United States District Court, D. Colorado
DEREK THOMPSON, individually and as Personal Representative of the Estate of Cynthia Thompson, Plaintiff,
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant.
A. BRIMMER UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant State Farm's
Motion for Summary Judgment [Docket No. 58]. The Court has
jurisdiction pursuant to 28 U.S.C. § 1332.
case arises out of a dispute over underinsured motorist
(“UIM”) benefits. On August 11, 2013, Cynthia
Thompson was a passenger in a motor vehicle accident with an
underinsured driver. Docket No. 58 at 2, ¶ 3. Ms.
Thompson claimed that she suffered injuries, damages, and
losses as a result of the accident. Id., ¶ 4.
On December 3, 2013, the underinsured driver's insurance
carrier paid Ms. Thompson $25, 000, the limits of the
driver's insurance policy, to settle her claim for
liability. Id., ¶ 6. On February 5, 2014, Ms.
Thompson died in her sleep. Id., ¶ 7. Her
autopsy revealed that she had a 50 mcg/hr fentanyl
transdermal patch on her upper back. Id., ¶ 9.
The postmortem examination report further stated that Ms.
Thompson's lungs showed evidence of pulmonary congestion
and edema and that she had multiple drugs in her system,
including diazepam and fentanyl. Id., ¶ 10. The
Certificate of Death lists “Respiratory Arrest”
and “Multiple prescription drug intoxication” as
the “Immediate Cause” of Ms. Thompson's
death. Id. at 3, ¶ 12. It is undisputed that
Ms. Thompson was not prescribed fentanyl at any time between
August 11, 2013 and February 5, 2014. Id. at 2-3,
¶¶ 5, 13.
time before August 11, 2013, defendant issued four automobile
insurance policies, each with a $100, 000 UIM limit, to Ms.
Thompson's parents. Id. at 3, ¶ 17; Docket
No. 4 at 4, ¶ 43. Those policies were in effect at the
time of the accident that injured Ms. Thompson. Docket No. 58
at 3, ¶ 17. On June 18, 2014, plaintiff's counsel
informed defendant that plaintiff would be pursuing a
wrongful death claim as well as a survival action on behalf
of Ms. Thompson's estate. Id., ¶ 14. On
July 31, 2014, defendant advised counsel that, while it was
continuing to investigate plaintiff's insurance claims,
defendant did not have sufficient documentation to determine
whether Ms. Thompson's death was a direct result of the
motor vehicle accident. Id. at 4, ¶ 20.
Plaintiff was appointed personal representative of Ms.
Thompson's estate on March 9, 2015. Id. at 4,
¶ 22. On April 1, 2015, defendant informed plaintiff
that it had offered to settle his survival claim for $69,
700, but still needed documentation showing that Ms.
Thompson's death was the result of the motor vehicle
accident in order to determine whether plaintiff was entitled
to additional benefits. Id., ¶ 24. On October
26, 2015, defendant sent plaintiff another letter informing
him that, because it had not received additional
documentation regarding the cause of Ms. Thompson's
death, it would not pay any benefits beyond the $69, 700 that
was offered to settle the survival claim. Id. at 5,
filed this lawsuit on April 5, 2016 in the District Court for
Mesa County, Colorado. See Docket No. 4 at 1. On May
20, 2015, defendant removed the case to this Court on the
basis of diversity jurisdiction. See Docket No. 1 at
1. In his amended complaint, plaintiff asserts Colorado state
law claims for: (1) declaratory judgment; (2) breach of
contract; (3) common law bad faith breach of an insurance
contract; and (4) unreasonable denial of UIM benefits under
Colo. Rev. Stat. §§ 10-3-1115 and 10-3-1116. Docket
No. 4 at 6-12. Defendant moved for summary judgment on all
claims on June 8, 2017. Docket No. 58. On June 29, 2017,
plaintiff filed a preliminary response to defendant's
motion as well as a motion for relief under Fed.R.Civ.P.
56(d), requesting that the Court defer ruling on the motion
for summary judgment to allow plaintiff additional time to
conduct discovery. Docket Nos. 59, 60. After the close of
expert discovery on January 15, 2018, the Court ordered the
parties to file supplemental briefs regarding the motion for
summary judgment. Docket No. 99. Plaintiff filed his
supplemental response on January 30, 2018, Docket No. 109, to
which defendant replied on February 13, 2018. Docket No. 110.
judgment is warranted under Federal Rule of Civil Procedure
56 when 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);
see Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248-50 (1986). A disputed fact is
“material” if under the relevant substantive law
it is essential to proper disposition of the claim.
Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32
(10th Cir. 2001). Only disputes over material facts can
create a genuine issue for trial and preclude summary
judgment. Faustin v. City & Cty. of Denver, 423
F.3d 1192, 1198 (10th Cir. 2005). An issue is
“genuine” if the evidence is such that it might
lead a reasonable jury to return a verdict for the nonmoving
party. Allen v. Muskogee, 119 F.3d 837, 839 (10th
“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.” Bausman v. Interstate Brands Corp.,
252 F.3d 1111, 1115 (10th Cir. 2001) (internal quotation
marks omitted) (quoting Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 671 (10th Cir. 1998)). “Once
the moving party meets this burden, the burden shifts to the
nonmoving party to demonstrate a genuine issue for trial on a
material matter.” Concrete Works of Colo., Inc. v.
City & Cty. of Denver, 36 F.3d 1513, 1518 (10th Cir.
1994). The nonmoving party may not rest solely on the
allegations in the pleadings, but instead must designate
“specific facts showing that there is a genuine issue
for trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986) (internal quotation marks omitted). “To
avoid summary judgment, the nonmovant must establish, at a
minimum, an inference of the presence of each element
essential to the case.” Bausman, 252 F.3d at
1115. When reviewing a motion for summary judgment, a court
must view the evidence in the light most favorable to the
non-moving party. Id.
Declaratory Judgment and Breach of Contract
first claim for relief, plaintiff seeks a declaratory
judgment that “he is entitled to UIM benefits under the
State Farm policies, in an amount to be determined at
trial.” Docket No. 4 at 7, ¶ 69. In his second
claim, plaintiff contends that defendant breached the terms
of the relevant insurance policies by refusing to pay
plaintiff UM/UIM benefits for Ms. Thompson's death.
See Id. at 7-10, ¶¶ 73-103. Defendant
seeks summary judgment on both claims, arguing that plaintiff
has failed to present any evidence establishing that the
August 11, 2013 automobile accident proximately caused Ms.
Thompson's death. See Docket No. 58 at 8-9.
parties have not included copies of the relevant insurance
policies in the summary judgment record. However, they appear
to agree that Colorado tort law governs the causation issue
in this case. See Docket No. 58 at 8-9 (applying
Colorado tort law on proximate causation); Docket No. 59 at
12-14 (same). Applying Colorado tort law to the issue of
proximate causation comports with Colorado's
uninsured/underinsured motorist (“UM/UIM”)
benefits statute, which provides:
No automobile liability or motor vehicle liability policy
insuring against loss resulting from liability imposed by law
for bodily injury or death suffered by any person arising out
of the ownership, maintenance, or use of a motor vehicle
shall be delivered or issued for delivery in this state with
respect to any motor vehicle licensed for highway use in this
state unless coverage is provided therein or supplemental
thereto, in limits for bodily injury or death set forth in
section 42-7-103(2), C.R.S., under provisions approved by the
commissioner, for the protection of persons insured
thereunder who are legally entitled to recover ...