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Mackinney v. Allstate Fire and Casualty Insurance Co.

United States District Court, D. Colorado

August 8, 2017




         This matter comes before the court on Defendant Allstate Fire and Casualty Insurance Company's (“Defendant” or “Allstate”) Motion for Summary Judgment (or “Motion”). [#39, [1]filed May 26, 2017]. The Motion is before the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(c) and the Order Referring Case dated July 27, 2016, [#26]. Upon careful review of the Motion and associated briefing, the entire case file, the applicable law, and the comments offered during the July 27, 2017 Motion Hearing, the court GRANTS IN PART and DENIES IN PART the Motion for Summary Judgment.[2]


         Julie A. MacKinney (“Plaintiff” or “Ms. MacKinney”) initiated this matter by filing her Complaint in Jefferson County District Court on April 1, 2016. See [#3]. Plaintiff's Complaint alleges three state law causes of action against Defendant for: (1) breach of contract; (2) common law bad faith breach of an insurance contract (“bad faith”); and (3) violations of Colo. Rev. Stat. § 10-3-1115 Unreasonable Delay and Denial of Insurance Benefits (“statutory bad faith”). See [id. at 8-10]. Defendant removed the case to this court, based on diversity of citizenship pursuant to 28 U.S.C. § 1332, on June 14, 2016. [#1].

         On June 16, 2016, Allstate filed its Partial Motion to Dismiss, seeking dismissal of Plaintiff's breach of contract claim, Plaintiff's statutory bad faith claim, and any claim based on Allstate Policy Number 964296872 (the “Umbrella Policy”). See [#8]. The undersigned granted in part and denied in part Defendant's Motion to Dismiss, dismissing Plaintiff's breach of contract claim in its entirety, as well as her bad faith and statutory bad faith claims as they related to the Umbrella Policy only. [#30]. Thus, Plaintiff's remaining claims are her bad faith (as to the three remaining Allstate Insurance Policies) and statutory bad faith claims.[3] [Id.].

         Pursuant to the court's Scheduling Order [#28], Defendant filed the instant Motion on May 26, 2017. [#39]. Plaintiff filed a response and Defendant a reply. [#43; #45]. The undersigned held a Motion Hearing on the Motion for Summary Judgment on July 27, 2017, and took the Motion under advisement. [#46]. The Motion being ripe for resolution, the undersigned considers the Parties' arguments below.


         On October 6, 2010, Plaintiff was involved in a motor vehicle accident with Melissa Mott. [#39 at Movant's Statements of Material Facts (“MSMF”) ¶ 1; #43 at Counter-Statement of Facts (“CSF”) ¶ 1]. At the time of the accident, Allstate insured Plaintiff's vehicle under three policies that provided uninsured motorists coverage (“UIM”): (1) Policy Number 964294702 (the “Auto Policy”); (2) Policy Number 917977315 (the “KTM Policy”); and (3) 964296870 (the “Motorcycle Policy”). [#39 at MSMF ¶ 2; #43 at CSF ¶¶ 2-3]. The total UIM coverage under these policies was $150, 000 ($100, 000 under the Auto Policy and $25, 000 under the KTM and Motorcycle Policies, respectively). [#39 at MSMF ¶ 2; #43 at CSF ¶¶ 2-3]. Also at the time of the accident, Ms. Mott carried liability insurance of $100, 000. [#39 at MSMF ¶ 3; #43 at CSF ¶ 4].

         On February 25, 2014, Defendant granted Plaintiff permission to accept Ms. Mott's offer of $100, 000, which she received on March 12, 2014. [#39 at MSMF ¶ 4; #43 at CSF ¶¶ 4-5]. On June 16, 2014, Plaintiff, through counsel, made a demand for underinsured motorist (“UIM”) coverage to Allstate. [#43 at CSF ¶ 7]. Allstate then tendered the $150, 000 to Plaintiff on November 18, 2014. [#39 at MSMF ¶ 5; #43 at CSF ¶ 45].


         I. Summary Judgment

         Summary judgment is appropriate only 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., 41 F.3d 567, 569 (10th Cir. 1994). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or conversely, is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Carey v. U.S. Postal Serv., 812 F.2d 621, 623 (10th Cir. 1987). A fact is “material” if it pertains to an element of a claim or defense; a factual dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a reasonable party could return a verdict for either party. Anderson, 477 U.S. at 248. “A ‘judge's function' at summary judgment is not ‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014).

         If the moving party demonstrates an absence of evidence supporting an essential element of the opposing party's claims, the burden shifts to the opposing party to show that there is a genuine issue for trial. Celotex, 477 U.S. at 324. To satisfy this burden, the nonmovant must point to specific facts in an affidavit, deposition, answers to interrogatories, admissions, or other similar admissible evidence demonstrating the need for a trial. Id.; Mares v. ConAgra Poultry Co., 971 F.2d 492, 494 (10th Cir. 1992). “[A] mere ‘scintilla' of evidence will be insufficient to defeat a properly supported motion for summary judgment; instead, the nonmoving party must introduce some ‘significant probative evidence tending to support the complaint.'” Fazio v. City & County of San Francisco, 125 F.3d 1328, 1331 (9th Cir. 1997) (quoting Anderson, 477 U.S. at 249, 252). In reviewing a motion for summary judgment the court views all evidence in the light most favorable to the non-moving party. See Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).

         II. Evidence on Summary Judgment

         Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether she is ruling on a motion for summary judgment or for a directed verdict. The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor. Anderson, 477 U.S. at 255. However, it is well-settled that a court may only consider admissible evidence at summary judgment; it may not rely upon allegations in a Complaint. Barcikowski v. Sun Microsystems, Inc., 420 F.Supp.2d 1163, 1173 (D. Colo. 2006) (citing World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985)). In this case, the court must carefully consider the admissibility of evidence proffered by Plaintiff to rebut Defendant's Motion for Summary Judgment.

         Generally, hearsay is not admissible evidence. Fed.R.Evid. 802. Hearsay is a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement. Fed.R.Evid. 801(c). Rule 801(d) identifies statements that are not considered hearsay despite being made out of court and provides, in pertinent part:

(1) A Declarant-Witness's Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:
(A) is inconsistent with the declarant's testimony and was given under penalty of perjury at a trial, hearing, or other ...

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