United States District Court, D. Colorado
FRISBY MILES CARTER, on behalf of himself and all others similarly situated, Plaintiff,
AMICA MUTUAL INSURANCE COMPANY, and DOES 1-10, inclusive, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE
Michael E. Hegarty, United States Magistrate Judge.
Frisby Miles Carter, on behalf of himself and others
similarly situated (“Plaintiff”), initiated this
purported class action on September 7, 2017 and filed the
operative Amended Complaint on December 20, 2017 alleging,
inter alia, that Defendant Amica Mutual Insurance
Company (“Amica”) unlawfully failed to pay its
insureds - specifically, holders of Amica automobile
insurance policies - ownership tax and title and registration
fees associated with a motor vehicle's total loss in the
event that an automobile accident or other event results in a
total loss determination by Amica for the insured's
vehicle. In response, Amica filed a motion to dismiss all of
the Plaintiff's claims. The Court finds that Colo. Rev.
Stat. § 10-4-639(1) does not require an insurer to pay
“ownership taxes” in settlement for the total
loss of a vehicle, but the Plaintiff plausibly pleads claims
for recovery of any such “registration fees” for
his first and third claims; the Plaintiff fails to plead a
deceptive trade practice with particularity as required by
Fed.R.Civ.P. 9(b); and Plaintiff does not properly state
claims for monetary or injunctive relief on behalf of a class
under the CCPA. Thus, the Court recommends that the Honorable
Raymond P. Moore grant in part and deny in part Amica's
Statement of Facts
following are factual allegations (as opposed to legal
conclusions, bare assertions, or merely conclusory
allegations) made by the Plaintiff in the Second Amended
Complaint, which are taken as true only for analysis under
Fed.R.Civ.P. 12(b)(6) pursuant to Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
Frisby Carter obtained automobile insurance from Amica, which
covered the 2016 calendar year, for a personal Toyota Tacoma
automobile he owned during that time period. The policy
provided for coverage in the event of total loss of the motor
about October 2015, Plaintiff incurred $397.18 in ownership
taxes and registration and title fees related to the Toyota
Tacoma. On or about February 9, 2016, Plaintiff's Toyota
Tacoma was in an accident. Plaintiff submitted a claim to
Amica based on the insurance policy he had obtained for the
Toyota Tacoma. Amica apparently determined during its
investigation the Toyota Tacoma was a total loss as a result
of the accident, and provided Plaintiff with a “Total
Loss Summary, ” including an accounting of the
insurance benefits it would pay him in light of the total
loss. As stated in the “Total Loss Summary, ”
Amica did not agree to pay Plaintiff the pro-rata amount of
any ownership taxes and title and registration fees
associated with the total loss of the Toyota Tacoma, nor the
total amount of ownership taxes and title and registration
fees he incurred related to the replacement vehicle. Instead,
Amica paid Plaintiff $7.20 related to a “Title
in or about May 2016, Plaintiff incurred $144.66 in ownership
taxes and registration and title fees related to a
replacement vehicle for the Toyota Tacoma. Plaintiff did not
receive any credit from the Department of Motor Vehicles
(“DMV”) for the registration fees he incurred
when registering the replacement vehicle.
date, Amica has not paid Plaintiff, who is the policy holder,
the pro-rata amount of any ownership taxes and title and
registration fees he incurred for the Toyota Tacoma, nor has
it paid the total amount of ownership tax and registration
and title fees related to the replacement vehicle.
on these factual allegations, Plaintiff claims, on behalf of
himself and others similarly situated, violations of Colo.
Rev. Stat. § 6-1-105, et seq. and § 10-3-1115, et
seq., and bad faith breach of insurance contract. Am. Compl.,
ECF No. 39.
moves to dismiss these claims arguing that Plaintiff fails to
allege he is entitled to any ownership taxes or fees
associated with the total loss, fails to properly plead the
elements of his causes of action, fails to plead fraud with
specificity as required for an individual claim under the
Colorado Consumer Protection Act (“CCPA”), and
lacks standing to bring a claim for injunctive relief under
counters that Colorado statutory law supports his position
that ownership taxes fall within the purview of Colo. Rev.
Stat. § 10-4-639(1), and this section mandates the
payment of such taxes and fees; he has plausibly pled the
elements of all causes of action; he has properly pled fraud
with specificity; and he is not aware of binding case law
prohibiting class-wide injunctive relief under the CCPA.
replies that Plaintiff fails to articulate facts supporting
an allegation that Plaintiff incurred unpaid fees and taxes
covered by the statute and associated with the total
loss, and “Plaintiff's alleged entitlement to
specific unpaid fees and taxes under C.R.S § 10-4-639(1)
is a necessary condition precedent to each claim
alleged”; he fails to allege facts to support the
elements of a claim that Amica unreasonably denied or delayed
responding to a request for payment of a covered benefit
under the insurance policy; his breach of contract claim is
supported only by conclusory allegations; and his CCPA class
and individual claims must be dismissed.
parties do not dispute that the pleading requirements of
Fed.R.Civ.P. 9(b) apply to Plaintiff's CCPA claim;
otherwise, the Court will apply Fed.R.Civ.P. 8 and applicable
case law to analyze Amica's Rule 12(b)(6) motion.
Pleading Requirements under Fed.R.Civ.P. 9(b)
to Federal Rule of Civil Procedure 9(b), a more stringent
pleading standard is mandated for certain claims, such as
fraud or misrepresentation. “For any claim alleging
fraud, the circumstances constituting fraud or mistake must
be stated with particularity.” In re Accelr8 Tech.
Corp. Secs. Litig., 147 F.Supp.2d 1049, 1054 (D. Colo.
2001) (citing Fed.R.Civ.P. 9(b)). Thus, with regard to their
second claim alleging a violation of the CCPA, Plaintiffs
must plead “the who, what, when, where, and how of the
alleged fraud” or in other words, “the time,
place, and contents of the false representation, the identity
of the party making the false statements and the consequences
thereof.” United States ex rel. Sikkenga v. Regence
Bluecross Blueshield of Utah, 472 F.3d 702, 726-27 (10th
Cir. 2006); see also HealthONE of Denver, Inc. v.
UnitedHealth Grp., Inc., 805 F.Supp.2d 1115, 1120-21 (D.
Colo. 2011) (“a plaintiff must meet the heightened
pleading requirements pursuant to Rule 9(b) to prove a
deceptive or unfair trade practice.”). In the District
of Colorado, this is required regardless of whether the
alleged fraud is an active representation or a passive
omission. See Tara Woods Ltd. P'ship v. Fannie
Mae, 731 F.Supp.2d 1103, 1114 (D. Colo. 2010).
Dismissal Pursuant to Fed.R.Civ.P. 12(b)(6)
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Plausibility, in the context of a motion to dismiss,
means that the plaintiff pled facts which allow “the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
Twombly requires a two-prong analysis. First, a court
must identify “the allegations in the complaint that
are not entitled to the assumption of truth, ” that is,
those allegations which are legal conclusions, bare
assertions, or merely conclusory. Id. at 678-80.
Second, the Court must consider the factual allegations
“to determine if they plausibly suggest an entitlement
to relief.” Id. at 681. If the allegations
state a plausible claim for relief, such claim survives the
motion to dismiss. Id. at 680.
refers “to the scope of the allegations in a complaint:
if they are so general that they encompass a wide swath of
conduct, much of it innocent, then the plaintiffs ‘have
not nudged their claims across the line from conceivable to
plausible.'” Khalik v. United Air Lines,
671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)).
“The nature and specificity of the allegations required
to state a plausible claim will vary based on context.”
Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210,
1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard
does not require that a plaintiff establish a prima facie
case in a complaint, the elements of each alleged cause of
action may help to determine whether the plaintiff has set
forth a plausible claim. Khalik, 671 F.3d at 1191.
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678. The
complaint must provide “more than labels and
conclusions” or merely “a formulaic recitation of
the elements of a cause of action, ” so that
“courts ‘are not bound to accept as true a legal
conclusion couched as a factual allegation.'”
Twombly, 550 U.S. at 555 (quoting Papasan v.
Allain, 478 U.S. 265, 286 (1986)). “Determining
whether a complaint states a plausible claim for relief will
. . . be a context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. “[W]here
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, ” the
complaint has made an allegation, “but it has not shown
that the pleader is entitled to relief.” Id.
(quotation marks and citation omitted).
seeks dismissal of all three claims for relief alleged by the
Plaintiff: (1) violations of Colo. Rev. Stat. §
10-3-1115, et seq.; (2) violations of Colo. Rev. Stat. §
6-1-105, et seq.; and (3) bad faith breach of insurance
contract. The Court will address Amica's requests for
dismissal of each of these claims in turn.
First Claim for Relief
their § 10-3-1115 claim, Plaintiffs allege:
28. C.R.S. § 10-4-639(a) [sic] provides in relevant part
that an insurer shall pay title fees and any other transfer
or registration fees associated with the total loss of a
29. C.R.S. § 10-3-1115(1)(a) provides in relevant part
that a person engaged in the business of insurance shall not
unreasonably delay or deny payment of a claim for benefits
owed to or on behalf of any first-party claimant.
30. Despite its own determination the insured vehicles of
Plaintiff and the Class Members were total losses, when
claims were submitted by Plaintiff and the Class Members
after a motor vehicle accident or other event resulted in
damage to their property, Amica failed to pay the pro-rata
amount of ownership taxes and title and registration fees
related to the totaled vehicle or the total amount of
ownership tax and title and registration fees related to the
replacement vehicle, required by C.R.S. § 10-4-639(a)
[sic], and therefore violated the express language of that
statute. Plaintiff seeks these two alternative forms of
relief as the statute is unclear as to which form of relief