United States District Court, D. Colorado
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE
case arises out of an insurance coverage dispute and concerns
whether Defendant, Geico Casualty Company, breached its
contractual duty when it refused to settle a claim invoked
against Plaintiff, Jodie Thane, by a third party.
Plaintiff's Complaint also asserts a claim for the
unreasonable denial of a covered benefit under Colo. Rev.
Stat. §§ 10-3-1115 and 10-3-1116. This matter is
before the Court on Defendant's Motion for Summary
Judgment. (Doc. # 25.) Defendant argues for the dismissal of
both of Plaintiff's Claims for Relief because, Defendant
contends, they are barred by applicable statute of
limitations periods. (Id.) For the following
reasons, the Court denies Defendant's Motion.
relevant facts, when viewed in the light most favorable to
Plaintiff, are as follows. See Allen v. Muskogee,
119 F.3d 837, 839-40 (10th Cir. 1997) (reviewing court must
view the evidence in the light most favorable to the
nonmoving party); Kidd v. Taos Ski Valley, Inc., 88
F.3d 848, 851 (10th Cir. 1996) (same). On May 25, 2012,
Plaintiff Jodie Thane's son, Aaron Thane, Brandon Hanson,
and Robert Thane were involved in an automobile accident with
Kenneth Farrell, where Mr. Farrell was injured and Aaron
Thane was killed. (Doc. # 4 at ¶ 5.) Plaintiff was
insured by Defendant through a personal automobile insurance
policy with liability limits of $50, 000 per person/$100, 000
per occurrence. (Id. at ¶ 6.) As a result of
his injuries sustained in the accident, Mr. Farrell requested
that Geico pay him the $50, 000 liability limit.
(Id. at ¶ 7.) In exchange for payment of that
limit, Mr. Farrell agreed to release Jodie Thane from all
liability for the accident. (Id.) Geico refused to
pay the $50, 000 liability limit, as requested. (Id.
at ¶ 8.) Robert Thane, Brandon Hanson, and the Estate of
Aaron Thane filed suit against Mr. Farrell, bringing claims
of negligence and negligence per se. (Doc. # 26 at 18.) Mr.
Farrell responded with claims against the Estate of Aaron
Thane for negligence and against Jodie Thane for negligent
entrustment. (Id.) It is undisputed that Geico
provided a defense to Ms. Thane in the underlying lawsuit.
(Doc. # 4 at ¶ 14.) During the course of litigating the
lawsuit, Mr. Farrell provided Geico with additional
opportunities to settle the claims against Jodie Thane in
exchange for payment of the $50, 000 liability limit. (Doc. #
4 at ¶ 9.) Geico again refused to do so. (Id.)
Thane's parents, Jodie and Todd Thane, subsequently filed
a separate personal injury and wrongful death action in the
Jefferson County District Court, which was consolidated into
12CV2852 on February 6, 2014. (Doc. # 26 at 15, 16.) The
case, in which liability and damages were disputed by all
parties, was tried before a jury beginning on July 28, 2014.
(Id. at 18.) On August 6, 2014, the jury returned a
verdict in favor of Mr. Farrell and against Jodie Thane and
the Estate of Aaron Thane in the amount of $1.5 million.
(Id. at 18, 19.) On August 29, 2014, the district
court entered an order of judgment on the jury verdict after
reducing the non-economic damages award from $500, 000 to
$468, 010 in accordance with Colo. Rev. Stat. §
13-21-102.5(3)(c). (Id. at 19.) On September 5,
2014, Jodie Thane and the Estate of Aaron Thane filed a
motion for a new trial on all issues of liability and damages
under Colo. R. Civ. P. 59(d)(5). (Id. at 30-40.) On
November 7, 2014, the district court denied the motion for
new trial but ordered remittitur of Mr. Farrell's
economic damages from $500, 000 to $36, 216.49, which Mr.
Farrell did not contest. (Id. at 18-26; Doc. # 4 at
¶¶ 12, 13.)
December 24, 2014, Defendant funded an appeal from the
judgment on behalf of Jodie Thane and the Estate of Aaron
Thane. (Doc. # 26 at 42-50; Doc. # 4 at ¶ 14.) No
supersedeas bond was filed during the appeal. (Doc. # 27.) On
March 10, 2016, the Colorado Court of Appeals affirmed the
district court's ruling. (Doc. # 4 at ¶ 14.) On
November 7, 2016, Plaintiff Jodie Thane initiated this
lawsuit in the Denver County District Court against Defendant
Geico Casualty Company for bad faith breach of an insurance
contract and unreasonable denial of payment for benefits owed
in violation of Colo. Rev. Stat. § 10-3-1115. (Doc. #
4.) On December 1, 2016, Defendant removed the case to
federal court. (Doc. # 1.) On January 25, 2017, Defendant
filed the instant motion for summary judgment asserting that
both claims are barred by the statute of limitations and must
be dismissed as a matter of law. (Doc. # 25.)
STANDARD OF REVIEW
judgment is appropriate “if the movant shows that 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). 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) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A
dispute is “genuine” if the evidence is such that
it might lead a reasonable jury to return a verdict for the
nonmoving party. Anderson 477 U.S. at 248. “To
defeat a motion for summary judgment, evidence, including
testimony, must be based on more than mere speculation,
conjecture, or surmise.” Bones v. Honeywell
Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).
moving party bears the initial burden of demonstrating an
absence of a genuine dispute of material fact and entitlement
to judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). In attempting to meet
this standard, a movant who does not bear the ultimate burden
of persuasion at trial need not disprove the other
party's claim; rather, the movant must simply point the
Court to a lack of evidence for the other party on an
essential element of that party's claim. Adler
144 F.3d at 671 (citing Celotex 477 U.S. at 325).
the movant has met its initial burden, the burden then shifts
to the nonmoving party to “set forth specific facts
showing that there is a genuine issue for trial.”
Anderson 477 U.S. at 256. The nonmoving party must
then go beyond its pleadings to satisfy its burden by
“set[ting] forth specific facts that would be
admissible in evidence in the event of trial from which a
rational trier of fact could find for the nonmovant.”
Adler, 144 F.3d at 671. “To accomplish this,
the facts must be identified by reference to affidavits,
deposition transcripts, or specific exhibits incorporated
ACCRUAL OF LIMITATIONS
party disputes that the pertinent statute of limitations for
Plaintiffs' claims is two years under Colo. Rev. Stat.
§ 13-80-102(1)(a). See also Wardcraft Homes, Inc. v.
Employers Mut. Cas. Co., 70 F.Supp.3d 1198, 1212 (D.
Colo. 2014) (“Bad faith actions must be
“commenced within two years after the cause of action
accrues.”). The crux of the matter in this case is the
date that Plaintiff's bad faith failure to settle claim
ripened into a workable cause of action which triggered the
clock on the statute of limitations - in other words, when
the cause of action accrued.
Colo. Rev. Stat. § 13-80-108(1), a cause of action
begins to accrue “on the date both the injury and its
cause are known or should have been known by the exercise of
reasonable diligence.” Plaintiff argues that the
accrual date was March 10, 2016 - the date when the Colorado
Court of Appeals affirmed the district court's ruling and
made the judgment final and non-appealable. (Doc. # 37 at 3.)
Defendant, however, maintains that limitations began to run
on the date when the trial court's judgment could have
been executed. (Doc. # 25 at 5.) Defendant argues ...