United States District Court, D. Colorado
Kristen L. Mix United States Magistrate Judge
matter is before the Court on Plaintiff's Motion
for Partial Summary Judgment [#32] (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
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).
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] §
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. Therefore, to the extent that Plaintiff
seeks summary judgment on those affirmative defenses, the
Motion is DENIED as moot.
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.
Motion for Summary Judgment
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.
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).
Choice of Law
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).