United States District Court, D. Colorado
AMERICAN SELECT INSURANCE COMPANY, an Ohio corporation, Plaintiff,
AILEEN JOHNSON, CHARLES JOHNSON, PABLO HERNANDEZ, HERNANDEZ TRUCKING, LLC, HERNANDEZ TRUCKING, INC., Defendants.
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiff American Select
Insurance Company's Motion for Summary Judgment. (Doc. #
48.) For the reasons stated below, the Court grants the
action arises from an automobile collision that occurred on
December 19, 2016, on Highway 85 in Douglas County, Colorado.
Defendant Pablo Hernandez was driving his 2004 Peterbilt dump
truck when he collided with a passenger car. Defendant
Charles Johnson was driving that car, and Defendant Aileen
Johnson (collectively, the “Johnson Defendants”)
was a passenger.
day of the collision, Mr. Hernandez was hauling dirt for Troy
Forming Concrete, Inc. (“Troy”). Mr. Hernandez
and his company Defendant Hernandez Trucking, LLC, also known
as Defendant Hernandez, Inc. (collectively, the
“Hernandez Defendants”) had been hauling dirt for
Troy on a subcontract basis for almost five years. The
Hernandez Defendants had a commercial insurance policy with
Artisan and Truckers Casualty Company
(“Progressive”), and Troy had a commercial
insurance policy with Plaintiff American Select (the
the collision, the Johnson Defendants filed suit against the
Hernandez Defendants in the Denver County District Court (the
“Underlying Lawsuit”). The Johnson Defendants
alleged that Mr. Hernandez negligently operated his dump
truck and that the resulting collision caused them
significant physical and emotional injuries. The Hernandez
Defendants tendered the Johnson Defendants' claims to
Progressive, which agreed to defend and indemnify them.
Progressive then tendered the claims to Plaintiff American
Select to determine whether the Hernandez Defendants were
covered under Troy's Policy at the time of the collision.
American Select denied coverage to the Hernandez Defendants.
Johnson Defendants and the Hernandez Defendants ultimately
settled the Underlying Lawsuit. Pursuant to the
settlement's terms, Progressive paid to the Johnson
Defendants the $1, 000, 000 liability limit of the
Progressive Policy. The Johnson Defendants and the Hernandez
Defendants also stipulated to a final judgment in the amount
of $5, 000, 000 against Mr. Hernandez personally and in favor
of the Johnson Defendants. Finally, Defendant Hernandez
assigned to the Johnson Defendants his rights, title, and
interest in his claims against American Select for the
collection of judgment entered against him in the Underlying
American Select later commenced this action for declaratory
judgment against the Johnson Defendants and the Hernandez
Defendants on June 5, 2017. (Doc. # 1.) Plaintiff
specifically requests a declaratory judgment regarding the
scope of the Policy's coverage, or lack thereof, over the
Hernandez Defendants and their 2004 Peterbilt dump truck.
(Id. at 6.) The Johnson Defendants filed
counterclaims against Plaintiff American Select for breach of
contract and bad faith breach (Doc. # 34); the Hernandez
Defendants have not filed an answer or otherwise appeared in
February 2, 2018, Plaintiff American Select filed the instant
Motion for Summary Judgment, wherein it argues that the
Hernandez Defendants were not covered by the Policy at the
time of the collision and request that this Court enter
judgment in its favor against all Defendants. (Doc. # 48.)
The Johnson Defendants object to summary judgment, arguing
that the Hernandez Defendants were, indeed, covered under the
terms of the Policy. Based on the following analysis, the
Court agrees with Plaintiff American Select.
judgment is appropriate if “the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.”
Fed.R.Civ.P. 56(c); Atl. Richfield Co. v. Farm Credit
Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000).
If, after viewing the evidence in the light most favorable to
the nonmoving party, the court determines that no reasonable
juror could return a verdict for the nonmoving party, summary
judgment is warranted. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242 (1986).
as here, federal jurisdiction is predicated upon diversity,
the court applies the substantive law of the forum state.
Barrett v. Tallon, 30 F.3d 1296, 1300 (10th Cir.
1994). Under Colorado law, “[t]he interpretation of an
insurance policy, like any written contract, presents a
question of law and, therefore, is appropriate for summary
judgment.” Tynan's Nissan, Inc. v. Am. Hardware
Mut. Ins. Co., 917 P.2d 321, 323 (Colo.App. 1995)
(citing Bumpers v. Guarantee Trust Life Insurance
Co., 826 P.2d 358 (Colo.App. 1991)).
insurance policy is a contract between the insurer and the
insured which determines the claims which the insurer is
legally required to pay. Thus, when construing the terms of
an insurance policy, Colorado courts apply traditional
principles of contract interpretation. Cotter Corp. v.
Am. Empire Surplus Lines Ins. Co., 90 P.3d 814, 819
(Colo. 2004); Essex Ins. Co. v. Vincent, 52 F.3d
894, 896 (10th Cir. 1995). A “court should interpret a
contract ‘in its entirety with the end in view of
seeking to harmonize and to give effect to all provisions so
that none will be rendered meaningless.” Copper
Mountain, Inc. v. Industrial Systems, Inc., 208 P.3d
692, 697 (Colo. 2009). Courts are to give effect to the
intent and reasonable expectations of the parties and to
enforce the policy's plain language unless it is
ambiguous. Hoang v. Assurance Co. of Am., 149 P.3d
798, 801 (Colo. 2007).
Court recognizes that, unlike a negotiated contract, an
insurance policy is often imposed on a
“take-it-or-leave-it” basis. Thompson v.
Maryland Cas. Co., 84 P.3d 496, 501-02 (Colo. 2004);
Huizar v. Allstate Ins. Co., 952 P.2d 342, 344
(Colo. 1998). Therefore, the Court assumes a
“heightened responsibility” in reviewing
insurance policy terms to ensure that they comply with
“public policy and principles of fairness.”
Thompson, 84 P.3d at 501-02.
question before the Court is straightforward: could any
reasonable juror find that the Hernandez Defendants were
covered under the Policy? If so, the case should proceed to
trial; it not, summary judgment should be granted in
Plaintiff American Select's favor, ending this
litigation. Viewing the evidence submitted to the Court in
the light most favorable to the Defendants, the Court finds
that the Hernandez ...