case on November 10, 2022. Trial is
set in this case for five days beginning on December 5, 2022.

Basis for Motion to Amend
Plaintiff seeks to amend her Complaint to add more factual detail to her statutory
claims of unreasonable delay and denial of her insurance claim. Specifically, Plaintiff
claims that she discovered through CSAA’s expert disclosures that CSAA’s specifically
selected IME doctor, Dr. Rebekah Martin, had not received all the relevant medical
records at the time of her initial examination of Plaintiff, despite the fact that CSAA had
been provided those records by Plaintiff. As a result of her failure to review all the
records, Dr. Martin’s initial August 2021 report on Plaintiff’s condition was favorable to
CSAA and formed part of the basis for CSAA’s initial denial of Plaintiff’s UIM claim.
On July 29, 2022, CSAA produced its expert disclosures. Included with those
disclosures was a supplemental report from Dr. Martin dated July 7, 2022. In the July 7,
2022 supplemental report, Dr. Martin, after finally having received and reviewed the full
medical records, changed her opinion. See Proposed Am. Compl., Dkt. #60-1 ¶ 74 (“Dr.
Martin’s July 7, 2022 report noted that when she issued her opinions in her August 16,
2021 report, she did not have Plaintiff’s medical records of the six (6) bilateral C1/2
facet joint injections that Plaintiff underwent between May 2020 and June 2021.”). As a
result of Dr. Martin’s changed opinion, on August 5, 2022, CSAA tendered to Plaintiff full
UIM policy limits. See id. ¶ 85.
The gist of Plaintiff’s proposed amendment is to add a “more detailed statement”
of CSAA’s alleged bad faith conduct. Specifically, Plaintiff seeks to add the allegations
that CSAA unreasonably relied on Dr. Martin’s original August 2021 opinion in denying
the UIM claim when the original opinion was based on incomplete information. See Dkt.
#50 at 2, ¶ 8.

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CSAA’s Opposition to the Proposed Amendment
CSAA opposes the proposed amendment. CSAA argues that the amendment
comes after the time for amendment as provided in the Scheduling Order, and therefore
Plaintiff must show good cause for any amendment. Here, CSAA says there is no good
cause because CSAA served its initial disclosures in January 2022 and, based on the
documents provided, Plaintiff could have easily seen that CSAA had only asked Dr.
Martin to review the narrative summary provided by Plaintiff’s treating physician (Dr.
Trainor) and not the medical records themselves. Per CSAA,
even a simple review of the above referenced documents would have
provided Plaintiff’s counsel with the information necessary to recognize that
CSAA provided Dr. Martin with a copy of Dr. Trainor’s summary report,
rather than the medical records themselves. As such, and given that the
Plaintiff has had the aforementioned documents in her possession since
January 18, 2021, if not before, Plaintiff cannot establish good cause for the
untimely amendment.
Dkt. #58 at 7. CSAA argues that since an analysis of the materials provided as early as
2021 would have shown Dr. Martin had issued her initial opinion without a full review of
the medical records, nothing was learned during discovery that could not have been
learned early on with adequate due diligence.
CSAA also argues that the late amendment will result in undue prejudice to
CSAA because expert disclosures have already occurred and the discovery cutoff is set
for September 30, 2022, with trial set to commence on December 5, 2022. CSAA
makes the peculiar claim that allowing late amendment would effectively permit Plaintiff
to circumvent the written discovery deadline because answering the Amended
Complaint would result in CSAA “being required to provide admissions or denials to
factual allegations without the benefit of being able to assert necessary objections and
seek judicial intervention, if necessary.” Dkt. #58 at 8.
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CSAA finally argues that much of the proposed Amended Complaint (paragraphs
65 through 72) focusses on the post-litigation conduct of counsel. CSAA’s position is
that Colorado law generally does not allow an attorney’s litigation conduct to be imputed
to an insurer. CSAA claims that even requiring it to respond to these allegations would
implicate the attorney-client and work product doctrines unduly prejudicing CSAA. See
Dkt. #58 at 9.
Legal Standard
Per the Scheduling Order, entered on December 20, 2021, the deadline by which
the parties were to amend pleadings was February 4, 2022. DKt. #19 ¶ 9(a). Allowing
amendment would mean modifying the Scheduling Order, which requires good cause
under Rule 16. See Gorsuch, Ltd., B.C. v. Wells Fargo Nat. Bank Ass’n, 771 F.3d 1230,
1240 (10th Cir. 2014) (explaining that once the scheduling order deadline has passed,
“a party seeking leave to amend must demonstrate (1) good cause for seeking
modification under Fed. R. Civ. P. 16(b)(4) and (2) satisfaction of the Rule 15(a)
standard”). In practice, this good cause standard requires the movant to show the
scheduling deadlines could not be met despite the movant’s diligent efforts. Rule 16’s
good cause requirement may be satisfied, for example, if a plaintiff learns new
information through discovery or if the underlying law has changed. If the plaintiff
generally knew of the underlying conduct but simply failed to raise the claim, however,
good cause is not shown. Id.
The Rule 16(b)(4) standard requires the movant to show that, despite the
movant’s diligent efforts, he or she could not meet the scheduling deadline. Birch v.
Polaris Indus., Inc., 812 F.3d 1238, 1247 (10th Cir. 2015); Pumpco, Inc. v. Schenker

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Int’l, Inc., 204 F.R.D. 667, 668 (D. Colo. 2001); Minter v. Prime Equip. Co., 451 F.3d
1196, 1205 n.4 (10th Cir. 2006). To prove diligence, a plaintiff must provide an
adequate explanation for any delay. Minter, 451 F.3d at 1205 n.4. If a plaintiff learns
new information through discovery, good cause to amend may be established under
Rule 16(b)(4). Birch, 812 F.3d at 1247; see also Riggs v. Johnson, No. 09-cv-01226WYD-KLM, 2010 WL 1957110, at *3 (D. Colo. Apr. 27, 2010) (granting a motion for
joinder six months after the scheduling order deadline); Fiechtner v. Am. Fam. Mut. Ins.
Co., No. 09-cv-02681-REB-MEH, 2010 WL 5185490, at *3 (D. Colo. Oct. 19, 2010)
(permitting amendment of the scheduling order and the pleadings to add an exemplary
damages claim five months after deadline because plaintiff filed the motion within 30
days of receiving the evidence on which the motion was based). Conversely, if the
plaintiff knew of the conduct substantiating the claims he seeks leave to add, but simply
failed to raise the claims, the plaintiff has failed to show good cause, and the claims are
barred. Birch, 812 F.3d at 1247.
Assuming Plaintiff can show good cause for amendment, the Court turns to the
principle that leave to amend shall be freely granted when justice so requires. See Fed.
R. Civ. P. 15(a)(2). “If the underlying facts or circumstances relied upon by a plaintiff
may be a proper subject of relief, he ought to be afforded an opportunity to test his claim
on the merits.” Foman v. Davis, 371 U.S. 178, 182 (1962). Leave to amend should be
refused “only on a showing of undue delay, undue prejudice to the opposing party, bad
faith or dilatory motive, failure to cure deficiencies by amendments previously allowed,
or futility of amendment.” Duncan v. Manager, Dep’t of Safety, City and Cnty. of Denver,
397 F.3d 1300, 1315 (10th Cir. 2005).; see also Foman, 371 U.S. at 182.

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Analysis and Decision
The Court finds that Plaintiff has shown good cause to amend to add the
additional allegations relating to unreasonable delay and denial.
The critical moment in time when it would have been apparent to a reasonable
person that the reason UIM benefits had been denied was after CSAA reversed its
position and paid Plaintiff’s UIM benefits. Plaintiff’s counsel received CSAA’s July 29,
2022 expert disclosure, which included Dr. Martin’s July 7, 2022 supplemental report.
On August 5, 2022, six days after the disclosure of Dr. Martin’s supplemental report,
CSAA tendered Plaintiff her full UIM benefits. Plaintiff’s original motion for leave to
amend was filed on August 25, 2022 (Dkt. #50), within three weeks of the payment of
UIM benefits by CSAA. It would only have been after CSAA’s reversal of its position,
based on Dr. Martin’s supplemental report—in which Dr. Martin attributed her own
change in position to not having received the full medical records—that Plaintiff would
have known that the CSAA’s alleged failure to provide full medical records for Dr. Martin
to review was in part responsible for the delay in paying benefits.
CSAA’s argument that Plaintiff’s counsel would have and should have known
earlier that Dr. Martin did not have all the medical records rings hollow. What was
important was that once Dr. Martin received and reviewed all the medical records
(which had been provided to CSAA), she changed her opinion and CSAA changed its
benefits position as a result. I find that there is good cause to amend because this
information was learned during discovery, and I further find that Plaintiff did not unduly
delay in seeking to amend once benefits were paid.

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I do not find that CSAA is unfairly prejudiced by this proposed amendment.
CSAA can explain why it failed to provide full medical records to its IME examiner. Or
Dr. Martin can explain why she relied only on a summary rather than full medical
records in making her initial opinion. To the extent that CSAA believes that the
amendment in support of Plaintiff’s unreasonable delay claim improperly references
litigation conduct of counsel (rather than conduct of CSAA), CSAA is free to file a
motion in limine making this point and providing supporting authority. But a motion to
amend is not the place to litigate what evidence should or should not be admitted at
trial.
I would note that Plaintiff’s Amended Complaint takes a somewhat conflicted
approach to alleging unreasonable conduct by CSAA. On the one hand, Plaintiff
repeatedly has emphasized Dr. Martin’s alleged bias in favor of insurers because of the
amount of money she makes doing IME examinations. But, on the other hand, Plaintiff
seems to be championing Dr. Martin as an honest doctor who would have given the
correct opinion from the beginning, but for CSAA’s failure to give her all the necessary
medical records. At some point, Plaintiff will have to decide what coherent story it is
going to tell the jury. But Plaintiff is entitled to plead theories in the alternative. There is
still enough time before trial for CSAA to muster the evidence to convince a jury that any
delay in payment of UIM benefits was reasonable.
Order
It is hereby ORDERED that Plaintiff’s Motion for Leave to Amend (Dkt. #60) is
GRANTED. The Amended Complaint (Dkt. #50-1) shall be the operative complaint in
this case and shall be placed on the docket and deemed filed as of the date of this

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Order. Defendant CSAA shall answer consistent with the deadlines prescribed in the
Federal Rules of Civil Procedure for responding to amended pleadings.

Dated:

September 19, 2022
Denver, Colorado

N. Reid. Neureiter
United States Magistrate Judge

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