United States District Court, D. Colorado
ORDER GRANTING SUMMARY JUDGMENT
WILLIAM J. MARTÍNEZ, UNITED STATES DISTRICT JUDGE
insurance action, Plaintiffs Dr. Tyrone Johnson and Michelle
Johnson (collectively, “Plaintiffs”) bring a
breach of contract claim seeking payment of underinsured
motorist (“UIM”) insurance benefits under a
policy issued by Defendant American National Property &
Casualty Companies (“American National”), as well
as a common law bad faith breach of insurance contract claim
and a statutory claim for unreasonable delay or denial of
insurance benefits under Colorado Revised Statutes
§§ 10-3-1115 & -1116. Dr. Johnson alleges that
he was injured in a car accident, and Ms. Johnson brings a
corresponding loss of consortium claim. Before the Court is
American National's Motion for Summary Judgment (the
“Motion”). (ECF No. 29.) For the reasons
explained below, the Court grants the Motion.
judgment is warranted under Federal Rule of Civil Procedure
56 “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);
see also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248-50 (1986). A 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). An issue
is “genuine” if the evidence is such that it
might lead a reasonable trier of fact to return a verdict for
the nonmoving party. Allen v. Muskogee, 119 F.3d
837, 839 (10th Cir. 1997).
analyzing a motion for summary judgment, a court must view
the evidence and all reasonable inferences therefrom in the
light most favorable to the nonmoving party. Adler v.
Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.
1998) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986)). In addition, the
Court must resolve factual ambiguities against the moving
party, thus favoring the right to a trial. See Houston v.
Nat'l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir.
as here, “the moving party does not bear the ultimate
burden of persuasion at trial, it may satisfy its burden on a
motion for summary judgment 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). If the movant meets this
burden, the burden shifts to the nonmovant “to go
beyond the pleadings and set forth specific facts that would
be admissible in evidence in the event of trial from which a
rational trier of fact could find for the nonmovant.”
Adler, 144 F.3d at 671 (internal quotation marks
omitted). A party must support an assertion that a fact is
genuinely disputed by “citing to particular parts of
materials in the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations, . . . admissions, interrogatory
answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A).
and self-serving statements are insufficient to survive
summary judgment.” Ford v. West, 222 F.3d 767,
777 (10th Cir. 2000). Likewise, “general denials, or
mere argument of an opposing party's case cannot be
utilized to avoid summary judgment, ” Pasternak v.
Lear Petroleum Expl., Inc., 790 F.2d 828, 834 (10th Cir.
1986), and “[v]ague, conclusory statements do not
suffice to create a genuine issue of material fact, ”
Ford, 222. F.3d at 777. Rather, “[t]o survive
summary judgment, a nonmoving party must set forth specific
facts showing that there is a genuine issue for trial as to
those dispositive matters for which he carries the burden of
proof.” Christy v. Travelers Indem. Co. of
Am., 810 F.3d 1220, 1233 (10th Cir. 2016) (internal
quotation marks omitted). Moreover, this Court is not obliged
to “comb the record” to identify factual disputes
or make a party's case for it. Ford, 222 F.3d at
777. Rather, “on a motion for summary judgment, it
is the responding party's burden to ensure that the
factual dispute is portrayed with particularity, without
depending on the trial court to conduct its own search of the
record.” Cross v. The Home Depot, 390 F.3d
1283, 1290 (10th Cir. 2004) (internal quotation marks
omitted) (emphasis added).
majority of the facts as presented by American National in
the summary judgment briefing are undisputed. Plaintiffs do
not present additional facts in their response brief. (ECF
No. 32 at 6-7.)
Johnson was involved in a slip-and-fall in his bathroom on
April 18, 2012, and suffered a concussion and traumatic brain
injury. (ECF No. 29-20 at 1.) Though not explicitly set forth
in the facts section by either party, Dr. Johnson's prior
injury is relevant to the parties' dispute.
February 6, 2014, Dr. Johnson was in a car accident with
“the underlying tortfeasor, ” David Hurley. (ECF
No. 33 at 2, ¶ A.) Ms. Johnson was not involved.
(Id.) Dr. Johnson claims that he sustained injuries
from the accident resulting in pain, suffering, permanent
impairment, lost wages, and a loss of earning capacity due to
his inability to continue his work as a chiropractor.
(Id.; see ECF No. 5 ¶ 7.) Ms. Johnson
claims loss of consortium due to Dr. Johnson's injuries.
(ECF No. 33 at 2, ¶ A.)
Johnson sought and received $100, 000 in compensation from
Hurley, the policy limits of Hurley's insurance carrier,
on June 23, 2016. (Id. ¶ B.) Ms. Johnson did
not seek loss of consortium from Hurley. (Id.)
American National granted consent to settle with the
Hurley's insurance company. (Id. ¶ E.)
30, 2016, Dr. Johnson notified American National of his claim
for UIM benefits under a policy he maintained with American
National, and American National acknowledged receipt of the
claim. (Id. at 3, ¶¶ C, E.) Dr.
Johnson's claim letter asked American National to
“review Dr. Johnson's file, ” but did not
include a specific monetary demand. (Id. ¶ D.)
Johnson's policy contained the following provision for
We will pay damages for bodily injury which an insured person
is legally entitled to recover from the owner or operator of
an uninsured or underinsured motor vehicle. The bodily injury
must be caused by an accident and result from the ownership,