United States District Court, D. Colorado
RECOMMENDATION REGARDING DEFENDANT'S MOTION FOR
JUDGMENT ON THE PLEADINGS
B. Shaffer Magistrate Judge
matter comes before the court on Defendant Allstate Property
and Casualty Company's (hereinafter
“Allstate”) Motion for Judgment on the Pleadings
(doc. #32), filed on March 2, 2017. Judge Moore referred the
motion to this Magistrate Judge pursuant to a Memorandum.
Doc. #33. Allstate argues that Plaintiff Miriam
Zevallos's claims for Uninsured and Underinsured
Motorists (“UM/UIM”) benefits are barred by a
release that she executed with Allstate in 2014 and that the
Colorado Supreme Court's decision in Calderon v.
American Family Mutual Insurance Co., 383 P.3d
676 (Colo. 2016) can be applied only prospectively.
Zevallos filed her Response (doc. #37) to the motion on March
23, 2017, which was followed by Defendant's Reply (doc.
#38) on April 6, 2017. On May 3, 2017, I heard oral argument.
Doc. #43 (transcript). The court has also received from
Allstate three notices of supplemental authority. Docs.
#44-46. For the following reasons, I recommend granting the
motion and dismissing this action.
2007 amendment, section 10-4-609 of the Colorado insurance
code has provided:
The amount of the [Uninsured Motorist/Underinsured Motorist]
coverage available pursuant to this section shall not be
reduced by a setoff from any other coverage, including, but
not limited to, legal liability insurance, medical payments
coverage, health insurance, or other uninsured or
underinsured motor vehicle insurance.
§ 10-4-609(1)(c). Plaintiff alleges that despite this
statute, “Defendants uniformly reduce amounts paid to
their insureds under their Uninsured Motorist/Underinsured
Motorist (‘UM/UIM') coverages by setoffs from their
medical payments (‘MedPay') coverages under their
respective automobile policies.” Doc. #5, Complaint
Plaintiff Zevallos was insured by Allstate with a policy of
insurance that included $5, 000.00 of MedPay coverage and
$50, 000/$100, 000 of UM/UIM coverage [the
“Policy.”] This policy constitutes a contract.
Zevallos was injured by an underinsured motorist on August
20, 2012. As a result of her injuries, … Zevallos
submitted claims under her MedPay and UM/UIM coverages.
Allstate paid MedPay benefits on … Zevallos's
behalf. Allstate paid … Zevallos UM/UIM benefits of
Doc. #5, Complaint ¶¶ 20-25 (paragraph breaks
alleges that the $2700 it paid to Plaintiff was in settlement
of Plaintiff's claim for UM/UIM benefits under the
Policy. Doc. #31, Answer ¶ 25. In consideration of the
settlement payment, on September 26, 2014, Plaintiff released
any and all liability and from any and all contractual
obligations whatsoever under the coverage designated above
[underinsured motorist insurance - Coverage SU] of [the
Policy] . . . and arising out of bodily injury sustained by
Miriam Zevallos due to an accident on or about the 20th day
of August, 2012.
Doc. #31-2, Answer Ex. B (Release) at 2.
alleges that “[i]n reaching the $2, 700.00 UM/UIM
benefit number, Allstate explicitly subtracted the $5, 000.00
in MedPay coverage from its evaluation.” Doc. #5,
Complaint ¶ 26. With respect to this assertion, Allstate
“admits only that, in evaluating Zevallos's
underinsured motorist claim, Allstate Property considered,
pursuant to the express terms and conditions of the Policy,
among other things, the amount paid in Medical Payment
benefits as an offset in establishing a range of settlement
value.” Doc. #31, Answer ¶ 26.
further alleges that “Allstate confirmed this
subtraction on June 11, 2014, in a letter regarding …
Zevallos' claim.” Doc. #5, Complaint ¶ 27.
Plaintiff did not attach the referenced letter to the
Complaint, but Allstate attaches it to its Answer. Doc.
#31-3. The letter states among other things:
Based on the information provided, your office has submitted
approximately $69, 663.63 in medical bills to date. Of the
amount submitted, I considered $68, 737 in the evaluation
based on usual and customary charges. Because of the
non-duplication of benefits clause, the specials were reduced
by $5000 that was paid under Medical Payments coverage.
Additionally, I evaluated Ms. Zevallos' non-economic
damages in the amount of $28, 000, making the total
evaluation $91, 737. Even if I allowed the entire amount of
specials, $69, 663.63, her evaluation is still within ...