Paso County District Court No. 15CV30945 Honorable Edward S.
Gaddis, Kin, Herd & Craw, P.C., Thomas J. Herd, Colorado
Springs, Colorado; Walter H. Sargent, P.C., Walter H.
Sargent, Colorado Springs, Colorado, for Plaintiff-Appellant
Anderson & Race, LLC, L. Michael Brooks, Jr., Brandi J.
Pummell, Denver, Colorado, for Defendant-Appellee
1 This is a personal injury action arising out of an
underinsured motorist (UIM) claim brought by plaintiff, Donna
Kovac, against defendant, Farmers Insurance Exchange
(Farmers). On appeal, Kovac challenges the trial court's
grant of Farmers' summary judgment motion on the grounds
that Kovac's complaint was barred by the statute of
limitations. We reverse the trial court's summary
judgment and remand for further proceedings.
2 In October 2010, Kovac was seriously injured in a car
accident with Kevin Filipelli. It was undisputed that
Filipelli was at fault in the accident. Kovac's medical
expenses resulted in damages exceeding $1.4 million.
3 When the accident occurred, Filipelli was covered by
automobile liability insurance with Shelter Insurance Company
(Shelter) with a limit of $100, 000. Kovac was insured under
two different automobile insurance policies with Farmers.
4 On March 27, 2013, Shelter sent a written conditional offer
to pay Kovac $100, 000, the full extent of its policy
coverage, "to fully settle the claim against"
Filipelli. The letter continued, "If this amount is
acceptable, please send us the enclosed release signed."
5 Shelter's release form required Kovac and her husband
to acknowledge that they were voluntarily accepting the
agreement to fully and finally release all claims against
Filipelli for injuries and damages from the accident. Along
with the release form, Shelter included a check authorizing
payment of $100, 000 to Kovac and her law firm "upon
6 Kovac's lawyer received this letter and check on April
1, 2013. On April 2, Kovac's lawyer notified Farmers that
Shelter had tendered its policy limits, and he requested
Farmers' consent to settle, which Farmers granted in a
letter dated April 3 that Kovac's attorney received on
7 Kovac signed the release from Shelter and endorsed the
check on April 5, 2013. The check was then deposited in the
firm's COLTAF account. Kovac received the funds several days
8 In March 2015, Farmers offered to settle Kovac's
remaining claims for $80, 000. The parties could not reach a
9 On April 3, 2015, Kovac commenced this action for (1)
recovery of UIM benefits; (2) tortious bad faith breach of
contract; and (3) unreasonable delay and denial of insurance
benefits under sections 10-3-1115 and -1116, C.R.S. 2016.
10 Farmers moved for summary judgment on the grounds that,
because Shelter had presented its offer of a settlement check
to Kovac's attorney on or before April 2, 2013, the
statute of limitations ran on Kovac's claim on April 2,
2015. The trial court granted summary judgment in favor of
Farmers, concluding that regardless of when Kovac accepted
the settlement offer from Shelter, her attorney had received
the check not later than April 2, 2013, so the ...