United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
Y. Wang United States Magistrate Judge
matter comes before the court on Defendant Metropolitan
Property and Casualty Insurance Company's
(“Defendant” or MetLife”) Motion for
Summary Judgment (or “Motion”). [#32]. This civil
action was referred to the undersigned Magistrate Judge to
preside over fully for all purposes. See [#15];
Fed.R.Civ.P. 73; D.C.COLO.LCivR 72.2. The court concludes
that oral argument will not materially assist in the
resolution of this matter. Accordingly, upon careful review
of the Motion and associated briefing, the applicable case
law, and the entire docket, the court GRANTS IN
PART and DENIES IN PART the Motion
for Summary Judgment.
Michelle Stoole (“Plaintiff” or “Ms.
Stoole”) initiated this matter in the Denver County
District Court on or about February 14, 2017. See
[#1 at ¶ 2; #3]. Plaintiff asserts three claims against
MetLife for: (1) breach of an insurance contract
(“breach of contract”) (“Claim 1”);
(2) common law bad faith breach of an insurance contract
(“common law bad faith”) (“Claim 2”);
and (3) unreasonable delay and denial of insurance benefits
pursuant to Colo. Rev. Stat. §§ 10-3-1115, -1116
(“statutory bad faith”) (“Claim 3”).
See generally [#3]. MetLife removed this suit to
this District, invoking this court's diversity
jurisdiction pursuant to 28 U.S.C. § 1332. See
undersigned held a Scheduling Conference with the Parties and
entered a Scheduling Order setting, among others, a deadline
for filing dispositive motions of March 9, 2018. See
[#16; #17]. Upon MetLife's request, the court extended
the dispositive motions deadline to March 30, 2018,
see [#27], the date on which Defendant filed the
instant Motion. See [#32]. Plaintiff has since filed
her Response [#33], including a stipulated-to Amended
Response [#40], and Defendant has filed its Reply [#41].
The Motion for Summary Judgment is now ripe.
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)).
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. Relatedly,
when a defendant moves for summary judgment to test an
affirmative defense, it is the defendant's burden to
demonstrate the absence of any disputed fact as to the
affirmative defense asserted. See Helm v. Kansas,
656 F.3d 1277, 1284 (10th Cir. 2011).
either instance, once the movant meets its initial burden the
burden shifts to the nonmovant to put forth sufficient
evidence to demonstrate the essential elements of her
claim(s), 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), and
to “demonstrate with specificity the existence of a
disputed fact” as to the defendant's affirmative
defense, see Hutchinson v. Pfeil, 105 F.3d 562, 564
(10th Cir. 1997). 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.
See10B Charles Alan Wright, et al., Federal Practice
and Procedure § 2738 at 356 (3d ed.1998). But the
“court [will] view the record and draw all
inferences in the light most favorable to the non-moving
party.” Pepsi-Cola Bottling Co. of Pittsburg, Inc.
v. Pepsico, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005).
following facts are drawn from the record before the court
and are undisputed unless otherwise noted. On or about
September 23, 2011, a non-party, Ms. Ha Vo, rear-ended Ms.
Stoole's vehicle. See [#3 at ¶ 1; #40-12 at
¶¶ 2-5; #40-15 at 2]. At the time of the traffic
collision Ms. Stoole was insured by MetLife Policy
833-28-0008-0 (the “Policy”), which provided a
$100, 000 per person limit for underinsured motorist coverage
(“UIM”). See [#32-15 at 2]. Plaintiff
subsequently brought suit against Ms. Vo in Denver County
District Court (the “Underlying Suit”), asserting
claims for negligence and negligence per se for the
traffic collision and resulting injuries to Ms. Stoole.
letter dated November 5,  2012, Plaintiff's counsel infromed
MetLife that Ms. Stoole would assert a UIM claim in
connection with the Underlying Suit if applicable.
See [#40-11 at 3-4]. MetLife responded on or about
November 19, 2012, requesting information regarding Ms.
Stoole's medical treatment, bills, and records, as well
as attaching a medical authorization for all of Ms.
Stoole's medical records. See [#32-1]. Between
November 30, 2012 and May 30, 2013, Ms. Stoole's counsel
sent MetLife four letters seeking disbursement of
Plaintiff's medical payments coverage to reimburse
Plaintiff for her out-of-pocket medical expenses.
See [#40-1; #40-2; #40-3; #40-4]. Each letter
purportedly attached Ms. Stoole's medical bills incurred
to date as a result of the traffic collison. See
[#40-1; #40-2; #40-3; #40-4]; see also [#40-5
(Plaintiff's medical records)].
settled the Underlying Suit with Ms. Vo's insurer for
$98, 000. See [#3 at ¶¶ 28- 29; #40-13].
The Denver County District Court then dismissed the
Underlying Suit on or about August 14, 2015. See
[#40-14]. About September 1, 2015, Ms. Stoole sent MetLife a
UIM demand for the full $100, 000 available under the Policy.
See [#40-15]. Defendant acknolwedged receipt of the
demand [#40-16], and then offered Ms. Stoole $3, 500 to
settle her UIM claim on or about October 2, 2015 [#40-17].
between the Parties through their respective counsel soon
became strained and sporadic. See, e.g., [#32-2 at
¶¶ 14-20 (detailing MetLife's claim
adjuster's attempts to correspond with Plaintiff's
counsel)]. The Parties exchanged several correspondences
expressing their divergent views on whether Ms. Stoole
submitted all relevant medical records and documents related
to the Underlying Suit, inclunding an independent medical
examination (“IME”) report and Plaintiff's
deposition transcripts, see, e.g., [#32-5; #32- 6;
#40-6; #32-7; #40-19; #32-9; #40-20]; whether Ms. Stoole was
undergoing additional treatment for her injuries,
compare [#32-2 at ¶¶ 14-20; #40-8 at 1;
#40-22 at 92:6-9,  92:14-20] with [#32-10 at 73:4-11
(testifying that her treatment ceased in 2013)]; whether she
had accepted MetLife's $3, 500 offer; and whether she
would sign MetLife's medical authorization, see,
e.g., [#40-18 at 2].
December 2016, Defendant tendered $3, 500 to Plaintiff for
the undisputed amount of her UIM claim. See [#32-2
at ¶ 21; #32-10 at 91:3-6]. Because Plaintiff believed
she was entitled to the full $100, 000 UIM limit, this
litigation ensued. See generally [#3].
Claim 1 - Breach of Contract
Colorado, to recover for an alleged breach of contract a
plaintiff must prove: (1) the existence of a contract; (2)
the plaintiff's performance of its contractual
obligations or its justification(s) for non-performance; (3)
the defendant's failure to perform; and (4) the
plaintiff's damages. See Xtreme Coil Drilling Corp.
v. Encana Oil & Gas (USA), Inc., 958 F.Supp.2d 1238,
1243 (D. Colo. 2013) (citing W. Distrib. Co. v.
Diodosio, 841 P.2d 1053, 1058 (Colo. 1992)). “The
interpretation of an insurance contract is a question of
law” to which traditional principles of contract
interpretation apply. USAA Cas. Ins. Co. v. Anglum,
119 P.3d 1058, 1059 (Colo. 2005); Chacon v. Am. Family
Mut. Ins. Co., 788 P.2d 748, 750 (Colo. 1990). Thus,
“‘[c]ourts should not rewrite insurance policy
provision[s] that are clear and unambiguous.'”
Lovell v. State Farm Mut. Auto. Ins. Co., 466 F.3d
893, 902 (10th Cir. 2006) (quoting Compass Ins. Co. v.
City of Littleton, 984 P.2d 606, 613 (Colo. 1999)).
here, an insured may forfeit her ability to recover under the
insurance contract “only when, in violation of a policy
provision, ” she “fails to cooperate with the
insurer in some material and substantial respect.”
Ahmadi v. Allstate Ins. Co., 22 P.3d 576, 579
(Colo.App. 2001). “[T]his failure to cooperate [must]
materially and substantially disadvantage the
insurer.” Soicher v. State Farm Mut. Auto. Ins.
Co., 351 P.3d 559, 564 (Colo.App. 2015). An
inconsequential lack of cooperation is immaterial, and an
insured's failure to cooperate may be excused if due to a
mistake or a showing that there was no exercise of bad faith.
See Hansen v. Barmore, 779 P.2d 1360, 1364
(Colo.App. 1989). “[T]he question of whether the
insured failed to cooperate with the insurer is a question of
fact for the trial court.” See Summit Bank &
Tr. v. Am. Modern Home Ins. Co., 71 F.Supp.3d 1168, 1176
(D. Colo. 2014).
moves for summary judgment on Claim 1, arguing that Ms.
Stoole breached the Policy's cooperation provision,
thereby excusing Defendant's performance obligations.
See [#32 at 11-16; #41 at 5-8]. In support, MetLife
focuses on Ms. Stoole's failure to: (1) sign a medical
authorization, (2) provide MetLife with all of her relevant
medical records, (3) timely inform MetLife of a potential UIM
claim, (4) respond to MetLife's $3, 500 settlement offer,
and (5) provide expert reports and deposition transcripts
from the Underlying Suit. See [#32 at 11- 16; #41 at
5-8]. Ms. Stoole counters by attacking the legality of
MetLife's medical authorization, arguing that the law
does not require her to waive her physician-patient privilege
to receive UIM benefits, that the medical authorization is
unconscionable, and that the medical release violates state
law as well as federal law and regulations. See [#40