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Meek v. Allstate Fire and Casualty Insurance Co.

United States District Court, D. Colorado

May 21, 2018

CHRISTOPHER MEEK, Plaintiff,
v.
ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Defendant.

          MEMORANDUM OPINION AND ORDER

          Nina Y. Wang Magistrate Judge

         This matter comes before the court on Defendant Allstate Fire and Casualty Insurance Company's (“Defendant” or “Allstate”) Motion for Summary Judgment [#26, filed January 12, 2018]. The Motion is before the court pursuant to the Order of Reference dated April 19, 2017 [#17], 28 U.S.C. § 636(c), Fed.R.Civ.P. 73, and D.C.COLO.LCivR 72.2. The court has carefully considered the Motion and related briefing, the entire case file, and the applicable case law. For the following reasons, Allstate's Motion for Summary Judgment is DENIED.

         PROCEDURAL BACKGROUND

         Plaintiff Christopher Meek (“Plaintiff” or “Mr. Meek”) commenced this action on February 3, 2017, by filing a Complaint in the District Court for Denver County, Colorado. [#3] Plaintiff asserts four claims for Breach of Contract, “Violation of C.R.S. § 10-3-1115/First Party Statutory Claim pursuant to C.R.S. § 10-3-1116, ” Breach of Duty of Good Faith and Fair Dealing, and “Claim for Underinsured Motorist Benefits, ” arising out of a motor vehicle accident. [Id.] On March 7, 2017, Allstate removed the action to this court asserting jurisdiction pursuant to 28 U.S.C. § 1332. See [#1].

         After the close of discovery, Allstate filed the Motion for Summary Judgment as to Plaintiff's first three claims, but not as to the fourth claim. See [#26]. Plaintiff filed a Response on February 2, 2018, [#27], and Allstate filed a Reply on February 19, 2018 [#30]. Having reviewed the Parties' briefing, the entire docket, and the applicable case law, this court finds that oral argument would not materially assist in the disposition of the Motion for Summary Judgment.

         STANDARD OF REVIEW

         Summary judgment is appropriate only 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). “A ‘judge's function' at summary judgment is not ‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986)). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or conversely, is so one-sided that one party must prevail as a matter of law. Anderson, 477 U.S. at 248-49; Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000); Carey v. U.S. Postal Service, 812 F.2d 621, 623 (10th Cir. 1987). A fact is “material” if it pertains to an element of a claim or defense; a factual dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a reasonable party could return a verdict for either party. Anderson, 477 U.S. at 248. “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing First Nat. Bank of Ariz. v. Cities Service Com, 391 U.S. 253, 289 (1968)).

         When, as here, 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.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (citation omitted). “The movant bears the initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.” Id. at 670-71. Once the movant meets this initial burden, the nonmovant assumes the burden to put forth sufficient evidence to demonstrate the essential elements of the 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). Conclusory statements based merely on speculation, conjecture, or subjective belief are not competent summary judgment evidence. See Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). And 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).

         MATERIAL FACTS

         Undisputed Facts

         The following facts are taken from the Motion for Summary Judgment and associated briefs and are undisputed.[1] On July 9, 2015, Plaintiff was involved in a motor vehicle accident with Brett Branam, a nonparty. Following the motor vehicle accident, Mr. Meek sought uninsured motorist (“UIM”) benefits from his insurer, Allstate. [#26 at 3, ¶ 1]. By July 10, 2015, Allstate had determined that Plaintiff was not comparatively at-fault for the collision. [#27 at 6, ¶ 2; #30 at 2, ¶ 2]. Approximately nine months later, Allstate received a request from Plaintiff's counsel for permission to settle the underlying third-party claim for the available policy limit of $25, 000. [#27 at 6, ¶ 4; #30 at 2, ¶ 4]. As of May 9, 2016, the claim adjuster handling the claim was aware that Plaintiff had been billed close to $70, 000 in medical expenses. [#27 at 6, ¶ 5; #30 at 2, ¶ 5].

         The Allstate policy at issue includes the following language:

If a premium is shown on the Policy Declarations for Uninsured Motorists Insurance for Bodily Injury, we will pay damages that an insured person is legally entitled to recover from the owner or operator of an uninsured auto because of bodily injury sustained by an insured person. The bodily injury must be caused by an accident and arise out of the ownership, maintenance or use of an uninsured auto.…
The right to benefits and the amount payable will be decided by agreement between the insured person and us. If the insured person and we do not agree, then the disagreement will be resolved in a court of competent jurisdiction.

[#27-9].

         In a letter dated August 29, 2016, Plaintiff proposed to Allstate “a compromise settlement of his claims, ” in an attempt to “resolve the underlying Underinsured Motorist claim” (“Demand Letter”). [#26-1]. Allstate received the Demand Letter on September 8, 2016. See [#26-2 at 31]. The Demand Letter sought damages associated with a right hip arthroscopy and referenced the inclusion of records from Comprehensive Family Medicine, Orthopedic Associates, and Health Images. See [#27-1]. The Demand Letter claimed $77, 759.04 in economic losses. It also asserted an unspecified amount for non-economic damages, supported by a section titled “Non-Economic Damages-Impact on Quality of Life, ” in which Plaintiff provided details about the impact the car accident and resulting injuries had had on his life. Plaintiff also described, in support of his pain and suffering claim, the aggravating effect of his employment duties on his injuries. [#27-1 at 1-9]. Allstate asserts that it began its initial evaluation of Plaintiff's claim on September 14, 2016. [#26 at 3, ¶ 5; #26-2 at 31-35]. Based on the information provided, Allstate valued Plaintiff's claim between $90, 301.07 and $100, 301.07. [#26-2 at 34-35]. After subtracting the payment made by Mr. Branam, Allstate valued Plaintiff's claim between $65, 301.07 and $80, 301.07. [Id.].

         On September 22, 2016, twenty-three days after Plaintiff wrote the Demand Letter and fourteen days after Allstate received the Demand Letter, Allstate offered $65, 000 to settle Plaintiff's UIM claim. [#26-3]. Allstate renewed its offer three more times, [#26-4 through #26-6]; and, on December 5, 2016, Plaintiff's counsel “attempted to call Defendant…and left a voicemail.” [#27 at 4, ¶ 16 (citing #26-2 at 44)]. Defendant's claim notes contain the following record from December 5, 2016: “Attorney…called…I called back and left message…she says she has to have policy limits, I have room to move but not limits.” [#26-2 at 44]. The claim notes further indicate that the claim adjuster advised Plaintiff's attorney that the file was missing Plaintiff's physical therapy records. Plaintiff's attorney stated that the file should contain some but not all of the physical therapy records; and, upon the adjuster's insistence that she had no physical therapy files, Plaintiff's attorney stated she would resubmit for further evaluation of the claim. See [id.] The claim notes indicate that Plaintiff's attorney submitted a copy of Plaintiff's Denver Physical Therapy records the same day. [#26 at 5, ¶ 18 (citing #26-7); #27 at 5, ¶ 18].

         On December 21, 2016, Allstate again offered to settle, [#26 at 6, ¶ 23; #27 at 5, ¶ 23], and, on January 16, 2017, Allstate again requested missing documentation for purposes of claim evaluation and re-evaluation, if necessary. [#26 at 6, ¶ 26; #27 at 6, ¶ 26]. On February 2, 2017, Plaintiff, through counsel, informed Allstate that he had provided it with adequate information to evaluate the claim; Plaintiff initiated this lawsuit the following day. [#26 at 6, ¶ 27; #27 at 6, ¶ 27]. To date, Plaintiff has not received any payment under the UIM portion of his Allstate insurance policy. [#27 at 7, ¶ 11; #30 at 4, ¶ 11]. A reservation of rights letter has never been issued by Allstate in connection to Plaintiff's UIM claim, and it is undisputed that Plaintiff's claim is covered under the Allstate policy in effect on the date of loss. [#27 at 9, ¶ 17; #30 at 4, ¶ 17].

         Disputed Facts

         The following facts are taken from the Motion for Summary Judgment and associated briefs and are disputed. It is unclear when Plaintiff first notified Allstate of a potential claim for UIM benefits. Plaintiff asserts he notified Allstate on December 8, 2015, [#27 at 6, ¶ 1 (citing #26-2 at 45)]; and Defendant contends that it learned of Plaintiff's claim in the Demand Letter, dated August 29, 2016 and received by Allstate on September 8, 2016, [#30 at 2, ¶ 1 (citing #26-1)]. Plaintiff asserts that as a result of the accident, he sustained multiple injuries including a labral tear to his right hip, which ultimately required surgery. [#27 at 6, ¶ 3 (citing #26-2 at 32)]. Defendant contends it is “without sufficient knowledge to determine whether the full extent of Plaintiff's injuries were ‘as a result of the accident.'” [#30 at 2, ¶ 3]; see [#26-2 at 32 (claim notes acknowledge MRI results show “labral tear and other abnormalities, ” and that Plaintiff was “referred to Ortho”)].

         Allstate states that upon review of the Demand Letter, it “noted a reference to physical therapy treatment that had occurred prior to the Plaintiff's hip surgery, ” [#26 at 3, ¶ 6 (citing #26-1 at 3)], and further states that it was not, however, “provided with the pre-surgical therapy records, ” nor “with an authorization to obtain the same.” [Id. (citing #26-2 at 33-34)]. Plaintiff disputes this assertion, and states that his Demand Letter “included records from Mile High Surgery Center, Denver Physical Therapy Center, Comprehensive Family Medicine, Orthopedic Associates, ” and that the “Orthopedic Associates records included pre-surgery physical therapy records from 2/15/2016.” [#27 at 4, ¶ 6 (citing #27-1 at 39) (emphasis omitted)]. The page Plaintiff cites is dated February 15, 2016, and appears to be a form filled out by a “PT, ” following an exam performed on Plaintiff. See [#27-1 at 39]. Plaintiff further disputes Defendant's assertion as follows: “With respect to Defendant's allegation that Allstate was not provided with a medical record release, Allstate never sent medical record releases for Plaintiff to execute.” [#27 at 4, ¶ 6]. Allstate represents that the “physical therapy records Plaintiff purports were provided were not the pre-surgical physical records Allstate determined were missing.” [#30 at 3, ¶ 6 (citing #26-1 at 3-5, #26-2 at 33-34)].

         Allstate asserts that on December 16, 2016, it “notified Plaintiff's counsel that the physical therapy records delivered three days earlier were duplicates and that the requested pre-surgery therapy records had not been provided, ” and that “[w]ith no new information presented, Allstate again offered $65, 000.00 to resolve the Plaintiff's UIM claim.” [#26 at 5, ¶ 19 (citing #26-8)]. Allstate asked that Plaintiff send physical therapy records predating his surgery, if any exist. [Id.] Plaintiff disputes this assertion as follows: “[t]he settlement evaluation packet included Orthopedic Associates records which pre-surgery physical therapy records from 2/15/2016.” [#27 at 5, ¶ 19 (citing #27-1 at 39)].

         Plaintiff states that on December 19, 2016, his attorney sent Allstate a letter, “which Allstate seemingly responded to on December 21, 2016.” [#27 at 5, ¶ 20 (citing #27-2 at 46, #27-7)]. The December 19 letter confirms the conversation held with Allstate on December 15, 2016, and states that the attorney's office “faxed over another copy of the Physical Therapy records to you as you requested…” [#27-7 at 1]. The letter also states: “As we previously discussed the week prior, Mr. Meek's medical bills alone are over $76, 235.00 and increasing, as he is still undergoing Physical Therapy which is anticipated to continue until the summer of 2018.” [#27-7 at 1]. Allstate asserts that it never received the December 19 letter, [#26 at 5, ¶ 21; #26-10 at 157:25-158:24], and that the claim notes do not indicate otherwise. [#26 at 5, ¶ 22; #26-2 at 45-46]. Plaintiff disagrees with Allstate's representation of the claim notes, which reference “Right Fax Legal Correspondence” on December 20, 2016, and note “GENU009 Letter sent” to Plaintiff's attorneys on December 21, 2016. [#27 at 5, ¶ 22; #26-2 at 46]. The claim notes additionally state on December 22, 2016, “Atty ofc sent in duplicate P/T recds and bills…f/u on wage loss…called atty ofc & spoke with [paralegal]…request wage loss…, ” and state on December 27, 2016, “attorney letter faxed 12/20/16 - dated 12/19/16.” [#26-2 at 46-47]. Allstate's claim adjuster testified that the only letter delivered to Allstate on or about December 19, 2016, was a letter requesting a certified copy of the applicable insurance policy with the certificate of coverage for all vehicles in the household, [#26-10 at 155:7-157:24], and that the claim notes reflect this: “Req copy of policy and dec page for all vehicles in the household…Julie please send copy of certified policy and dec page to the attorney.” [#26-2 at 47].

         Plaintiff and Allstate similarly dispute that Plaintiff sent a second letter to Allstate on January 10, 2017. Allstate contends that the second letter, like the first, “did not have a facsimile cover sheet or a date stamp proving receipt by Allstate, ” and its claim adjuster testified that she did not receive or review such a letter. Plaintiff asserts that the claim notes demonstrate that Plaintiff sent and Allstate received the letter. [#26 at 6, ¶¶ 24, 25; #27 at 6, ¶¶ 24, 25; #26-10 at 158:25-159:25; #26-2 at 47].

         Additionally, Plaintiff contends that in September 2016, Defendant “determined Plaintiff was entitled to at least $65, 000 in UIM benefits, ” [#27 at 7, ¶ 8 (citing #26-3 at 9)]; Defendant asserts that it “made a good faith settlement offer of $65, 000.00 to Plaintiff after it concluded that his costs and expenses were fully covered by the underlying bodily injury settlement.” [#30 at 3, ¶ 8]. Plaintiff states that the claim adjuster reserved his claim “at $65, 301-$75, 301.07 with another $5, 000 potentially if provided with ‘missing' p/t records she assumed existed, ” [#27 at 7, ¶ 9 (#26-2 at 34, #26-3)]; Defendant contends it “was of the opinion that pre-surgical physical therapy records did, in fact, exist based on several detailed notes contained in the medical records.” [#30 at 3, ¶ 9 (citing #26-1 at 3-5, #26-2 at 33-34)]. Plaintiff asserts that Allstate never communicated to him that it was disputing any of his medical expenses, [#27 at 7, ¶ 10 (citing #26-2 at 44)]; Defendant states that it “continued to investigate Plaintiff's medical ...


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