United States District Court, D. Colorado
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants’ Motion for
Summary Judgment (the “Motion”) (ECF No. 35) and
Defendants’ Motion to Deem Motion for Summary Judgment
Confessed by Plaintiff (ECF No. 37). Plaintiff filed no
response to either motion and the time to do so has passed.
The motions are ripe for resolution.
judgment is appropriate only if there is no genuine dispute
of material fact and the moving party is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986); Henderson v.
Inter-Chem Coal Co., Inc., 41 F.3d 567, 569– 70
(10th Cir. 1994). Whether there is a genuine dispute as to a
material fact depends upon whether the evidence presents a
sufficient disagreement to require submission to a jury or is
so one-sided that one party must prevail as a matter of law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251–52 (1986); Stone v. Autoliv ASP, Inc., 210
F.3d 1132, 1136 (10th Cir. 2000); Carey v. United States
Postal Serv., 812 F.2d 621, 623 (10th Cir. 1987). Once
the moving party meets its initial burden of demonstrating an
absence of a genuine dispute of material fact, the burden
then shifts to the nonmoving party to demonstrate the
existence of a genuine dispute of material fact to be
resolved at trial. See 1-800-Contacts, Inc. v. Lens.com,
Inc., 722 F.3d 1229, 1242 (10th Cir. 2013) (citation
party’s failure to file a response to a summary
judgment motion is not, by itself, a sufficient basis on
which to enter judgment against the party. The district court
must make the additional determination that judgment for the
moving party is ‘appropriate’ under Rule 56.
Summary judgment is appropriate only if the moving party
demonstrates that no genuine issue of material fact exists
and that it is entitled to judgment as a matter of
law.” Reed v. Bennett, 312 F.3d 1190, 1195
(10th Cir. 2002). “Because a failure to respond means
the facts are considered undisputed, the court should accept
as true all material facts asserted and properly supported in
the summary judgment motion. But only if those facts entitle
the moving party to judgment as a matter of law should the
court grant summary judgment.” Wilson v. Vill. of
Los Lunas, 572 F. App’x 635, 640 (10th Cir. 2014)
(quotations and citation omitted). If the evidence produced
in support of the summary judgment motion fails to meet this
burden, “‘summary judgment must be denied
even if no opposing evidentiary matter is
presented.’” Reed, 312 F.3d at 1194
(quoting Adickes v. S.H. Kress & Co., 398 U.S.
144, 160 (1970) (emphasis in original)).
an action by Plaintiff against its insurer,
Defendants, for underinsured motorist coverage
(“UIM”) under Policy Number PX2708658 (the
“Policy”). Plaintiff alleges that he was injured
by alleged tortfeasor Casey Thompson, a non-party in this
case, in a car accident. After Plaintiff settled his
negligence action (the “underlying case”) against
Mr. Thompson and his father with no finding or
admission of liability, he filed this action for breach of
the insurance contract based on Defendants’ alleged
failure to fully compensate him under the Policy.
insurance policy is a contract, which should be interpreted
consistently with the well-settled principles of contractual
interpretation.” Allstate Ins. Co. v. Huizar,
52 P.3d 816, 819 (Colo. 2002). Under Colorado law, to recover
on a claim for breach of contract, a party must prove: (1)
the existence of a contract; (2) performance by the plaintiff
or some justification for nonperformance; (3) failure to
perform the contract by the defendant; and (4) resulting
damages to the plaintiff. W. Distrib. Co. v.
Diodosio, 841 P.2d 1053, 1058 (Colo. 1992).
“Insuring Agreement” to the Policy provides that
the insurer “will pay compensatory damages which an
insured [Plaintiff] is legally entitled to recover from the
owner or operator of an uninsured motor vehicle
because of bodily injury: 1. Sustained by an
insured; and 2. Caused by an accident.” (ECF
No. 36-4, p. 20 (emphasis in original).) Under the
Policy, an uninsured motor vehicle includes an underinsured
motor vehicle. (ECF No. 36-4, p. 21 at C.2.)
Defendants’ Motion seeks summary judgment on the basis
that Plaintiff cannot establish the alleged tortfeasor was
liable for Plaintiff’s injuries and, therefore, that
Defendants breached the Policy by failing to pay Plaintiff
UIM benefits. The Court agrees.
Colorado law, to prevail on his negligence claim against Mr.
Thompson in the underlying case, Plaintiff must prove
“‘the existence of a legal duty owed by the
defendant to the plaintiff, a breach of that duty, injury to
the plaintiff, and a causal relationship between the breach
and the injury.’” Mathison v. United
States, 619 F. App’x 691, 693 (10th Cir. 2015)
(quoting Gerrity Oil & Gas Corp. v. Magness, 946
P.2d 913, 929 (Colo. 1997)). Here, Plaintiff has endorsed no
accident reconstructionist or person to opine as to the
liability of Mr. Thompson for the alleged accident and has
provided no argument that expert testimony is not required.
Accordingly, Defendants have shown that Plaintiff cannot
establish that an underinsured motorist (Mr. Thompson) is
liable to him for his alleged injuries, i.e., that Plaintiff
is “legally entitled to recover” from Mr.
Thompson under the Policy.
Defendants have also shown that Plaintiff cannot establish
any injuries allegedly sustained were “caused by an
accident” as required under the Policy.
“‘While the issue of causation is ordinarily a
question for the jury, when the facts are undisputed and
reasonable minds could draw but one inference from them,
causation becomes a question of law for the
court.’” Mathison, 619 F. App’x at
693 (quoting Gibbons v. Ludlow, 304 P.3d 239, 244
(Colo. 2013)). Plaintiff alleges numerous injuries which he
contends are continuing and may be permanent.
Defendants’ expert, however, opines that
Plaintiff’s complained of conditions are most likely
the result of natural aging and a chronic degenerative
condition, and cannot be attributed to the accident.
Plaintiff fails to challenge these opinions, provide rebuttal
evidence, or present any argument that no expert testimony is
needed to establish causation of his alleged injuries.
Accordingly, Plaintiff cannot establish causation required
under the Policy.
proof that Plaintiff “is legally entitled to
recover” from Mr. Thompson for “bodily
injury” Plaintiff allegedly sustained that was
“[c]aused by an accident,” Defendants have no
contractual obligation to make UIM payments to Plaintiff.
Therefore, Defendants are not liable for any alleged breach
of contract. Accordingly, Defendants are entitled to summary
judgment on Plaintiff’s claim.