United States District Court, D. Colorado
A. BRIMMER, UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff's Motion for
Summary Judgment [Docket No. 48]. The Court has jurisdiction
pursuant to 28 U.S.C. § 1332.
September 8, 2012, a car collided with the
motorcycle that plaintiff was driving in Wheat Ridge,
Colorado (“the accident”). Docket No. 3 at 1,
¶ 1; Docket No. 48 at 1. At the time of the accident,
plaintiff had four different insurance policies with
defendant. Docket No. 48 at 5, ¶ 2. Each of the four
insurance policies includes underinsured motorist coverage.
Id., ¶ 3.
following the accident, an ambulance took plaintiff to St.
Anthony's Hospital, where he was treated from September
8, 2012 through September 14, 2102. Docket No. 51-1 at 2. As
a result of the hospitalization, St. Anthony's charged
plaintiff $77, 945.68. Docket No. 51-1 at 7. On April 18,
2013, with defendant's permission, plaintiff entered into
a settlement in the amount of $100, 000 with the driver of
the car that hit him. Docket No. 48 at 4, ¶ 1.
24, 2014, at the request of defendant, Dr. Alfred Lotman
performed an independent medical examination of plaintiff.
Docket No. 48 at 5, ¶ 4. Dr. Lotman stated that, with
respect to plaintiff's low back pain, he would apportion
“80% preexisting and 20% due to the injuries sustained
in the motor vehicle accident.” Id., ¶ 5
(quoting Docket No. 48-4 at 8).
August 22, 2014, the adjuster responsible for handling
plaintiff's claim sent plaintiff's counsel a letter
Attached is a copy of the lndependant [sic] Medical Exam
report for your records. It was opined that 80% of your
client's injuries and treatment were related to
pre-existing conditions and that 20% was related to this auto
With this information, along with review of the medical
records and billings, our evaluation has determined that the
underlying limits were sufficient to compensate your client
for his injuries.
If you have any additional information that were [sic] would
like us to consider, please forward this to us for review.
Please contact me at the number provided if you have any
questions or concerns.
Docket No. 48-4 at 1. The adjuster incorrectly applied Dr.
Lotman's formula to the entirety of plaintiff's
injuries rather than to just plaintiff's back injuries.
Docket No. 48 at 5, ¶ 7.
filed suit on September 4, 2015 alleging four claims for
breach of contract and a claim for improper denial and
unreasonable delay in handling plaintiff's claim under
Colo. Rev. Stat. §§ 10-3-1115,
10-3-1116. Docket No. 3.
September 28, 2016, plaintiff took the deposition of
Stephanie Teixeira, a casualty claims manager for defendant.
Docket No. 48 at 3; Docket No. 51 at 2, ¶ 8. Ms.
Teixeira reviewed the claims adjuster's evaluation of
plaintiff's claim before it was denied. Docket No. 48-3
at 5, p. 163, ll. 5-16. At her deposition, Ms. Teixeira
acknowledged that defendant evaluated plaintiff's claim
incorrectly. Id. at 3, p. 161, ll. 1-5. The claims
adjuster who evaluated plaintiff's claim reduced