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Farris v. Ohio Security Insurance Co.

United States District Court, D. Colorado

December 19, 2016

DAWN FARRIS, Plaintiff,


          Gordon P. Gallagher, United States Magistrate Judge

         This matter comes before the Court on the following motion: Defendant's motion for summary judgment (ECF #33)[1], Plaintiff's response (ECF #34) and Defendant's reply (ECF #39). This motion has been referred to this Magistrate Judge for recommendation. (ECF #42).[2]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.


         On 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 coverage.

         Plaintiff 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 dispute.

         Plaintiff's 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.

         Defendant 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.

         Standard of Review

         A 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 (1986).

         The 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. 1985).

         The 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).

         The Ohio Security Policy

         The 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.

         The 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 ...

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