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Shaw v. Shelter Mutual Insurance Co.

United States District Court, D. Colorado

April 10, 2019

SHARON SHAW, Plaintiff,
v.
SHELTER MUTUAL INSURANCE COMPANY, d/b/a Shelter Insurance Companies, Defendant.

          ORDER

          Kristen L. Mix United States Magistrate Judge

         This matter is before the Court on Plaintiff's Motion for Partial Summary Judgment [#32][1] (the “Motion”). Defendant filed a Response [#33] in opposition to the Motion, and Plaintiff filed a Reply [#40]. The Court has reviewed the Motion, Response, Reply, the exhibits attached thereto, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Motion [#32] is DENIED as moot in part and DENIED in part.[2]

         I. Background [3]

         Plaintiff Sharon Shaw (“Plaintiff”) was involved in an automobile/pedestrian collision on Abbey Road in Southern Pueblo County, Colorado. Final Pretrial Order [#36] § 4(a). Defendant Shelter Mutual Insurance Company (“Defendant”) is Plaintiff's insurer, with an underinsured motorist limit of $250, 000. Id. § 4(b). At approximately 9:45 p.m. on October 9, 2015, Plaintiff was driving north on Abbey Road, which is a two-lane road with a single lane for northbound traffic and a single lane for southbound traffic. Id. § 4(c). Plaintiff stopped and exited her vehicle from the driver's side door and was struck by a southbound vehicle driven by Lee Morey (“Morey”). Id. § 4(d). At the time of the collision, it was dark and there were no street lights in the area. Id. Plaintiff suffered injuries, and was paid the limits of Mr. Morey's liability policies through GEICO and Travelers Insurance Company, for a total of $275, 000. Id. § 4(j). Plaintiff filed an underinsured motorist claim, which Defendant ultimately denied. Id. § 4(g).

         In her Complaint, Plaintiff asserts that Defendant is liable for the damages Mr. Morey negligently caused to her up to the $250, 000 underinsurance coverage limit. Compl. [#3] ¶ 44. Plaintiff asserts the following three claims against Defendant: (1) “Underinsured Motorist/Declaratory Judgment”; (2) a breach of contract claim for denying underinsured motorist benefits; and (3) a statutory unreasonable delay and denial of Plaintiff's claim for underinsured motorist benefits. Id. at 9-10. The parties stipulate that the nature and extent of Plaintiff's injuries, damages, and losses are such that if the jury determines that Mr. Morey is more than 50% at fault for the accident, then Plaintiff is entitled to the full $250, 000 of Defendant's insurance policy limits. Final Pretrial Order [#36] § 4(e).

         Turning to the instant Motion, Plaintiff first moves for entry of summary judgment in her favor on six of the affirmative defenses raised by Defendant in its Answer [#32-4]. Motion [#32] at 6-11. In its Response, Defendant concedes to withdraw the six affirmative defenses, see [#33] at 2, and subsequently did so within the Final Pretrial Order entered by the Court on June 18, 2018, see [#36] at 4.[4] Therefore, to the extent that Plaintiff seeks summary judgment on those affirmative defenses, the Motion is DENIED as moot.

         Plaintiff next seeks a ruling from the Court that, as a matter of law, the underinsured motorist, Mr. Morey, was negligent and the sole cause of the October 9, 2015 collision. Motion [#32] at 12-14. Defendant objects to such a finding and argues that “[w]hether or not Mr. Morey was at fault for this accident and to what extent any such negligence caused the accident is a question for the jury.” Response [#33] at 17.

         II. Legal Standards

         A. Motion for Summary Judgment

         The purpose of a motion for summary judgment pursuant to Fed.R.Civ.P. 56 is to assess whether trial is necessary. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Pursuant to Fed.R.Civ.P. 56(a), summary judgment should be entered if the pleadings, the discovery, any affidavits, and disclosures on file show “that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” An issue is genuine if the evidence is such that a reasonable jury could resolve the issue in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it might affect the outcome of the case under the governing substantive law. Id.

         The burden is on the movant to show the absence of a genuine issue of material fact. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (citing Celotex, 477 U.S. at 323). When the movant does not bear the ultimate burden of persuasion at trial, the “movant may make its prima facie demonstration [of the absence of a genuine issue of material fact] simply by pointing out to the [C]ourt a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.” Id. at 671. If the movant carries the initial burden of making a prima facie showing of a lack of evidence, the burden shifts to the nonmovant to put forth sufficient evidence for each essential element of his claim such that a reasonable jury could find in his favor. 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), abrogation recognized by Dewitt v. Sw. Bell Tel. Co., 845 F.3d 1299, 1308 (10th Cir. 2017). The nonmovant must go beyond the allegations and denials of his pleadings and provide admissible evidence, which the Court views in the light most favorable to him. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir. 1995) (citing Celotex, 477 U.S. at 324). Conclusory statements based merely on conjecture, speculation, or subjective belief are not competent summary judgment evidence. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). The nonmoving party's evidence must be more than “mere reargument of [its] case or a denial of an opponent's allegation” or it will be disregarded. See 10B Charles Alan Wright, et. al., Federal Practice and Procedure § 2738 at 356 (3d ed. 1998).

         B. Choice of Law

         As the Court previously stated, the parties appear to agree that Colorado law governs this case because the Policy is a Colorado policy issued to a Colorado driver, and the accident at issue occurred in Colorado. See Order [#35] at 4. Moreover, with respect to the present Motion, both parties cite Colorado law throughout their briefing. See generally Motion [#32]; Response [#33]; Reply [#40]. Accordingly, the Court applies federal procedural law and Colorado substantive law. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941) (applying choice of law rules of the forum state in a diversity case); Essex Ins. Co. v. Vincent, 52 F.3d 894, 896 (10th Cir. 1995). “When the federal courts are called upon to interpret state law, the federal court must look to the rulings of the highest state court, and, if no such rulings exist, must endeavor to predict how that high court would rule.” Johnson v. Riddle, 305 F.3d 1107, 1118 (10th Cir. 2002).

         III. ...


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