United States District Court, D. Colorado
Michael E. Hegarty, United States Magistrate Judge.
the Court is Defendant State Farm Mutual Automobile Insurance
Company's Motion for Summary Judgment Pursuant to
Fed.R.Civ.P. 56. ECF No. 34. Plaintiff asserts four claims
for relief: (1) declaratory judgment for underinsured
motorist (“UIM”) benefits; (2) breach of
contract; (3) bad faith breach of insurance contract; and (4)
unreasonable delay and denial of UIM benefits pursuant to
Colo. Rev. Stat. §§ 10-3-1115 and 10-3-1116. ECF
No. 4 ¶¶ 47-94. Defendant moves for summary
judgment on Claims 2-4. For the reasons that follow, the
Motion is denied.
Court makes the following findings of fact viewed in the
light most favorable to Plaintiff, who is the non-moving
party in this matter.
Plaintiff is a professional hairstylist and cosmetologist.
ECF No. 37-16 at 16: 1 - 17.
February 2010 to February 2012, she worked “on
commission” at J.C. Penney. Working on commission was
favorable to Plaintiff at the time, because it allowed her to
build a clientele base without owing expenses to the salon.
Id. at 131: 1 - 11.
hairstylist can make more money by renting a booth at a
salon. Under this model, Plaintiff would pay a flat rate to a
salon and keep the fees she charged her clients. Id.
at 131: 1 - 134: 4.
February 2012 to February 2014, Plaintiff rented a booth at
New York Moon Salon and Boutique. Id. at 130: 7 -
13, 142: 1 - 5. She changed salons and rented a booth at
Virtue Salon from February 2014 to December 2015.
Id. at 142: 21 - 24.
August 26, 2012, Plaintiff was involved in an automobile
accident that is not the subject matter of this lawsuit. ECF
No. 34 ¶ 2; ECF No. 37 ¶ 2. As will be discussed
further below, the injuries Plaintiff sustained in this
accident were more serious than her second accident.
Plaintiff was not insured by Defendant at the time of the
Approximately nine months later, on June 7, 2013, Plaintiff
was involved in an accident with Shaina Almer. ECF No. 34
¶ 1; ECF No. 37 ¶ 1. At this time, Plaintiff was
insured by Defendant with a policy that included $50, 000.00
in UIM coverage. See ECF No. 37-3.
Before the two accidents, Plaintiff could work ten to twelve
hours per day. ECF No. 37-16 at 135: 7 - 14.
After the accidents, Plaintiff could only work five to six
hours per day and limited the number of clients she would
accept as a result. At times, her injuries would cause her to
miss work entirely. Id. at 135: 16 - 136: 5, 148: 6
September 13, 2013, Plaintiff notified Defendant of her
intent to file a UIM claim if Ms. Almer's insurance was
insufficient to cover her damages. ECF No. 34-2.
October 2015, Plaintiff requested and received
Defendant's consent to settle with Ms. Almer's
insurer for the policy limit of $25, 000.00. ECF No. ...