United States District Court, D. Colorado
Brooke Jackson United States District Judge
order addresses and grants defendant's motion to dismiss.
following facts are taken from plaintiff's Amended
Complaint, ECF No. 20, and are assumed to be true for
purposes of the pending motion.
Hurd owns a five-unit residential building in Denver. On July
4, 2015 a fire caused by an air conditioner damaged the
building including the unit in which Mr. Hurd was residing.
He submitted a claim to his insurer, Auto-Owners Insurance
Company. Auto-Owners retained AmeriClaim of Denver to inspect
the damage. Mr. Hurd engaged a public adjuster, Adjusters
International Colorado, to assist him with his claim.
estimated a “Replacement Cost Value” of $112,
111.71. On August 10, 2015 Auto-Owners issued a draft in the
amount of $43, 124.03, payable to Mr. Hurd and the Adjusters
International Colorado, for what it determined to be the
“Actual Cost Value” of the damage less the
deductible under the policy. Mr. Hurd did not receive the
draft. On August 26, 2015 Mr. Hurd terminated his contract
with Adjusters International Colorado. On August 27, 2015
Auto-Owners issued a second draft payable to Mr. Hurd and
Adjusters International Colorado in the amount of $16,
799.83. Again, Mr. Hurd did not receive the draft. Neither
draft has ever been cashed.
Mr. Hurd was disputing AmeriClaim's estimate of damage,
primarily because he believed it did not provide for repairs
sufficient to comply with the Denver Building Code, including
asbestos mitigation. In March 2016 Mr. Hurd submitted his own
estimate for damages and repairs, totaling $255, 523.39.
re-inspected the property in April 2016. On June 15, 2016
Auto-Owners issued a third draft payable to Mr. Hurd and
Adjusters International Colorado in the amount of $4, 981.86.
Whether Mr. Hurd received that draft is unclear. On June 30,
2016 Auto-Owners issued its fourth and final draft, this time
payable to Mr. Hurd, Adjusters International Colorado and
Environmental Excellence Consulting and Testing (an asbestos
testing company) in the amount of $3, 152.00. He apparently
received this one but believed that accepting it would
endorse asbestos testing results with which he disagreed.
also in June 2016 Mr. Hurd retained counsel. Unfortunately,
on September 15, 2016 the lawyer informed Mr. Hurd that he
was ill and returned the file. On September 16, 2016
Auto-Owners' claims adjuster sent an email to Mr.
Hurd's former counsel with a “deadline” of
October 17, 2016 to resolve the claim. The former counsel
responded on September 20, 2016 and asked the adjuster to
contact Mr. Hurd directly. On September 22, 2016 the adjuster
“allegedly left a voicemail for Plaintiff.” ECF
No. 20 at 27. On October 19, 2016 the adjuster sent Mr. Hurd
a letter advising him that the claim file was closed.
Hurd turned 82 years old on July 4, 2017. He states that by
that time he “had repeatedly told carrier, verbally and
in writing, he did not understand the payment and review
process for the damage to his home and asked for
clarification.” Id. At 29. Finally, on August
11, 2017 Mr. Hurd “attempt[ed] to contact Defendant
with no response.” Id. At 30.
29, 2018 Mr. Hurd, represented by counsel, filed the present
lawsuit in the Denver District Court. Auto-Owners removed the
case to this Court based on diversity of citizenship and
thereafter filed a motion to dismiss for failure to state a
claim pursuant to Fed.R.Civ.P. 12(b)(6). ECF No. 12. Mr.
Hurd, still represented by counsel, filed a response but
simultaneously filed a motion to amend his complaint. ECF
Nos. 14 and 15. The Court granted the motion to amend, which
mooted the motion to dismiss. ECF Nos. 18 and 19.
Amended Complaint was filed on November 27, 2018. Three days
later plaintiff's counsel moved to withdraw, citing a
breakdown in the attorney-client relationship. ECF No. 21. On
December 11, 2018 the motion to withdraw was granted.
Auto-Owners filed the pending motion to dismiss on the same
day. ECF No. 24.
Hurd, now representing himself, did not respond to the motion
to dismiss. However, on February 12, 2019 - well after the
deadline for responding to the motion had passed - Mr. Hurd
moved for the appointment of counsel pursuant to this
district's Civil Pro Bono Program. ECF No. 30. The Court
held a scheduling conference on February 13, 2019 and issued
a Scheduling Order. ECF Nos. 29, 32. On February 19, 2019 the
Court issued an order appointing counsel from the Civil Pro
Bono panel to represent Mr. Hurd, thus mooting the pending
motion for such an appointment. ECF No. 33.
more than five months the Clerk's Office attempted to
locate a member of the Civil Pro Bono Panel who was available
and willing to take Mr. Hurd's case. Finally, on July 31,
2019 the Court issued a Minute Order which explained its
failure to find a pro bono lawyer for Mr. Hurd and set a new
deadline of August 19, 2019 to file a response to the motion
to dismiss that had been pending since December 11, 2018. The
Court warned that if no response were filed, the Court would
review the motion and either grant it on its merits or