The opinion of the court was delivered by: Judge Phillip S. Figa
ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on defendant's Motion for Summary Judgment (Dkt. # 13), filed March 28, 2005. Plaintiff filed her response to the motion on April 22, 2005 (Dkt. # 18). Defendant filed its reply on May 6, 2005 (Dkt # 20). On January 23, 2006, a Final Pretrial Order was entered in this case and it was set for a trial to the Court for April 24, 2006. The matter is ripe for determination. The Court has determined that a hearing on the motion will not materially advance its understanding.
The dispute between the parties centers upon plaintiff's automobile insurance coverage. The following facts are uncontested. On September 5, 2002, Plaintiff Ruth Lust was involved in a two-car accident on Highway 36 in Estes Park, Colorado.
A vehicle driven by Benjamin McCleary pulled out in front of Ms. Lust, causing their two vehicles to collide and Ms. Lust to sustain serious injuries. At the time of the accident, Ms. Lust was insured under an automobile insurance policy issued by Defendant State Farm Mutual Automobile Insurance Company's ("State Farm"), Policy No. 625 8626-E28-06D ("the insurance policy"). The insurance policy provided the minimum required Personal Injury Protection ("PIP") of $50,000 in medical and $50,000 in rehabilitation benefits (Defendant's Motion at 3; Plaintiff's Response at 3-4).
Plaintiff commenced this action in Larimer County District Court on August 31, 2004. On or about November 11, 2004, plaintiff filed an amended complaint in Larimer County District Court. On December 15, 2004, State Farm timely removed the case to this Court. On February 24, 2005, plaintiff filed an unopposed motion for leave to file a Second Amended Complaint, which was granted on February 28, 2005.
In addition, to the above facts, plaintiff alleges that her injuries are so severe that her medical and rehabilitation costs have exceeded $100,000 PIP limits in her policy. Second Amended Complaint, ¶ 8. Plaintiff alleges that she made a claim for PIP benefits in excess of the policy limits, which was denied. Id., ¶¶ 9, 15. Plaintiff's Second Amended Complaint seeks reformation of the insurance policy "without dollar or time limitations" based on her allegation that State Farm failed to make an adequate offer of "enhanced" PIP benefits as allegedly required by C.R.S. § 10-4-710(2)(a), which was in effect at the time she purchased her policy.*fn1 Id., ¶¶ 10, 12. The complaint also sought treble damages, interest and attorneys' fees pursuant to C.R.S. § 10-4-708 (1.7) and (1.8). Id., ¶¶ 17, 18. However, in response to Defendant's Motion, plaintiff has "confessed" her claims under C.R.S. § 10-4-708 (Plaintiff's Response at 3) and therefore those claims are dismissed. Thus only her claim for reformation of the policy limits remains before the Court.
DEFENDANT'S MOTION AND PLAINTIFF'S RESPONSE
State Farm contends that the undisputed facts show that it did offer plaintiff enhanced PIP benefits, in accordance with C.R.S. § 10-4-710(2)(a). It asserts that such benefits were made available to her in several policy renewal notices and accompanying "News and Notes" pamphlets which were mailed to plaintiff before the date of the accident.
Specifically, State Farm has submitted an affidavit by Mr. Richard Weitzel, its Greeley Operations Center Systems Coordinator, who attests that he is familiar with the policy-related material mailed to plaintiff (Weitzel Affidavit, Exhibit C to Defendant's Motion, ¶ 3). Mr. Weitzel states that on or about October 21, 2001, defendant mailed plaintiff an Auto Renewal Notice and a newsletter titled "News and Notes," copies of which are attached as Exhibits G and H, respectively, to defendant's motion (Id. at ¶ 6.) The Auto Renewal Notice, pertaining to the policy period of November 28, 2001 through May 28, 2002 contains the following language:
HIGHER PERSONAL INJURY PROTECTION COVERAGE LIMITS ARE AVAILABLE-You can purchase higher Personal Injury Protection coverage limits with no deductible.
Coverage P4 semi-annual Premium = $88.38 Coverage P8 semi-annual Premium = $85.86 See the enclosed News and Notes article for an explanation of these coverages.
Exhibit G to Defendant's Motion. The accompanying "News and Notes" pamphlet contained an explanation of these enhanced coverages, beyond the cost and availability. Specifically, the ...