United States District Court, D. Colorado
MELODIE BUSHMAN, on behalf of herself and all others similarly situated, Plaintiff,
NATIONWIDE AGRIBUSINESS INSURANCE COMPANY, an Iowa Corporation, and DOES 1-10 inclusive, Defendant.
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO
William J. Martinez United States-District Judge
putative class action, Plaintiff Melodie Bushman
(“Bushman”) sues Defendant Nationwide
Agribusiness Insurance Company (“Nationwide”) for
its alleged systemic failure to pay certain amounts that a
Colorado statute requires insurers to pay when insureds'
motor vehicles are declared a total loss. Currently before
the Court is Nationwide's Motion to Dismiss
Plaintiff's First Amended Class Action Complaint and
Strike Allegations of Punitive and Exemplary Damages
(“Motion to Dismiss”). (ECF No. 34.) For the
reasons explained below, the Court finds that Bushman has
failed to plausibly plead a central fact on which her
recovery relies, and so the Court will grant the Motion to
Dismiss on that basis and deny it without prejudice on all
other bases. The Court will also grant Bushman leave to
before the Court is Nationwide's Rule 72 Objections to
the Magistrate Judge's Order on Nationwide's Motion
to Stay. (ECF No. 57.) Because the purported basis for a stay
no longer exists, this objection will be overruled as moot.
Rule of Civil Procedure 12(b)(6) permits the Court to dismiss
for “failure to state a claim upon which relief can be
granted.” The Rule 12(b)(6) standard requires the Court
to “assume the truth of the [claimant's]
well-pleaded factual allegations and view them in the light
most favorable to the [claimant].” Ridge at Red
Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir.
2007). In ruling on such a motion, the dispositive inquiry is
“whether the complaint [or counterclaim] contains
‘enough facts to state a claim to relief that is
plausible on its face.'” Id. (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Granting a motion to dismiss “is a harsh
remedy which must be cautiously studied, not only to
effectuate the spirit of the liberal rules of pleading but
also to protect the interests of justice.” Dias v.
City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th
Cir. 2009) (internal quotation marks omitted). “Thus,
‘a well-pleaded complaint [or counterclaim] may proceed
even if it strikes a savvy judge that actual proof of those
facts is improbable, and that a recovery is very remote and
unlikely.'” Id. (quoting Twombly,
550 U.S. at 556).
Court draws the following allegations from the First Amended
Complaint (“complaint”) (ECF No. 25), and the
Court assumes them to be true for present purposes.
in 2016 or earlier, Bushman leased a Hyundai automobile.
(Id. ¶ 10.) Bushman “incurred an
estimated $232.09 in ownership taxes and title and
registration fees” related to that vehicle.
March 23, 2016, Bushman's Hyundai was in an accident.
(Id. ¶ 11.) At that time, the vehicle was
covered by a Nationwide policy that provided total-loss
coverage. (Id. ¶ 9.) Nationwide soon determined
that the Hyundai was, indeed, a total loss. (Id.
¶ 12.) Nationwide adjusted the claim and, as part of
that adjustment, reimbursed Bushman for $9.50 in
“Tag/Title Fees.” (Id. ¶ 14.)
claims that Nationwide has violated Colorado Revised Statute
§ 10-4-639(1), which provides, “An insurer shall
pay title fees, sales tax, and any other transfer or
registration fee associated with the total loss of a motor
vehicle.” In other words, although she does not
explicitly say so, she appears to claim that the $9.50
reimbursement for “Tag/Title Fees” did not
satisfy the statute's obligation. (See ECF No.
25 ¶ 14 (“To date, Nationwide has not paid the
policyholder, Ms. Bushman, the total amount of any ownership
tax and title and registration fees associated with the total
loss of the Hyundai.” (capitalization normalized)).)
Bushman alleges on information and belief that Nationwide has
similarly underpaid other insureds who suffered a total loss,
and so seeks to certify this lawsuit as a class action.
(Id. ¶¶ 15-25.)
specific claims for relief are as follows:
1. violation of Colorado Revised Statutes §§
10-3-1115 & -1116, which prohibits unreasonable delay or
denial of insurance benefits owed;
2. violation of the Colorado Consumer Protection Act
(“CCPA”), Colo. Rev. Stat. §§ ...