United States District Court, D. Colorado
OPINION AND ORDER GRANTING MOTION TO DISMISS
S. KRIEGER, SENIOR UNITED STATES DISTRICT JUDGE
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.
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).
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.
about August 2015, American cancelled or elected not to renew
the Funduses' policy.
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.
denied the claim on the grounds that the policy was no longer
in effect at the time of Mr.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. 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.” (# 1-4).
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).
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).
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).