United States District Court, D. Colorado
ORDER DENYING DEFENDANT'S MOTION TO
CHRISTINE M. ARGUELLO United States District Judge
matter is before the Court on Defendant's Motion to
Dismiss (Doc. # 21) Plaintiff's Complaint (Doc. # 12)
pursuant to Federal Rule of Civil Procedure 12(b)(6). For the
reasons discussed herein, Defendant's Motion to Dismiss
Lt. Col (ret.) Erin Peterson, is the widow of Theodore
Bobkowski, who had applied for a life insurance policy from
Defendant with $1, 000, 000.00 in coverage. (Doc. # 12
¶¶ 11, 14.) The policy was issued with an effective
date of September 21, 2015. (Id. at ¶ 14.) On
October 22, 2016, a little over one year after obtaining the
Policy, Mr. Bobkowski unexpectedly died. (Id. at
as the named beneficiary on the Policy, submitted a claim to
Defendant on the insurance policy. (Doc. # 21 at 2.)
Defendant subsequently denied the claim and refused to pay
benefits, on grounds that Plaintiff and Mr. Bobkowski
allegedly misrepresented a medical condition. (Id.
at ¶ 20.) Plaintiff brought this lawsuit asserting
claims against Defendant for breach of contract, bad faith
breach of contract, and violation of the Colorado Consumer
Protection Act (“CCPA”). (Doc. # 21 at 2.)
Defendant removed the suit to Federal court. (Doc. # 1.)
STANDARD OF REVIEW
Motion to Dismiss seeks dismissal of only the CCPA claim
pursuant to Federal Rule of Civil Procedure 12(b)(6).
Rule12(b)(6) provides that a defendant may move to dismiss
for “failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). In reviewing a motion
to dismiss, a court takes all well-pleaded allegations in the
plaintiff's complaint as true and construe the
allegations in the light most favorable to the plaintiff.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007); Khalik v. United Air Lines, 671 F.3d 1188,
1190 (10th Cir. 2012).
court's function on a Rule 12(b)(6) motion is not to
weigh potential evidence that the parties might present at
trial, but to assess whether the plaintiff's complaint
alone is legally sufficient to state a claim for which relief
may be granted.” Miller v. Glanz, 948 F.2d
1562, 1565 (10th Cir. 1991). A claim should not be dismissed
if it contains “enough facts to state a claim to relief
that is plausible on its face.” Ridge at Red Hawk,
L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir.
2007) (quoting Twombly, 550 U.S. at 570).
Plausibility, in the context of a motion to dismiss, means
that the plaintiff pled facts which allow “the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). If the allegations
state a plausible claim for relief, such claim survives the
motion to dismiss. Id.
moves to dismiss Plaintiff's CCPA claim because it does
not meet two required elements for a CCPA claim: (1) that
USAA Life engaged in a deceptive or unfair trade practice,
and (2) that its alleged conduct significantly impacts the
public. (Doc. # 21 at 1.) First, with respect to whether
Defendant engaged in a deceptive or unfair trade practice,
Defendant contends that Plaintiff failed to allege with
particularity Defendant's unfair or deceptive trade
practice as required by the CCPA and by Rule 9(b).
(Id. at 6.) Second, Defendant contends that
Plaintiff has not pled the necessary “significant
public impact” required for a CCPA claim. (Id.
PARTICULARITY OF PLAINTIFF'S CLAIM OF DECEPTIVE OR UNFAIR
CCPA was “enacted to regulate commercial activities and
practices, which because of their nature may prove injurious,
offensive, or dangerous to the public.” Rhino
Linings USA, Inc. v. Rocky Mountain Rhino Lining, Inc.,
62 P.3d 142, 146 (Colo. 2003). It is “intended to deter
and punish deceptive trade practices committed by business in
dealing with the public.” Showpiece Homes Corp. v.
Assurance Co. of America, 38 P.3d 47, 51 (Colo. 2001).
The CCPA is liberally construed to serve its broad purpose
and scope. Hall v. Walter, 969 P.2d 224, 230
claim-like any allegation of fraud or mistake-must be pled
with particularity pursuant to Federal Rule of Civil
Procedure 9(b). Fed.R.Civ.P. 9(b). The purpose of the
heightened pleadings under Rule 9(b) is to put Defendant on
notice, so that it may prepare its case. Healthone of
Denver, Inc. v. UnitedHealth Grp., Inc., 805
F.Supp. 2d. 1115, 1121 (D. Colo. 2011). To satisfy this
requirement, the court requires a complaint alleging fraud to
“set forth the time, place and contents of the false
representation, the identity of the party making the false
statements and the consequences thereof.” In re
Edmonds,924 F.2d 176, 180 (10th Cir.1991). Rule 9(b) is
read in conjunction with Rule 8, “which calls for
pleadings to be simple, concise, and direct.”
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