United States District Court, D. Colorado
RECOMMENDATION REGARDING DEFENDANT'S MOTION FOR
P. Gallagher, United States Magistrate Judge
matter comes before the Court on the following motion:
Defendant's motion for summary judgment (ECF
#33), Plaintiff's response (ECF #34) and
Defendant's reply (ECF #39). This motion has been
referred to this Magistrate Judge for recommendation. (ECF
#42).The Court has reviewed the pending motion,
response, reply and all attachments. The Court has also
considered the entire case file, the applicable law, and is
sufficiently advised in the premises. A Recommendation as to
Plaintiff's motion for certification of question of law
to the Colorado Supreme Court pursuant to C.A.R. 21.1 (ECF
#35), also referred to me and which is to some extent
intertwined with this motion, will be filed separately. Oral
argument is not necessary for resolution of these matters. I
respectfully recommend that Defendant's motion for
summary judgment be GRANTED.
September 5, 2014, Ernie Farris died in a single vehicle
accident while riding on the back of an all-terrain vehicle
(“ATV”) which was being driven by Jason Baca on a
public roadway in Mesa County, Colorado. After exhausting
other insurance sources, see infra, Plaintiff, the
widow of Mr. Farris, sought coverage for uninsured
motorist/under insured motorist, UM/UIM (hereinafter
“UIM” for simplicities' sake) benefits from
Defendant. After being rebuffed, Plaintiff filed suit
asserting two claims, declaratory judgment and breach of
contract, under the theory that a business auto policy issued
to EF, Inc. should have afforded UIM coverage in this
instance. The accident was not business related to EF, Inc.,
the ATV was not insured under the policy and Jason Baca had
no connection to the business. Defendant did not pay UIM
filed suit in Mesa County District Court on February 24, 2016
and the action was later removed to this Court. The parties
are diverse and the amount in question is in excess of $75,
000.00 thus giving rise to Federal jurisdiction. The
substantive law of the State of Colorado governs this
first claim is that declaratory judgment to reform the policy
is necessary under the theory that the policy must provide
UIM benefits to “at least one class of persons without
regard to vehicle occupancy.” (ECF #7, p. 14, para.
101). Plaintiff believes that the policy is in contravention
of Colorado law for such failure and that reform is the
appropriate remedy. Plaintiff's second claim for relief
is for breach of contract for failing to afford UIM coverage.
seeks summary judgment claiming that the decedent was not
afforded coverage as an insured under the policy.
Additionally, Defendant posits that the ATV was not a motor
vehicle under Colorado law thus not qualifying as an
uninsured motor vehicle.
motion for summary judgment serves the purpose of testing
whether a trial is required. Heideman v. S. Salt Lake
City, 348 F.3d 1182, 1185 (10th Cir. 2003). The Court
shall grant summary judgment if the pleadings, depositions,
answers to interrogatories, admissions, or affidavits show
there is no genuine issue of material fact, and the moving
party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c). A fact is material if it might affect the
outcome of the suit under the governing substantive law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
moving party bears the initial responsibility of providing to
the Court the factual basis for its motion. Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). “The moving
party may carry its initial burden either by producing
affirmative evidence negating an essential element of the
nonmoving party's claim, or by showing that the nonmoving
party does not have enough evidence to carry its burden of
persuasion at trial.” Trainor v. Apollo Metal
Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002).
Only admissible evidence may be considered when ruling on a
motion for summary judgment. World of Sleep, Inc. v.
La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir.
non-moving party has the burden of showing there are issues
of material fact to be determined. Celotex, 477 U.S.
at 322. That is, if the movant properly supports a motion for
summary judgment, the opposing party may not rest on the
allegations contained in his complaint, but must respond with
specific facts showing a genuine factual issue for trial.
Fed.R.Civ.P. 56(e); Scott v. Harris, 550 U.S. 372,
380 (2007) (“[t]he mere existence of some
alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment;
the requirement is that there be no genuine issue of
material fact.”) (emphasis in original)
(citation omitted); see also Hysten v. Burlington
Northern & Santa Fe Ry., 296 F.3d 1177, 1180 (10th
Cir. 2002). These specific facts may be shown
“‘by any of the kinds of evidentiary materials
listed in Rule 56(c), except the mere pleadings
themselves.'” Pietrowski v. Town of
Dibble, 134 F.3d 1006, 1008 (10th Cir. 1998) (quoting
Celotex, 477 U.S. at 324). “[T]he content of
summary judgment evidence must be generally admissible and .
. . if that evidence is presented in the form of an
affidavit, the Rules of Civil Procedure specifically require
a certain type of admissibility, i.e., the evidence
must be based on personal knowledge.” Bryant v.
Farmers Ins. Exch., 432 F.3d 1114, 1122 (10th Cir.
2005). “To avoid summary judgment, the nonmovant must
establish, at a minimum, an inference of the presence of each
essential element essential to the case.´ Bausman
v. Interstate Brands Corp., 252 F.3d 1111, 1115
(10th Cir. 2001) (citation omitted). “The
court views the record and draws all inferences in the light
most favorable to the non-moving party.” Pepsi-Cola
Bottling Co. of Pittsburg, Inc. v. Pepsico, Inc., 431
F.3d 1241, 1255 (10th Cir. 2005).
Ohio Security Policy
Court has been provided with policy number BAS (15) 55 73 09
37 with coverage provided by Defendant Ohio Security
Insurance Company and which was issued on 3/21/2014. (ECF
#33-2, p. 10). The named insured is EF INC, the named insured
is listed as corporation and the insured business is listed
as flow tester. Id.
listed coverages are as follows:
Liability Insurance, covered auto symbols 7, 8, and 9;
Medical payments, covered auto symbol 7;
Uninsured motorist, covered auto symbol 7.
Id. at p. 12.
The covered vehicle is one 2003 ...