United States District Court, D. Colorado
ORDER ON MOTION TO DISMISS
MICHAEL E. HEGARTY, Magistrate Judge.
Before the Court is Defendants' Motion to Dismiss [filed September 26, 2014; docket #11]. The motion is fully briefed, and oral argument would not materially assist the Court in its adjudication. Also before the Court is Defendants' Unopposed Motion to Stay Pending Ruling on Motion to Dismiss [filed October 17, 2014; docket #15]. For the reasons that follow, the Court grants the motion to dismiss and denies as moot the motion to stay.
Plaintiff Melvin Bernstein initiated this action on August 29, 2014 in El Paso County District Court (docket #3), then amended his complaint as a matter of course on September 12, 2014 (docket #4). On September 18, 2014, Defendants removed the action to this Court pursuant to 28 U.S.C. § 1441(b) governing diversity jurisdiction. (Docket #1.)
The following are factual allegations made by Plaintiff in his Amended Complaint, which are taken as true for analysis under Fed.R.Civ.P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In late May or early June 2012, but no later than June 9, 2012, National Union issued a Blanket Accident Insurance policy to Discovery Talent ("Discovery") and Anthropic Productions ("Anthropic"), under policy number GTP XXXXXXXXXX-XXX ("Policy"). The Policy was issued in connection with Discovery's production of a reality-television pilot at the shooting range and military museum owned by Plaintiff Melvin Bernstein and his late wife, Terry Flanell-Bernstein in Colorado Springs, Colorado ("the Production").
The Policy provided for a $1 million benefit to be paid to any eligible cast or crew member accidentally killed during the Production. Terry Flanell-Bernstein and Plaintiff Melvin Bernstein were among the cast members eligible for the accidental-death benefit under the Policy.
On or about June 14, 2012, Terry Flanell-Bernstein was accidentally killed during the Production. Upon the death of Terry Flanell-Bernstein, Plaintiff, as her surviving spouse, became eligible for the $1 million accidental-death benefit under the Policy.
By June 25, 2012, AIG and National Union had received notice from Discovery and/or Anthropic that Terry Flanell-Bernstein had been accidentally killed during the Production; AIG and National Union knew or reasonably should have known that Plaintiff was the surviving spouse of Terry Flanell-Bernstein and was the primary beneficiary of the $1 million accidental-death benefit under the Policy; and AIG and National Union knew how to contact Plaintiff, or readily could have learned how to contact him.
On November 3, 2012, Plaintiff's attorney sent a letter of representation to Discovery and Anthropic in connection with the death of Terry Flanell-Bernstein. At some point after November 3, 2012, Discovery and/or Anthropic brought the letter of representation to AIG's attention, and on May 7, 2013, AIG sent a letter to Plaintiff's attorney informing him of the existence of the Policy. In May 2014, National Union paid to Plaintiff Melvin Bernstein the $1 million accidental-death benefit under the Policy.
From June 25, 2012 until May 7, 2013, neither AIG nor National Union had any reason to believe that Plaintiff was aware of the existence of the Policy, nor made any attempt to notify Plaintiff about the existence of the Policy.
II. Procedural History
Based upon these allegations, Plaintiff brings claims against Defendants for violations of Colo. Rev. Stat. §§ 10-3-1115 and 10-3-1116. After removal of the action to this Court, Defendants filed the present motion to dismiss the Amended Complaint arguing that the statutes are not applicable to the facts as stated. Specifically, Defendants claim that, since Plaintiff alleges he was unaware of the Policy between June 25, 2012 and May 7, 2013 and, thus, could not have filed any benefits claim during that time, he cannot ...