United States District Court, D. Colorado
ORDER DENYING MOTION TO REMAND
E. BLACKBURN, UNITED STATES DISTRICT JUDGE
matter before me is Plaintiff's Objection to
Removal and Motion for Remand [#12],  filed June 27,
2019. I deny the motion.
removed this case to federal court based on diversity of
citizenship. 28 U.S.C. § 1441(b). Plaintiff does not
contest that the parties are completely diverse or that the
amount in controversy exceeds $75, 000 exclusive of interest,
costs, and attorney fees. See 28
U.S.C. § 1332(a). Instead, he claims the case was
unremovable pursuant to 28 U.S.C. § 1445(c) because his
claim for bad faith breach of insurance contract in
connection with the handling of his workers' compensation
claim is one “arising under the workmen's
compensation laws” of Colorado.
cannot agree. The majority of federal courts to consider this
issue have determined that a claim does not “arise
under” the workers' compensation laws unless the
cause of action is embedded in the state's workers'
compensation statute. See, e.g., Harper
v. Autoalliance International, Inc., 392 F.3d 195, 204
(6th Cir. 2004); Patin v. Allied Signal,
Inc., 77 F.3d 782, 787-789 (5th Cir. 1996);
Humphrey v. Sequentia, Inc., 58 F.3d 1238, 1245-46
(8th Cir. 1995). The Tenth Circuit followed this
same rationale in Suder v. Blue Circle, Inc., 116
F.3d 1351 (10th Cir. 1997). There, the court found
a cause of action for bad faith breach of insurance contract
nonremovable because it was part of Oklahoma's
workers' compensation act. See Id. at 1352. In
so doing, the court distinguished Spearman v. Exxon Coal
USA, Inc., 16 F.3d 722 (7th Cir.), cert.
denied, 115 S.Ct. 377 (1994), because the retaliatory
discharge claim found removable there was based in general
state tort law, rather than the statutory workers'
compensation scheme. Id. Thus, the court distilled
and endorsed the following principle:
Under the plain meaning of the [removal] statute, where a
state legislature enacts a provision within its workers
compensation laws and creates a specific right of action, a
civil action brought to enforce that right of action is, by
definition, a civil action arising under the workers'
compensation laws of that state and therefore § 1445(c)
applies; under such circumstances, the action would be
non-removable, subject only to the complete preemption
Id. (citation omitted, alteration in original).
See also Reed v. Heil Co., 206 F.3d 1055, 1060
(11th Cir. 2000) (retaliatory discharge claim
arose under Alabama workers' compensation laws because
codified therein). By reverse implication, a cause of action
which is not enacted within the state's
workers' compensation laws would not be subject to
section 1445(c) and would be removable.
that rationale, two courts in this district have held that
the duty of good faith and fair dealing does not arise under
Colorado's workers' compensation scheme. See Webb
v. Transcontinental Insurance Co., 2006 WL 1409521 (D.
Colo. May 22, 2006); Nunn v. St. Paul Travelers,
2006 WL 827403 (D. Colo. March 28, 2006). As set forth by the
district court in Nunn, a claim of bad faith breach
of insurance contract was first recognized under Colorado
common law in 1984. 2006 WL 827403 at *2 (citing Decker
v. Browning-Ferris Industries of Colorado, Inc., 931
P.2d 436, 445 & n.8 (Colo. 1997)). Although that duty was
codified subsequently elsewhere in the Colorado statutes, it
is not part of the state workers' compensation laws, but
rather is considered a “public policy tort.”
Id. See also Webb, 2006 WL 1409521 at *2 (Colorado
workers' compensation act “‘contains no
provision indicating that claims against an employer or
insurer for bad faith in handling a claim for compensation or
treatment are covered by its provisions”') (quoting
Travelers Insurance Co. v. Savio, 706 P.2d 1258,
1264 (Colo.1985)). Because such claims are not codified in
Colorado's workers' compensation laws, the courts
found removal proper.
cogent decisions, as well as the holding and logic in
Suder, compel me to conclude that plaintiff's
claim for bad faith breach of insurance contract, although
related to his claim for workers' compensation benefits,
does not arise out of the workers' compensation laws.
Defendants' removal therefore was not precluded by 28
U.S.C. § 1445(c). Accordingly, plaintiff's motion to
remand must be denied.
IT IS ORDERED that Plaintiff's Objection
to Removal and Motion for Remand [#12], filed June
27, 2019, is denied.
 “[#12]” is an example of
the convention I use to identify the docket number assigned
to a specific paper by the court's case management and
electronic case filing system (CM/ECF). I use ...