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Dreyer v. American National Property & Casualty Co.

United States District Court, D. Colorado

July 10, 2019




         THIS MATTER comes before the Court pursuant to the Defendant's (“American”) Motion to Dismiss (# 17), the Plaintiffs' (“the Dreyers”) response (# 26), and American's reply (# 27). For the reasons that follow, the motion is granted.


         The Court exercises diversity jurisdiction over this action pursuant to 28 U.S.C. § 1332. Sitting in diversity, this Court applies Colorado law to the parties' dispute. See Perlmutter v. U.S. Gypsum Co., 4 F.3d 864, 869 (10th Cir. 1993).

         II. FACTS

         The facts, as recited in the Dreyers' Amended Complaint (# 15), are straightforward. American issued a homeowner's policy to Wayne and Lou Ann Fundus. In March 2015, while that policy was in effect, the Funduses suffered damage to their home from a brushfire. They made a claim on their policy, and American paid the claim. The Amended Complaint alleges that “following the brushfire, ” the Funduses removed vegetation around their house, including a large bush. The Amended Complaint is not specific as to whether the bush removal was necessitated by repairs owing to the brushfire, as opposed to merely being performed after the brushfire, but the Court will assume that the brushfire compelled removal of the bush. The Amended Complaint is not specific as to when the removal of the bush occurred. The removal of the bush left a hole on the property, but the Funduses did not repair or adequately fill that hole. The hole became overgrown with grass, becoming a dangerous condition on the property.

         In or about August 2015, American cancelled or elected not to renew the Funduses' policy.

         In October 2015, Plaintiff Paul Dreyer “was assisting the Funduses to repair the property after the brushfire.” (# 15 at 4). (Again, it is not clear from the Amended Complaint whether these repairs were required by damage from the fire or whether they simply occurred after the fire, but again, the Court will assume that the repairs involved damages sustained during the fire.) Mr. Dreyer placed a ladder against the side of the home, but because of the hole left in the property from the removal of the bush, the ladder shifted, Mr. Dreyer fell and was injured. The Dreyers filed suit against the Funduses in the Colorado District Court for Logan County, and the Funduses tendered a claim on their policy with American.

         American denied the claim on the grounds that the policy was no longer in effect at the time of Mr. Dreyer's injury. Without insurance coverage, the Funduses entered into a Nunn v. Mid-Century Ins. Co., 244 P.3d 116 (Colo. 2010) agreement with the Dreyers, conceding liability to the Dreyers in exchange for the Dreyers agreeing to accept assignment of any claims the Funduses might have against American relating to the policy in lieu of execution of any judgment against the Funduses.[1] Specifically, the Funduses assigned “all their rights, title, and interest that they may have to claims against [American]”, which “may include … claims for breach of contract, bad faith breach of insurance contract, and statutory bad faith.”[2] (# 1-4).

         The Dreyers, as assignees of the Funduses, now bring the following claims against American: (1) breach of contract; (2) common law bad faith breach of contract; (3) statutory unreasonable delay in payment; (4) violation of the Colorado Consumer Protection Act (“CCPA”); (5) violation of Colorado's Unfair Claims Practices Act; and (6) willful and wanton conduct. (# 15).


         In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all well-pleaded allegations in the Amended Complaint as true and view those allegations in the light most favorable to the nonmoving party. Stidham v. Peace Officer Standards & Training, 265 F.3d 1144, 1149 (10th Cir. 2001) (quoting Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)). The Court must limit its consideration to the four corners of the Amended Complaint, any documents attached thereto, and any external documents that are referenced in the Amended Complaint and whose accuracy is not in dispute. Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001); Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002); Dean Witter Reynolds, Inc. v. Howsam, 261 F.3d 956, 961 (10th Cir. 2001).

         A claim is subject to dismissal if it fails to state a claim for relief that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To make such an assessment, the Court first discards those averments in the Complaint that are merely legal conclusions or “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. at 678-79. The Court takes the remaining, well-pleaded factual contentions, treats them as true, and ascertains whether those facts (coupled, of course, with the law establishing the requisite elements of the claim) support a claim that is “plausible” or whether the claim being asserted is merely “conceivable” or “possible” under the facts alleged. Id. What is required to reach the level of “plausibility” varies from context to context, but generally, allegations that are “so general that they encompass a wide swath of conduct, much of it innocent, ” will not be sufficient. Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012).

         IV. ...

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