Booker v. State Farm Mutual Automible Insurance Co.

          ORDER

          Michael E. Hegarty, United States Magistrate Judge.

         Before 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.

         FINDINGS OF FACT

         The Court makes the following findings of fact viewed in the light most favorable to Plaintiff, who is the non-moving party in this matter.

         1. Plaintiff is a professional hairstylist and cosmetologist. ECF No. 37-16 at 16: 1 - 17.

         2. From 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.

         3. A 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.

         4. From 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.

         5. On 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 first accident.

         6. 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.

         7. Before the two accidents, Plaintiff could work ten to twelve hours per day. ECF No. 37-16 at 135: 7 - 14.

         8. 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 - 15.

         9. On 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.

         10. In 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. ...