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Progressive Casualty Insurance Co. v. Taggart & Associates, Inc.

United States District Court, D. Colorado

February 1, 2017

PROGRESSIVE CASUALTY INSURANCE COMPANY, Plaintiff,
v.
TAGGART & ASSOCIATES, INC., Defendant.

          ORDER

          KRISTEN L. MIX MAGISTRATE JUDGE

         This matter is before the Court on Plaintiff's Motion for Summary Judgment [#34][1](the “Motion”), and on Defendant's Amended Cross-Motion for Summary Judgment [#50] (the “Cross-Motion”). Defendant filed a Response [#37] in opposition to the Motion, and Plaintiff filed a Reply [#44]. Plaintiff filed a Response [#51] to Defendant's Cross-Motion, and Defendant filed a Reply [#52]. The Court has reviewed the Motions, Responses, Replies, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Motion [#34] is DENIED and the Cross-Motion [#50] is GRANTED.

         I. Background

         The facts are largely undisputed. Plaintiff entered into a Producer's Agreement with Defendant, which permitted Defendant “to solicit, provide quotes, receive applications, bind coverage, and collect and provide receipts for premiums for authorized insurance products . . .” Producer's Agreement [#34-1] at 1. The Producer's Agreement also provided that Defendant was obligated to “retain in an orderly fashion and for the period specified in the Underwriting Requirements . . . selections and rejections of optional coverage . . .” Id. at 2. The Underwriting Requirements incorporate a document titled “Progressive Retention Schedule for Signed Policy Documents Maintained by Producers, ” which provides that the retention period “begins to run when the final policy or renewal has cancelled or expired or any claim associated with that policy has closed, whichever is later.” Progressive Retention Schedule [#34-2] at 1.

         Pursuant to the Producer's Agreement, Defendant processed an Application for Insurance on behalf of named insured Thomas Daly (“Daly”) in 2005. See Motion [#34] at 3; Response to Motion [#37] at 9-11; Application for Insurance [#34-3]. The Application for Insurance included a form titled “Uninsured/Underinsured Motorist Coverage-Rejection or Election of Lower Limits” (“UM/UIM Election Form”), which contains information about UM/UIM coverage, offers that the insured can purchase UM/UIM coverage up to the liability limits, and directs the insured to select the UM/UIM coverage he desires. Motion [#34] at 4; Response to Motion [#37] at 5; Application for Insurance [#34-3] at 6. The parties agree that Mr. Daly elected coverage of $50, 000 per person/$100, 000 per accident. See Scheduling Order [#26] at 5. Neither party asserts that Mr. Daly ever changed his level of insurance. See Aff. of Jill Skarda [#37-3] ¶ 14 (“Since 2005, I have spoken with Mr. Daly at least annually and emailed him more frequently to discuss his personal motor vehicle and motorcycle insurance needs. Over those years, Mr. Daly has renewed his . . . policy . . . year-to-year. At no time during those almost 11 years has he ever questioned or complained about the level of insurance coverage . . .”).

         On October 15, 2012, Mr. Daly was seriously injured while riding a motorcycle covered under the Progressive insurance policy. See Motion [#34] at 4; Response to Motion [#37] at 12. Mr. Daly subsequently submitted a UM/UIM claim to Plaintiff, disputing the $50, 000 UM/UIM benefits and requesting documentation that he had selected an amount lower than the $500, 000 maximum. Motion [#34] at 5; Response to Motion [#37] at 12. Plaintiff then requested such documentation from Defendant, who “failed to produce a signed copy of any form reflecting Mr. Daly's election of the lower Uninsured/Underinsured motorist coverage.” See Scheduling Order [#26] at 5. Defendant instead provided to Plaintiff the completed, but unsigned, Application, along with copies of e-mails between Defendant and Mr. Daly discussing Mr. Daly's elected coverage. See Motion [#34] at 5; Response to Motion [#37] at 13; see also Aff. of Julie Metish [#37-15] ¶ 3-4. Plaintiff paid Mr. Daly $500, 000 in UM/UIM benefits under the belief that failure to produce a copy of the signed election of lower UM/UIM coverage required reformation of the insurance policy to the statutory maximum. Motion [#34] at 7; Response to Motion [#37] at 13-14.

         Plaintiff is seeking reimbursement from Defendant in the amount of $450, 000, which is the difference between Mr. Daly's undisputed selection of $50, 000 coverage and the $500, 000 that Plaintiff ultimately paid Mr. Daly.

         Plaintiff filed the Motion [#34] on the basis that there is no genuine issue of material fact because the material facts are undisputed-in sum, that Defendant was required to perform its obligation under the Producer's Agreement to retain the UM/UIM Election Form, failed to do so, and Plaintiff suffered damages as a result because it was forced to pay the maximum UM/UIM coverage. Defendant argues, however, that it did not cause Plaintiff's damages because Defendant's inability to produce the signed UM/UIM Election Form did not legally obligate Plaintiff to reform Mr. Daly's insurance policy.

         Defendant filed the Cross-Motion [#50], agreeing that the relevant facts are undisputed, and that this case solely presents a question of law. The parties' briefing on the Cross-Motion for the most part reiterates the arguments contained in the briefing on the Motion.

         II. Legal Standards

         A. Motions for Summary Judgment

         The purpose of a motion for summary judgment pursuant to Fed.R.Civ.P. 56 is to assess whether trial is necessary. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Pursuant to Fed.R.Civ.P. 56(a), summary judgment should enter if the pleadings, the discovery and disclosure materials on file, and any affidavits show “that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” An issue is genuine if the evidence is such that a reasonable jury could resolve the issue in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it might affect the outcome of the case under the governing substantive law. Id.

         The burden is on the movant to show the absence of a genuine issue of material fact. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (citing Celotex, 477 U.S. at 323). When the movant does not bear the ultimate burden of persuasion at trial, the “movant may make its prima facie demonstration [of the absence of a genuine issue of material fact] simply by pointing out to the [C]ourt a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.” Id. at 671. If the movant carries the initial burden of making a prima facie showing of a lack of evidence, the burden shifts to the nonmovant to put forth sufficient evidence for each essential element of his claim such that a reasonable jury could find in his favor. See Anderson, 477 U.S. at 248; Simms v. Okla. ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999). The nonmovant must go beyond the allegations and denials of his pleadings and provide admissible evidence, which the Court views in the light most favorable to him. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir. 1995) (citing Celotex, 477 U.S. at 324). Conclusory statements based merely on conjecture, speculation, or subjective belief are not competent summary judgment evidence. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). The nonmoving party's evidence must be more than “mere reargument of [his] case or a denial of an opponent's allegation” or it will be disregarded. See 10B Charles Alan Wright, et al., Federal Practice and Procedure § 2738 at 356 (3d ed. 1998).

         B. ...


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