United States District Court, D. Colorado
Kristen L. Mix United States Magistrate Judge
matter is before the Court on Defendant's Motion
for Summary Judgment on Claims for Unreasonable Denial of
Benefits Pursuant to C.R.S. 10-3-1115 - 1116
[#28] (the “Motion”). Plaintiff
filed a Response [#29] in opposition to the Motion, and
Defendant filed a Reply [#30]. The Court has reviewed these
filings, the entire case file, and the applicable law, and is
sufficiently advised in the premises. For the reasons set
forth below, the Motion [#28] is
Summary of the Case 
Sharon Shaw (“Plaintiff”) was involved in an
automobile/pedestrian collision on Abbey Road in Pueblo
County, Colorado. Sched. Order [#15] ¶ 1.
Defendant Shelter Mutual Insurance Company
(“Defendant”) is Plaintiff's insurer, with an
underinsured motorist limit of $250, 000. Id. ¶
2. At approximately 9:45 p.m. on October 9, 2015, Plaintiff
was driving north on Abbey Road, which is a two-lane road
with a single lane for northbound traffic and a single lane
for southbound traffic. Id. ¶ 1, 5. Plaintiff
stopped and exited her vehicle from the driver's side
door and was struck by a southbound vehicle driven by Lee
Morey (“Morey”). Id. ¶ 6. Plaintiff
suffered injuries, and was paid the limits of Mr. Morey's
liability policies through GEICO and Travelers Insurance
Company, a total of $275, 000. Id. ¶ 7, 8-10.
Thus, Plaintiff asserts that Defendant is liable to Plaintiff
for any amount she would be legally entitled to recover
against Mr. Morey that exceeds $275, 000, up to her
underinsured policy limit of $250, 000. Id. ¶
10. Plaintiff filed an underinsured motorist claim, which
Defendant ultimately denied on May 13, 2016. Id.
asserts that Defendant is liable for the damages Mr. Morey
negligently caused to Plaintiff up to the $250, 000
underinsurance coverage limit. Compl. [#3] ¶
44. Plaintiff asserts three claims against Defendant: (1)
“Underinsured Motorist/Declaratory Judgment”; (2)
a breach of contract claim for denying underinsured motorist
benefits; and (3) a statutory unreasonable delay and denial
of Plaintiff's claim for underinsured motorist benefits.
Id. at 9-10. Defendant moves for entry of summary
judgment in its favor on Claim Three on the grounds that
Defendant did not unreasonably deny benefits. See
generally Motion [#28].
Motion for Summary Judgment
purpose of a motion for summary judgment pursuant to
Fed.R.Civ.P. 56 is to assess whether trial is necessary.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Pursuant to Fed.R.Civ.P. 56(a), summary judgment
should be entered if the pleadings, the discovery, any
affidavits, and disclosures on file show “that there is
no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law.” An issue
is genuine if the evidence is such that a reasonable jury
could resolve the issue in favor of the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A fact is material if it might affect the outcome of
the case under the governing substantive law. Id.
burden is on the movant to show the absence of a genuine
issue of material fact. Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (citing
Celotex, 477 U.S. at 323). When the movant does not
bear the ultimate burden of persuasion at trial, the
“movant may make its prima facie demonstration [of the
absence of a genuine issue of material fact] simply by
pointing out to the [C]ourt a lack of evidence for the
nonmovant on an essential element of the nonmovant's
claim.” Id. at 671. If the movant carries the
initial burden of making a prima facie showing of a lack of
evidence, the burden shifts to the nonmovant to put forth
sufficient evidence for each essential element of his 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), abrogation recognized
by Dewitt v. Sw. Bell Tel. Co., 845 F.3d 1299, 1308
(10th Cir. 2017). The nonmovant must go beyond the
allegations and denials of his pleadings and provide
admissible evidence, which the Court views in the light most
favorable to him. Adickes v. S.H. Kress & Co.,
398 U.S. 144, 157 (1970); Panis v. Mission Hills Bank,
N.A., 60 F.3d 1486, 1490 (10th Cir. 1995) (citing
Celotex, 477 U.S. at 324). Conclusory statements
based merely on conjecture, speculation, or subjective belief
are not competent summary judgment evidence. Bones v.
Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir.
2004). 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).
Choice of Law
argues that Colorado law controls this diversity action
because the Policy is a Colorado policy issued to a Colorado
driver, and the accident at issue occurred in Colorado.
Motion [#28] at 13-14. Plaintiff does not contest
that Colorado law applies, and cites Colorado law throughout
the Response [#29]. Thus, the parties appear to be in
agreement that Colorado law applies. Accordingly, the Court
applies federal procedural law and Colorado substantive law.
See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S.
487, 496 (1941) (applying choice of law rules of the forum
state in a diversity case); Essex Ins. Co. v.
Vincent, 52 F.3d 894, 896 (10th Cir. 1995). “When
the federal courts are called upon to interpret state law,
the federal court must look to the rulings of the highest
state court, and, if no such rulings exist, must endeavor to
predict how that high court would rule.” Johnson v.
Riddle, 305 F.3d 1107, 1118 (10th Cir. 2002).
argues that judgment should enter in its favor because the
decision to deny Plaintiff's claim was reasonable as a
matter of law. Motion [#28] at 2. Plaintiff contends
that Defendant has not sufficiently established a lack of
genuine issue of material fact regarding reasonableness.
Response [#29] at 19.
Rev. Stat. § 10-3-1115(1)(a) provides that an insurer
may not “unreasonably delay or deny payment of a claim
for benefits owed to or on behalf of any first-party
claimant.” Defendant contends that the appropriate
legal standard for reasonableness is articulated in Tozer
v. Scott Wetzel Services, 883 P.2d 496, 498 (Colo.App.
1994). However, Tozer concerns a Colorado statute
providing for an award of attorney's fees “when the
bringing or defense of an action . . . is determined to have
been substantially frivolous, substantially groundless, or
substantially vexatious.” Motion [#28] at 16;
Colo. Rev. Stat. § 13-17-101. There has been no ...