United States District Court, D. Colorado
Brooke Jackson United States District Judge
matter is before the Court on defendant Federated Mutual
Insurance Company's (“Federated”) motion for
summary judgment. ECF No. 45. For the reasons below, the
Court GRANTS that motion.
facts of this case are largely undisputed. On December 9,
2013 plaintiffs James and Diane Jarrell were involved in a
car accident with Mr. Brian Ness. Amended Complaint, ECF No.
42, at ¶¶7, 15-16. At the time of the accident,
plaintiffs were driving a vehicle owned by Grand Auto, Inc.
(“Grand Auto”)-a car dealership that provided Mr.
and Mrs. Jarrell with a “loaner” car while it
serviced plaintiffs' vehicle in its garage. Id.
at ¶7; see Dep. of Nicholas Kern, ECF No. 47-1,
at 14:16-23. Defendant Federated issued Grand Auto the
automobile insurance policy covering these loaner cars.
See Decl. of Cynthia Carlheim, ECF No. 45-1, at
to issuing Grand Auto this “garage operations”
automobile insurance policy, Federated gave the company the
option to purchase coverage for damages caused by
uninsured/underinsured motorists (“UM/UIM”
coverage). See id. On February 13, 2013 Grand Auto
elected to obtain $500, 000.00 of coverage for
“directors, officers, partners or owners of Grand
Auto” and their family members. Id. at
¶3; see also Id. at 4 (UM/UIM coverage election
form). For “any other person who qualifies as an
insured” under the policy, Grand Auto explicitly
rejected UM/UIM coverage. Id.
“maxing out” Mr. Ness' automobile insurance
policy for damages they allegedly suffered from the accident,
plaintiffs each sought UM/UIM benefits under Grand Auto's
policy with Federated. See Mr. Jarrell's Notice
of Claim, ECF No. 42-3, at 1; Mrs. Jarrell's Notice of
Claim, ECF No. 42-4, at 1. Federated rejected their claims.
See ECF No. 42 at ¶45.
action, plaintiffs again seek those benefits. They admit that
they were not then and are not now “directors,
officers, partners or owners” of Grand Auto or family
members of those persons. ECF No. 47 at 13. Nevertheless,
they argue that Grand Auto's partial waiver of these
benefits for all other insureds is void as against public
policy, and that Federated's subsequent refusal to
provide them with UM/UIM benefits is unlawful. Id.
at 12-16. Alternatively, they contend that Grand
Auto's waiver of these benefits was ineffective, and that
plaintiffs are subsequently entitled to UM/UIM benefits.
Id. at 16-18.
filed suit against Federated in Colorado state court on
November 18, 2015. ECF No. 4. In their amended complaint,
which plaintiffs filed after defendants removed the case to
this Court, see ECF Nos. 1, 4, 42, plaintiffs assert five
claims for relief against Federated.Those claims include: two
claims for declaratory relief that argue that Federated's
rejection of UM/UIM benefits was improper and invalid (Counts
III and IV), a claim to recover those UM/UIM benefits (Count
V), and two claims for loss of consortium by each plaintiff
(Counts VI and VII). ECF No. 42 at ¶¶42-80.
answer to plaintiffs' amended complaint, Federated
asserts two counterclaims: a claim for declaratory relief
asserting that plaintiffs were not covered under the UM/UIM
provision of Grand Auto's policy, as well as an
alternative claim that, should this Court find that Grand
Auto's partial waiver was void or ineffective, that
plaintiffs are only entitled to the minimum amount of UM/UIM
coverage Federated is required to offer under Colorado law
($25, 000.00 per person/$50, 000.00 per accident). ECF No. 5
at ¶¶80-86. After filing its answer, Federated
filed a motion for summary judgment on February 17, 2017. ECF
No. 45. That motion has been fully briefed and is ripe for
review. See ECF Nos. 45, 47, 50.
STANDARD OF REVIEW
Rule 56, the Court may grant summary judgment if “there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The moving party has the burden to show
that there is an absence of evidence to support the nonmoving
party's case. Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986). The nonmoving party must “designate
specific facts showing that there is a genuine issue for
trial.” Id. at 324. A fact is material
“if under the substantive law it is essential to the
proper disposition of the claim.” Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). A
material fact is genuine if “the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). The Court will examine the factual
record and make reasonable inferences in the light most
favorable to the party opposing summary judgment.
Concrete Works of Colo., Inc. v. City & Cnty. of
Denver, 36 F.3d 1513, 1517 (10th Cir. 1994).
argues that Grand Auto's waiver of UM/UIM benefits for
individuals like Mr. and Mrs. Jarrell who were not
“directors, officers, partners or owners” of
Grand Auto or their family members, see ECF No. 15 at
¶6, was clear and unequivocal, ECF No. 45 at 7-9. They
go on to contend that there is no “public policy”
rationale preventing Grand Auto from doing exactly
that-electing to obtain UM/UIM coverage for certain
individuals while declining to pay to obtain coverage for
others. Id. at 12-18. Therefore, they argue, because
Grand Auto's waiver of UM/UIM coverage for individuals