United States District Court, D. Colorado
A. BRIMMER United States District Judge
matter is before the Court on defendant's motion for
partial summary judgment [Docket No. 26] and defendant's
motion in limine [Docket No. 27]. The Court has jurisdiction
pursuant to 28 U.S.C. § 1332.
Factual Background 
Nicholas Carnival is a Colorado State Patrol officer. Docket
No. 26 at 2, ¶ 1. On May 12, 2014, he was injured in a
motor vehicle accident while working. Id. As a
result, he was entitled to workers' compensation
benefits. Id., ¶ 3. The driver of the other
vehicle, who was at fault, had a motor vehicle insurance
policy with a limit of $100, 000. Id., ¶ 2.
Plaintiff had purchased an automobile insurance policy from
defendant GEICO Casualty Company that included underinsured
motorist (“UIM”) coverage with a $50, 000 limit
per individual. Id. at 3, ¶ 5 (citing Docket
No. 26-3 at 3). Such UIM policies provide additional
insurance that “cover[s] the difference, if any,
between the amount of the limits of any legal liability
coverage and the amount of the damages sustained . . . up to
the maximum amount of the coverage obtained.” Colo.
Rev. Stat. § 10-4-609(1)(c).
received $97, 882.07 in workers' compensation benefits.
Docket No. 26 at 2-3, ¶ 3 (citing Docket No. 26-2 at 1,
8-9). On June 22, 2015, Dr. Theodore Villavicencio performed
a medical examination as part of the workers'
compensation process. Id. Using the statutorily
required criteria, Dr. Villavicencio found that plaintiff had
a whole body impairment rating of 15%. Id. This 15%
disability rating was used as part of a statutory formula to
arrive at the $74, 585.79 benefit for permanent partial
disability (“PPD”). Docket No. 26-2 at 1.
Additionally, plaintiff's workers' compensation
benefits included $21, 043.33 for medical expenses and $2,
252.95 for temporary partial disability (“TPD”).
Docket No. 26-2 at 1.
August 21, 2015, plaintiff settled his claims against the
at-fault driver for the $100, 000 policy limit. Docket No. 26
at 2, ¶ 2 (citing Docket No. 26-1 at 4, 79:23-80:4).
That same day, plaintiff sent a letter to defendant offering
to settle for the UIM policy limit. Docket No. 26-5; see
also Docket No. 26-3 at 3.
claims adjuster evaluated plaintiff's claim and, without
reference to the workers' compensation settlement funds,
considered plaintiff to be “well compensated” by
the $100, 000 settlement with the at-fault driver's
insurance company despite the 15% whole person impairment
rating. Docket No. 36-8 at 3. Defendant sent plaintiff a
letter with a “nuisance offer” of $1, 000 without
explaining how defendant arrived at that figure. Id.
at 1; Docket No. 36-5 at 1. Settlement negotiations ensued.
counsel responded with a letter noting the workers'
compensation evaluation indicated permanent physical
impairment and stating, “any money my client receives
from the bodily injury provider, which only has a $100, 000
insurance policy, he has to return in subrogation [to the
workers' compensation insurer], at this moment,
approximately $95, 000.” Docket No. 36-4 at 1.
Defendant asked for documentation of the subrogated claim,
stating “it is our position that Mr. Carnival was well
compensated by the bodily injury carrier's policy limits
of $100, 000.00, ” and again offering $1, 000. Docket
No. 36-5. Plaintiff's counsel responded by citing Colo.
Rev. Stat. § 10-4-609 and arguing that the entire $97,
882.07 was subrogated. Docket No. 36-6 at 1. Defendant gave
permission for plaintiff to settle with the at-fault
driver's insurance and requested plaintiff's counsel
make contact “once settlement is reached regarding the
underinsured motorist claim.”
between GEICO claims handlers indicates there was uncertainty
about whether plaintiff would be required to repay the entire
amount of his workers' compensation settlement from the
proceeds of his settlement with the at-fault driver. Docket
No. 36-8. Defendant's claims adjuster expressed doubt
that plaintiff would have to repay the full amount, but
nevertheless reasoned that plaintiff received “$100k
from the [at-fault driver's insurance] carrier, and $97,
882.07 from work comp, so $197, 882.07 total. Even if he has
to pay back work comp 100%, he's still walking away with
$102k, not just $2k like [plaintiff's] attorney is trying
to allege.” Id. at 1. Further exchanges
resulted in defendant raising its settlement offer to $5,
000, but maintaining that plaintiff's damages were
compensated by his settlement with the at-fault driver.
Docket No. 36-9 at 1. Defendant stated, “it is our
position that Mr. Carnival's $100, 000 liability
settlement fully covered his claimed specials of $43, 995.70
and over $55, 000 for any subjective non-economic losses,
which may already fully compensate him for his claimed
filed suit on October 26, 2015 in the District Court for
Jefferson County, Colorado. Docket No. 1-7. Plaintiff alleges
claims for breach of contract and unreasonable delay or
denial in payment of insurance benefits under Colo. Rev.
Stat. §§ 10-3-1115, 10-3-1116. Docket No. 5 at 4-5.
Defendant removed the case to this Court on November 24,
2015. Docket No. 1.
seeks damages for “‘past, present and future
medical expenses, for past, present and future pain and
suffering, for personal injuries, for emotional distress, and
for other non-economic damages.'” Docket No. 26 at
4, ¶ 9. Plaintiff claims $49, 470.90 in medical expenses
resulting from the accident. Id., ¶ 10. Despite
plaintiff's injuries, he has continued to work full time
after the accident and does not claim any lost wages through
this case. Id. at ¶ 8 (citing Docket No. 26-4
at 2 (“Plaintiff is not claiming a wage loss”)).
March 29, 2016, defendant filed the pending motions.
Defendant's motions address the interaction between the
workers' compensation insurance benefits received by
plaintiff and the UIM coverage provided by defendant. The
summary judgment motion requests the Court to enter
“partial summary judgment on Plaintiffs tort-based UIM
claim for the TPD and PPD benefits paid by the workers'
compensation insurer, as well on as any aspect of Plaintiffs
extra-contractual claim based upon those same TPD and PPD
amounts.” Docket No. 26 at 10. On March 15, 2017,
defendant filed a notice stating that it “withdraws its
request for exclusion of evidence at trial of Plaintiff's
workers' compensation temporary partial disability (TPD)
and permanent partial ...