United States District Court, D. Colorado
KRISTEN L. MIX, MAGISTRATE JUDGE
matter is before the Court on Defendant's Motion
for Summary Judgment [#26] (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
Summary of the Case
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.
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.
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.
Motion for Summary Judgment
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.
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).
Choice of Law
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.
Claims One and Two
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 ...