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Kovac v. Farmers Insurance Exchangee

Court of Appeals of Colorado, First Division

January 12, 2017

Donna Kovac, Plaintiff-Appellant,
v.
Farmers Insurance Exchange, Defendant-Appellee.

          El Paso County District Court No. 15CV30945 Honorable Edward S. Colt, Judge

          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

          Wells, Anderson & Race, LLC, L. Michael Brooks, Jr., Brandi J. Pummell, Denver, Colorado, for Defendant-Appellee

          OPINION

          TAUBMAN, JUDGE

          ¶ 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.

          I. Background

         ¶ 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 acceptance."

         ¶ 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 April 4.

         ¶ 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.[1] Kovac received the funds several days later.

         ¶ 8 In March 2015, Farmers offered to settle Kovac's remaining claims for $80, 000. The parties could not reach a settlement.

          ¶ 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 ...


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