United States District Court, D. Colorado
A. BRIMMER UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant AMCO's Motion for
Summary Judgment [Docket No. 24] filed by defendant AMCO
Insurance Company. The Court has jurisdiction pursuant to 28
U.S.C. § 1332.
case concerns an insurance claim related to a traffic
accident. On November 28, 2011, plaintiff Pamela Gregoire was
involved in a motor vehicle accident. Defendant's
Statement of Undisputed Material Facts (“DSUMF”)
2; Docket No. 24 at 2, ¶ 2. At the time of the accident,
plaintiff was insured by defendant under an automobile
insurance policy that included underinsured motorist
(“UIM”) coverage with a policy limit of $100,
000.00 per accident. DSUMF 3-4. In November 2014, plaintiff
settled her claims with the other party involved in the
accident for $100, 000.00, with defendant's consent.
DSUMF 5. On December 1, 2014, plaintiff submitted a package
of materials to defendant related to her UIM claim that
included medical records after the accident. DSUMF 6, 8.
December 30, 2014, defendant offered plaintiff $5, 500.00 to
settle her UIM claim. DSUMF 10. After some negotiation, on
June 8, 2015, defendant offered plaintiff $15, 000.00 to
settle her UIM claim. DSUMF 13. On July 2, 2015, plaintiff
requested that defendant pay the undisputed amount and,
shortly thereafter, defendant issued a $15, 000.00 check to
plaintiff. DSUMF 14, 15. After receiving additional medical
records from plaintiff and further negotiation, on December
16, 2016, defendant issued a check to plaintiff for an
additional $85, 000.00. DSUMF 23. This brought the total
amount that defendant paid on plaintiff's UIM claim to
the policy limit of $100, 000.00. DSUMF 24.
November 8, 2016, plaintiff filed her complaint in the
District Court for Jefferson County, Colorado. Docket No. 5.
Plaintiff's complaint includes two claims for relief: (1)
breach of contract under the insurance policy, id.
at 4-5; and (2) unreasonable delay and denial of payment of
covered benefits pursuant to Colo. Rev. Stat. §
10-3-1115 (“statutory bad faith claim”).
Id. at 5. On December 14, 2016, defendant removed
the lawsuit to this Court. Docket No. 1.
April 24, 2017, defendant filed its motion for summary
judgment. Docket No. 24. Defendant argues that
plaintiff's breach of contract claim must be dismissed
because it has paid the full value of the UIM coverage.
Id. at 8-9. With respect to plaintiff's
statutory bad faith claim, defendant argues that it is barred
by a one year statute of limitations. Id. at 11.
STANDARD OF REVIEW
judgment is warranted under Federal Rule of Civil Procedure
56 when 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 Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248-50 (1986). A disputed 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). Only
disputes over material facts can create a genuine issue for
trial and preclude summary judgment. Faustin v. City
& Cty. of Denver, 423 F.3d 1192, 1198 (10th Cir.
2005). An issue is “genuine” if the evidence is
such that it might lead a reasonable jury to return a verdict
for the nonmoving party. Allen v. Muskogee, 119 F.3d
837, 839 (10th Cir. 1997).
when “the moving party does not bear the ultimate
burden of persuasion at trial, it may satisfy its burden at
the summary judgment stage by identifying a lack of evidence
for the nonmovant on an essential element of the
nonmovant's claim.” Bausman v. Interstate
Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001)
(quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d
664, 671 (10th Cir. 1998)) (internal quotation marks
omitted). “Once the moving party meets this burden, the
burden shifts to the nonmoving party to demonstrate a genuine
issue for trial on a material matter.” Concrete
Works of Colo., Inc. v. City & Cty. of Denver, 36
F.3d 1513, 1518 (10th Cir. 1994) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986)). The nonmoving party
may not rest solely on the allegations in the pleadings, but
instead must designate “specific facts showing that
there is a genuine issue for trial.” Celotex,
477 U.S. at 324; see Fed. R. Civ. P. 56(e).
“To avoid summary judgment, the nonmovant must
establish, at a minimum, an inference of the presence of each
element essential to the case.” Bausman, 252
F.3d at 1115 (citing Hulsey v. Kmart, Inc., 43 F.3d
555, 557 (10th Cir.1994)). “In applying this standard,
we view all facts and any reasonable inferences that might be
drawn from them in the light most favorable to the nonmoving
party.” Henderson v. Inter-Chem Coal Co.,
Inc., 41 F.3d 567, 569 (10th Cir. 1994).
Breach of Contract Claim
argues that, because it has paid the policy limits under
plaintiff's UIM coverage, plaintiff is not entitled to
further damages and, as a result, plaintiff's claim for
breach of contract must be dismissed. Docket No. 24 at 8
(citing Old Republic Ins. Co. v. Ross, 180 P.3d 427,
437 (Colo. 2008)). Plaintiff responds that she is seeking
non-economic damages for defendant's breach of contract
and argues that “damages for an insured's emotional
distress are available in actions for bad faith breach of
insurance contract.” Docket No. 34 at 7 (citing
Goodson v. Am. Stand. Ins. Co. of Wisconsin, 89 P.3d
409, 417 (Colo. 2004)).
Colorado law, the general rule is that “mental anguish
which results solely from pecuniary loss following a breach
of contract is not recoverable.” Smith v.
Hoyer, 697 P.2d 761, 764 (Colo.App. 1984). There is an
exception to this rule that allows recovery for anguish in
the case of an “intentional breach, involving willful,
wanton, or insulting conduct, and without any legal
justification or excuse.” Id. (citing
McCreery v. Miller's Groceteria Co., 64 P.2d 803
(Colo. 1936)); see also Williams v. Cont'l Airlines,
Inc., 943 P.2d 10, 16 (Colo.App. 1996) (holding that
“damages for mental or emotional suffering” are
not available in breach of contract actions without
“willful or wanton” conduct). Although plaintiff
is correct that damages for emotional distress are available
under a common law claim for bad faith breach of an insurance
contract, plaintiff brings no such claim. See Docket
Nos. 5, 40, 42. Plaintiff does not argue, and provides no
evidence, that defendant engaged in willful and wanton
conduct in denying plaintiff's insurance claims.
See Docket No. 34. Accordingly, plaintiff has ...