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Glenn v. Allstate Fire and Insurance Co.

United States District Court, D. Colorado

October 19, 2017

LARRY GLENN, Plaintiff,
v.
ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Defendant.

          ORDER

          KRISTEN L. MIX, MAGISTRATE JUDGE

         This matter is before the Court on Defendant's Motion for Summary Judgment [#26][1] (the “Motion”). Plaintiff filed a Response [#28] in opposition to the Motion, and Defendant filed a Reply [#30]. The Court has reviewed these filings, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Motion [#26] is DENIED.[2]

         I. Summary of the Case[3]

         Plaintiff Larry Glenn (“Plaintiff”) was involved in an automobile collision on March 24, 2015 (the “collision”), involving three other vehicles: an unknown vehicle (the “phantom vehicle”), a vehicle driven by Jorge Reyes Ortega (“Reyes Ortega”), and a semi-truck. Motion [#26] at ¶¶ 1-4 (undisputed facts). Mr. Reyes Ortega was found to be 100% at fault for the collision, and Plaintiff settled with Mr. Reyes Ortega's insurer, American Family Insurance (“American Family”), for the policy limit of $50, 000. Id. at ¶¶ 15, 25-26.

         Prior to settling with American Family, Plaintiff requested a settlement offer under his policy covering Uninsured/Underinsured Motorists (“UM/UIM policy”) from Defendant. Id. at ¶ 17. Defendant extended settlement offers for $12, 150 and then $13, 000, and did not receive a response to either offer from Plaintiff. Id. at ¶¶ 20-23. Defendant performed another evaluation of Plaintiff's claim and notified Plaintiff that it was rescinding the settlement offer for $13, 000 because Defendant believed that Plaintiff was adequately compensated by the proceeds of the American Family policy. Id. at 27-28. Independent from Plaintiff's UM/UIM claim, both parties acknowledge that Plaintiff recovered $32, 738.38 for property damage related to the automobile collision. Id. at 2; Glenn Dep. 46:24-47:5 [#26-1] at 13. Defendant initially paid this amount but later recovered it from Mr. Reyes Ortega. Motion [#26] at 2.

         Plaintiff is now seeking damages from Defendant under his UM/UIM policy for alleged injuries caused by the phantom vehicle. Compl. [#4] ¶ 29. Plaintiff asserts three claims against Defendant in this case: (1) an underinsured motorist claim for benefits; (2) a breach of contract claim for breach of the UM/UIM policy; and (3) a statutory unreasonable delay and/or denial of UM/UIM benefits claim. Id. at 4-5. Defendant moves for entry of summary judgment in its favor on Claims One and Two because it argues that Plaintiff is only seeking damages for psychological injuries, which are not covered under his UM/UIM policy. Motion [#26] at 2. Defendant moves for entry of summary judgment on Claim Three on the grounds that Plaintiff already recovered more than his “economic” damages from American Family and thus, no benefits are due under the policy. Id.

         II. Standards

         A. Motion for Summary Judgment

         The purpose of a motion for summary judgment pursuant to Fed.R.Civ.P. 56 is to assess whether trial is necessary. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Pursuant to Fed.R.Civ.P. 56(a), summary judgment should be entered if the pleadings, the discovery, any affidavits, and disclosures on file show “that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” An issue is genuine if the evidence is such that a reasonable jury could resolve the issue in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it might affect the outcome of the case under the governing substantive law. Id.

         The burden is on the movant to show the absence of a genuine issue of material fact. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (citing Celotex, 477 U.S. at 323). When the movant does not bear the ultimate burden of persuasion at trial, the “movant may make its prima facie demonstration [of the absence of a genuine issue of material fact] simply by pointing out to the [C]ourt a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.” Id. at 671. If the movant carries the initial burden of making a prima facie showing of a lack of evidence, the burden shifts to the nonmovant to put forth sufficient evidence for each essential element of his claim such that a reasonable jury could find in his favor. See Anderson, 477 U.S. at 248; Simms v. Okla. ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999), abrogation recognized by Dewitt v. Sw. Bell Tel. Co., 845 F.3d 1299, 1308 (10th Cir. 2017). The nonmovant must go beyond the allegations and denials of his pleadings and provide admissible evidence, which the Court views in the light most favorable to him. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir. 1995) (citing Celotex, 477 U.S. at 324). Conclusory statements based merely on conjecture, speculation, or subjective belief are not competent summary judgment evidence. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). The nonmoving party's evidence must be more than “mere reargument of [his] case or a denial of an opponent's allegation” or it will be disregarded. See 10B Charles Alan Wright, et. al., Federal Practice and Procedure § 2738 at 356 (3d ed. 1998).

         B. Choice of Law

         Based on the briefing of the Motion, the parties appear to agree that Colorado law controls this diversity action. Motion [#26] at 7; Response [#28] at 1-2. Therefore, the Court applies federal procedural law and Colorado substantive law. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941) (applying choice of law rules of the forum state in a diversity case); Essex Ins. Co. v. Vincent, 52 F.3d 894, 896 (10th Cir. 1995). “When the federal courts are called upon to interpret state law, the federal court must look to the rulings of the highest state court, and, if no such rulings exist, must endeavor to predict how that high court would rule.” Johnson v. Riddle, 305 F.3d 1107, 1118 (10th Cir. 2002).

         III. Analysis

         A. Claims One and Two

         Defendant's only argument with respect to Claims One and Two is that Plaintiff is solely seeking damages for psychological injuries, which are not covered under his UM/UIM policy. Motion [#26] at 8. Defendant argues that these claims therefore fail. Id. Plaintiff argues that it is clear from his Complaint [#4] that ...


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