United States District Court, D. Colorado
T. Varholak United States Magistrate Judge
matter is before the Court on Plaintiff's Motion for
Leave to Amend to Add Claim for Exemplary Damages (the
“Motion”) [#37]. The Motion has been referred to
this Court. [#38] This Court has carefully considered the
Motion, related briefing, the case file, and the applicable
case law, and has determined that oral argument would not
materially assist in the disposition of the Motion. For the
following reasons, the Motion is GRANTED.
January 6, 2016, Plaintiff Theresa Schimek was involved in a
motor vehicle accident caused by non-party Elizabeth Wynkoop.
[#1 at ¶¶ 6-7] Ms. Wynkoop was driving on the wrong
side of the highway, resulting in a head-on collision between
Plaintiff's car and Ms. Wynkoop's car. [Id.
at ¶¶ 8-9] Ms. Wynkoop died at the scene, and
Plaintiff was transported to a local hospital. [Id.
at ¶ 9] Plaintiff contends that she suffered
“significant damages from the collision including past
and future medical expenses, emotional distress, and pain and
suffering.” [Id. at ¶ 18]
time of the accident, Ms. Wynkoop had a liability insurance
policy with a $50, 000 limit through non-party Bristol West
Insurance, and Plaintiff had a $500, 000 underinsured
motorist policy underwritten by Defendant Owners Insurance
Company. [Id. at ¶¶ 5, 10; #26] Defendant
was notified of the accident on January 7, 2016, and the
claim was assigned to Korrie Cole, a Field Claim
Representative for Defendant. [#42-1 at ¶¶ 1, 6;
#43-2 at 34]
letter dated April 26, 2016, Plaintiff's counsel notified
Defendant of a possible underinsured motorist claim. [#42-1
at ¶ 10] On June 28, 2016, Plaintiff's counsel
provided Defendant with a copy of Plaintiff's demand
letter to Wynkoop's insurer, which made a demand for
$335, 000, and the final settlement offer from Wynkoop's
insurer. [#42-1 at ¶ 14; #42-3 at 5] On July 21, 2016,
Defendant provided its consent for Plaintiff to settle with
Ms. Wynkoop's insurer for less than the policy limits and
requested additional documentation in support of
Plaintiff's demand. [#42-1 at ¶ 15; 43-2 at 5] On
August 10, 2016, Plaintiff's counsel provided Defendant
with additional documentation in support of her claim and
requested “a good faith offer to settle” the
uninsured motorist claim by August 19, 2016. [#42-1 at ¶
16; #43-2 at 3] Ms. Cole requested 30 days to review the
additional documentation and Plaintiff's counsel agreed.
[#43-2 at 3]
valued Plaintiff's total damages at $52, 500 and thus, on
August 24, 2016, extended a settlement offer of $2, 500
(having subtracted the $50, 000 limit of Ms. Wynkoop's
policy) to settle the uninsured motorist claim. [#42-1 at
¶ 22; #43-2 at 2-3] Plaintiff filed the instant lawsuit
on August 30, 2016, asserting the following three claims for
relief: (1) breach of insurance contract, (2) common law bad
faith breach of contract; and (3) violations of
Colorado's insurance regulations, Colorado Revised
Statute §§ 10-3-1115 and 10-3-1116. [#1] On
November 2, 2016, the Court entered a Scheduling Order, which
set December 1, 2016 as the deadline for the joinder of
parties and amendment of pleadings. [#25 at 7]
30, 2017, after the parties had conducted substantial
discovery, Plaintiff filed the instant motion seeking leave
to amend her complaint to add a claim for exemplary damages
as additional relief for her common law bad faith breach of
contract claim. [#37 at 1-2; #43 at 11] On June 14, 2017,
Defendant filed its opposition brief responding to the
Motion. [#42] Plaintiff filed a Reply in support of the
Motion on June 21, 2017. [#43]
the deadline for the amendment of pleadings established by a
scheduling order has expired, a party seeking leave to amend
“must demonstrate (1) good cause for seeking
modification under Fed.R.Civ.P. 16(b)(4) and (2) satisfaction
of the Rule 15(a) standard” for amending pleadings.
Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1247
(10th Cir. 2015) (quoting Gorsuch, Ltd., B.C. v. Wells
Fargo Nat'l Bank Ass'n, 771 F.3d 1230, 1240
(10th Cir. 2014)).
Rule of Civil Procedure 16(b)(4) allows modification of a
scheduling order “only for good cause and with the
judge's consent.” “Demonstrating good cause
under the rule ‘requires the moving party to show that
it has been diligent in attempting to meet the deadlines,
which means it must provide an adequate explanation for any
delay.'” Strope v. Collins, 315 F.
App'x 57, 61 (10th Cir. 2009) (quoting Minter v.
Prime Equip. Co., 451 F.3d 1196, 1205 n.4 (10th
Cir. 2006)); see Lehman Bros. Holdings Inc. v. Universal
Am. Mortg. Co., 300 F.R.D. 678, 681 (D. Colo. 2014).
“In practice, this standard requires the movant to show
the scheduling deadlines cannot be met despite [the
movant's] diligent efforts.” Gorsuch,
Ltd., 771 F.3d at 1240 (quotations omitted).
“Rule 16's good cause requirement may be satisfied,
for example, if a plaintiff learns new information through
discovery or if the underlying law has changed.”
Id. On the other hand, “[i]f the plaintiff
knew of the underlying conduct but simply failed to raise
tort claims, [ ] the claims are barred.” Id.
to Federal Rule of Civil Procedure 15(a)(2), the Court is to
freely allow amendment of the pleadings “when justice
so requires.” The grant or denial of an opportunity to
amend is within the discretion of the Court, but
“outright refusal to grant the leave without any
justifying reason appearing for the denial is not an exercise
of discretion; it is merely abuse of that discretion and
inconsistent with the spirit of the Federal Rules.”
Foman v. Davis, 371 U.S. 178, 182 (1962).
“Refusing leave to amend is generally only justified
upon a showing of undue delay, undue prejudice to the
opposing party, bad faith or dilatory motive, failure to cure
deficiencies by amendments previously allowed, or futility of
amendment.” Frank v. U.S. West, Inc., 3 F.3d
1357, 1365 (10th Cir. 1993).
to Colorado law, a request for “exemplary damages . . .
may not be included in any initial claim for relief”
but rather may be asserted “by amendment to the
pleadings only after the exchange of initial disclosures . .
. and the plaintiff establishes prima facie proof of a
triable issue.” Colo. Rev. Stat. 13-21-102(1.5)(a). In
order to obtain exemplary damages, a plaintiff must prove
that “the injury complained of is attended by
circumstances of fraud, malice, or willful and wanton
conduct.” Colo. Rev. Stat. 13-21-102(1)(a). Pursuant to
the statute, willful and wanton conduct “means conduct
purposefully committed which the actor must have realized as
dangerous, done heedlessly and recklessly, without regard to
consequences, or of the rights and safety of others,
particularly the plaintiff.” Colo. Rev. Stat.
does not argue that Plaintiff lacks good cause for seeking to
amend the Complaint to add a claim for exemplary damages
after the deadline for the amendment of pleadings set in the
Scheduling Order. As noted above, Colorado law does not allow
a plaintiff to assert a claim for exemplary damages in the
initial pleading, but rather requires the plaintiff to make a
prima facie offer of proof-which often requires the
plaintiff to obtain evidence through discovery-to obtain
leave to add a claim for exemplary damages. ...