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Peã‘a v. American Family Mutual Insurance Co.

Court of Appeals of Colorado, Second Division

April 19, 2018

Marissa PEÑA, Plaintiff-Appellant,
v.
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant-Appellee.

Page 880

         Adams County District Court No. 16CV31040 Honorable Emily E. Anderson, Judge

          Bendinelli Law Firm, P.C., Marc F. Bendinelli, Westminster, Colorado, for Plaintiff-Appellant.

          Michael L. Adams, Ted Wallace, Englewood, Colorado, for Defendant-Appellee.

         OPINION

          DAILEY, JUDGE

         [¶1] Plaintiff, Marissa Peñ a, appeals the district court's judgment dismissing her complaint against defendant, American Family Mutual Insurance Company. We affirm.

          I. Background

         [¶2] While driving her car on June 24, 2013, Peñ a was involved in a three-car collision. When the accident occurred, she was insured by American Family Mutual Insurance Company (American Family). So too was one of the other drivers involved in the accident, Herman Garner.

         [¶3] In November 2013, Peñ a sent a letter to American Family asserting a claim under the uninsured motorist provisions of her policy. On September 9, 2015, the law firm representing Peñ a sent American Family another letter, specifically asserting that despite the conclusion of an investigating police officer

assigning 100% pf [sic] the fault to Mr. Garner for causing this collision[,] ... American Family is refusing to repair Ms. Pena's car under Mr. Garner's Property Damage coverage.

....

Further, ... Ms. Pena has Uninsured Motorist Property damage coverage stemming from her own policy. As you know, a denial from Mr. Garner's insurance company (here American Family) permits Ms. Pena to treat Mr. Garner as uninsured[,] entitling Ms. Pena [to] Uninsured Motorist Property Damage coverage. However, American Family has never issued a check for the damages to Ms. Pena's vehicle under that coverage either.[1]

         [¶4] On September 17, 2015, American Family responded that it was denying Peñ a's claim because (1) having completed its own investigation in the matter, it had "determined that Herman Garner is not responsible for the damage to either vehicle involved in the claim" and (2) because (as pertinent here) Garner's vehicle "had active coverage at the time of the [accident]," Peñ a's "coverage of Uninsured Motorists Property Damage would not apply."

         [¶5] Peñ a instituted two actions, one against Garner,[2] the other against American Family. In the case now before us, Peñ a sued American Family under section 10-3-1115, C.R.S. 2017, for the unreasonable delay and denial of benefits due under the Uninsured Motorist Property Damage (UMPD) provisions of her policy. In support of this claim, she alleged that her UMPD coverage encompassed her situation here because it "expressly ...


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