United States District Court, D. Colorado
RECOMMENDATION REGARDING PLAINTIFF'S MOTION FOR
CERTIFICATION OF QUESTION OF LAW TO THE COLORADO SUPREME
COURT PURSUANT TO C.A.R. 21.1
P. Gallagher, United States Magistrate Judge
matter comes before the Court on the following motion:
Plaintiff's motion for certification pursuant to C.A.R.
21.1 (ECF#35),  This motion has been referred to this
Magistrate Judge for recommendation. (ECF #42). The Court has
reviewed the pending motion, response (ECF #38), reply (ECF
#41) and any attachments. The Court has also considered the
entire case file, the applicable law, and is sufficiently
advised in the premises.
argument is not necessary for resolution of these matters.
This Magistrate Judge recommends that the motion be DENIED.
has filed a motion for summary judgment in this action (ECF
#33) which will be addressed in a separate recommendation to
the presiding Article III Judge in this action, the Honorable
Raymond Moore. However, that recommendation is inextricably
intertwined with this issue.
frames the issue stating that there is a need for
certification pursuant to C.A.R. 21.1 for the following
reason(s): Plaintiff believes that DeHerrera v. Sentry
Ins. Co., 30 P.3d 167 (Colo. 2001) mandates provision of
UIM insurance to at least one class of individuals not
dependent on vehicle occupancy and that the aforementioned
case is clear with regard to that proposition. However, if
the Court does not determine that such clarity exists,
Plaintiff moves for C.A.R. 21.1 certification in order to
receive a determination as to the scope of DeHerrera
from the Colorado Supreme Court.
21.1 allows for certification of a question to the Colorado
Supreme Court “[i]f there is involved in any proceeding
before it questions of law of this state which may be
determinative of the case then proceeding in the certifying
court as and to which it appears to the certifying court
there is no controlling precedent in the decisions of the
Supreme Court.” C.A.R. 21.1 (a). “Certification
is not to be routinely involved whenever a federal court is
presented with an unsettled question of law.”
Armijo v. Ex Cam, Inc., 843 F.2d 406, 207
(10th Cir. 1988). “Federal courts bear a
duty to decide questions of state law when necessary to
render a judgment.” Colony Ins. Co. v. Burke,
83 F.3d 1222, 1235 (10th Cir. 2012) (citations
is to be applied in such certification and the court shall
take a clear and principled course if such is
“reasonable clear.” Id. at 1235-36.
Indeed, under the diversity statutes the federal courts have
the duty to decide questions of state law even if difficult
or uncertain. Thus, I must apply judgment and restraint
before certifying, and will not trouble our sister state
courts every time an arguably unsettled question of state law
comes across my desk.
action, I find the law of the State of Colorado sufficiently
clear to allow me to make a recommendation with regard to
Defendant's motion for summary judgment without the need
for certification. As is set forth in my recommendation (ECF
#45) the law was sufficiently clear in Carolina Casualty
Insurance Company v. Mountain States Hotshot, LLC, 2016
WL 398162 *3, (D. Colo. 2016) for the Honorable Judge Matsch
to make a determination in a very similar matter and I find
no greater need to trouble the Colorado Supreme Court under
these facts and circumstances. I further believe that this
recommendation need be read in concert with my recommendation
with regard to the motion to dismiss to get the entire
reasoning for why I believe that the motion to dismiss can be
determined without such certification.
those reasons, I respectfully recommend that the motion for
certification be DENIED.
 “(ECF #35)” is an example
of the convention I use to identify the docket number
assigned to a specific paper by the Court's case
management and electronic case filing system (CM/ECF). I use
this convention throughout this Recommendation.
 Be advised that all parties shall have
fourteen (14) days after service hereof to serve and file any
written objections in order to obtain reconsideration by the
District Judge to whom this case is assigned. Fed.R.Civ.P.
72(b). The party filing objections must specifically identify
those findings or recommendations to which the objections are
being made. The District Court need not consider frivolous,
conclusive or general objections. A party's failure to
file such written objections to proposed findings and
recommendations contained in this report may bar the party
from a de novo determination by the District Judge of the
proposed findings and recommendations. United States v.
Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. §
636(b)(1). Additionally, the failure to file written
objections to the proposed findings and recommendations
within fourteen (14) days after being served with a copy may
bar the ...