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Dennis v. American Family Mutual Insurance Co.

United States District Court, D. Colorado

September 27, 2017

CORT DENNIS, Plaintiff,
v.
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant.

          ORDER

          PHILIP A. BRIMMER, UNITED STATES DISTRICT JUDGE

         This 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.

         I. BACKGROUND[1]

         On September 8, 2012, a car collided with the motorcycle[2] 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.

         Immediately 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.

         On July 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).

         On August 22, 2014, the adjuster responsible for handling plaintiff's claim sent plaintiff's counsel a letter stating:

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 accident.
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.

         Plaintiff 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.[3] Docket No. 3.

         On 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 ...


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