United States District Court, D. Colorado
ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY
William J. Martinez United States District Judge.
Nicole Simmons (“Plaintiff”) sues Defendants
Liberty Mutual Insurance Company and Peerless Indemnity
Insurance Company (“Defendants”) for underinsured
motorist (“UIM”) benefits that Defendants have
refused to pay. Currently before the Court is Defendants'
Motion for Summary Judgment (ECF No. 30) arguing that
Plaintiff's causes of action are barred by the applicable
statute of limitations. For the reasons set forth below,
Defendants' motion is denied.
judgment is warranted under Federal Rule of Civil Procedure
56 “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a);
see also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248-50 (1986). A fact is “material” if,
under the relevant substantive law, it is essential to proper
disposition of the claim. Wright v. Abbott Labs.,
Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). An issue
is “genuine” if the evidence is such that it
might lead a reasonable trier of fact to return a verdict for
the nonmoving party. Allen v. Muskogee, 119 F.3d
837, 839 (10th Cir. 1997).
analyzing a motion for summary judgment, a court must view
the evidence and all reasonable inferences therefrom in the
light most favorable to the nonmoving party. Adler v.
Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.
1998) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986)). In addition, the
Court must resolve factual ambiguities against the moving
party, thus favoring the right to a trial. See Houston v.
Nat'l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir.
facts are undisputed:
• November 20, 2011.
A vehicle driven by non-party Pamela Curran strikes the
vehicle in which Plaintiff was riding as a passenger
(“Accident”). (ECF No. 30 at 2, ¶ 1.) Curran
is insured under an American Family policy with a liability
limit of $100, 000. (Id. ¶ 2.) The driver of
the vehicle in which Plaintiff is riding is insured by
Defendant Peerless, and that policy includes UIM coverage.
(Id. ¶ 3.)
• November 14, 2014.
Plaintiff signs a release of all claims against Curran in
exchange for $100, 000 (Curran's policy limit), and her
counsel provides the signed release form and payment
instructions to American Family. (Id. at 3, ¶
6; ECF No. 33 at 2-3, ¶ 5(A)(ii).)
• November 18, 2014.
The American Family settlement check physically arrives at
the office of Plaintiff's counsel. (Id. ¶
• November 19, 2014.
Plaintiff endorses the American Family check. (Id.
• February 12, 2015.
Plaintiff's counsel sends a letter to Defendants
demanding UIM benefits under the Peerless policy and stating,
among other things, that “Ms. Simmons settled her
underlying liability claim for policy limits of $100, 000 on
November 14, 2014.” (ECF No. 30 at 3, ¶ 8.)
• November 16, 2016.
Plaintiff files this lawsuit. (ECF No. 1-1.)
Framing the Dispute
Defendants' affirmative defenses is that the statute of
limitations on Plaintiff's UIM claim expired before she
filed this lawsuit. (ECF No. 10 at 9; ECF No. 30 at 3, ¶
10.) Defendants move for summary judgment on this defense,
arguing that it may be resolved in their favor as a matter of
law on the undisputed facts. (Id. at 5.)
Defendants' argument turns on the meaning of the
following statutory text, to which the Court has added line
breaks, indentation, and bracketed numerals for clarity:
An action or arbitration of an “underinsured
motorist” insurance claim, as defined in section
10-4-609(4), C.R.S., shall be commenced or demanded by
arbitration demand within three years after the cause of
except that, if the underlying bodily injury liability claim
against the underinsured ...