United States District Court, D. Colorado
Krlsten L. Mix United States Magistrate Judge
This matter is before the Court on Defendant American Family Mutual Insurance Company’s Motion for Summary Judgment [#24] (the “Motion”). Plaintiff filed a Response [#25] to the Motion. Defendant filed a Reply [#26] in further support of the Motion. The Motion is ripe for resolution. The Court has reviewed the Motion, the Response, the Reply, the entire docket, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Motion [#24] is DENIED.
In this action, Plaintiff seeks underinsured motorist benefits from Defendant and brings related breach of contract, negligence, and statutory claims, for which he seeks damages. Compl. [#3] ¶¶ 15-44. Specifically, Plaintiff brings the following claims: (1) negligence; (2) breach of contract for failure to provide underinsured motorist benefits; (3) a claim titled “Claim for Underinsured Motorist Benefits” that alleges that “Defendant has failed to provide” benefits due to Plaintiff under his insurance contract; (4) a claim of bad faith breach of contract; and (5) a claim for violation of Colo. Rev. Stat. §§ 10-3-115 and 10-3-116. Id.
In the Motion, Defendant argues that Plaintiff’s negligence claim is not recognized under Colorado law. Motion [#24] at 4. Defendant further argues that Plaintiff’s remaining claims are barred by the applicable statutes of limitations. Motion [#24] at 4-7. Defendant also argues that Plaintiff’s third claim is duplicative of his breach of contract claim. Id. at 5-6.
In his Response, Plaintiff withdraws his negligence claim. Response [#25] at 3. With regard to the claims governed by a two-year statute of limitations, Plaintiff argues that the date of accrual-the date he received payment of insurance benefits-was September 10, 2012, not July 23, 2012. Plaintiff offers an affidavit signed by his attorney stating that the date provided in Plaintiff’s response to Interrogatory No. 27 was provided in error. Id. at 3; see generally, Motion, Ex. 7. With regard to Plaintiff’s fifth claim, which Defendant argues is governed by a one-year statute of limitations, Plaintiff simply refers to his arguement regarding the claims governed by a two-year statute of limitations. Response [#25] at 5 (“Plaintiff incorporates the analysis contained in Section VII above . . . .”). In addition, Plaintiff does not address Defendant’s agreement that his third claim is duplicative of his breach of contract claim.
In its Reply, Defendant asks the Court to disregard the affidavit signed by Plaintiff’s attorney, arguing that it is a sham affidavit that is contradicted by both the sworn interrogatory response disclosed by Plaintiff and by his deposition testimony. Reply [#26] at 2. Defendant further argues that the documentary evidence provided by Plaintiff with his Response does not substantiate his position that he received payment of $100, 000 from State Farm on September 10, 2012. Id. at 4. In addition, Defendant revisits its arguments with regard to Plaintiff’s bad faith claim and his statutory claim. Id. at 5-6.
II. Standard of Review
The purpose of a motion for summary judgment pursuant to Fed.R.Civ.P. 56 is to assess whether trial is necessary. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). An issue is genuine if the evidence is such that a reasonable jury could resolve the issue in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it might affect the outcome of the case under the governing substantive law. Id.
The burden is on the movant to show the absence of a genuine issue of material fact. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (citing Celotex, 477 U.S. at 323). When the movant does not bear the ultimate burden of persuasion at trial, the “movant may make its prima facie demonstration [of the absence of a genuine issue of material fact] simply by pointing out to the [C]ourt a lack of evidence for the nonmovant on an essential element of the nonmovant’s claim.” Id. at 671. If the movant carries the initial burden of making a prima facie showing of a lack of evidence, the burden shifts to the nonmovant to put forth sufficient evidence for each essential element of his claim such that a reasonable jury could find in his favor. See Anderson, 477 U.S. at 248; Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999), abrogation recognized by Eisenhour v. Weber Cnty., 744 F.3d 1220, 1227 (10th Cir. 2014). Conclusory statements based merely on conjecture, speculation, or subjective belief are not competent summary judgment evidence. Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). The nonmoving party’s evidence must be more than “mere reargument of [his] case or a denial of an opponent’s allegation” or it will be disregarded. See 10B Charles Alan Wright, et al., Federal Practice and Procedure § 2738 at 356 (3d ed. 1998).
Only documents that adhere to the evidentiary requirements of Fed.R.Civ.P. 56 may be considered for purposes of summary judgment. Rule 56(c) provides that:
(1) A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials[.] ...
(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.
Fed. R. Civ. P. 56(c)(1)-(4).
As discussed above, a motion for summary judgment must be granted if “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In support of its Motion, Defendant offers the following undisputed facts, which are supported by documentary evidence:
A. Undisputed Facts
• Plaintiff was involved in a motor vehicle accident on or around July 9, 2011. Motion [#24] at 2; Compl. [#3] ¶ 5.
• Plaintiff suffered injuries as a result of that motor vehicle accident. Motion [#24] at 2; Compl. [#3] ¶¶ 7-9.
• Plaintiff settled with the at-fault driver’s insurance company, State Farm, for the $100, 000 policy limits. Motion [#24] at 2; Compl. [#3] ¶ 11.
• Plaintiff alleges that the $100, 000 payment did not fully compensate him for his injuries. Motion [#24] at 2; Compl. [#3] ¶ 12.
• Plaintiff notified Defendant of a possible underinsured motorist claim on August 3, 2011. Motion [#24] at 2; Motion, Ex. B at 2.
• Plaintiff filed his Complaint on August 21, 2014. Motion [#24] at 2; see ...