United States District Court, D. Colorado
ORDER GRANTING IN PART MOTION FOR SUMMARY
D. Domenico United States District Judge.
diversity case was brought by a motorist against his
insurance company. After being rear-ended by an alleged
underinsured at-fault driver, the motorist claimed, but has
been unable to collect, any underinsured motorist benefits
for which he contracted and paid premiums. He now seeks
damages and statutory penalties for the insurer’s
failure to pay. Before the Court is the insurer’s
motion for summary judgment. For the following reasons, the
motion is GRANTED IN PART.
basic facts relevant to this Order are
undisputed. Plaintiff James Culichia carried an
underinsured motorist insurance policy with Defendant Safeco
Insurance Company of America. Pursuant to the policy, Safeco
agreed to pay damages caused by an accident with an
underinsured motor vehicle if Mr. Culichia were to sustain
injuries exceeding the amount he could receive from an
at-fault driver, up to the policy limit of $250,000. The
policy provides that Safeco has no duty to provide coverage
unless (1) it is notified promptly about the accident or
loss; (2) Mr. Culichia cooperates with Safeco in the
investigation, settlement, or defense of any lawsuit; (3) Mr.
Culichia submits, as often as Safeco reasonably requires, to
physical examinations by physicians selected by Safeco and
examinations under oath; and (4) Mr. Culichia authorizes
Safeco to obtain medical and other pertinent records. The
policy also states that no legal action may be brought
against Safeco until there has been full compliance with the
March 11, 2015, Mr. Culichia was rear-ended in an automobile
crash. The next day, he called Safeco to lodge a claim under
the policy. On March 15, Safeco wrote to him:
We are very sorry to hear about your accident. . . . Please
ask your medical providers to send all medical bills from the
accident to us[.] . . . If your injury is more serious or
your treatment is more extensive than what was originally
reported, please contact us as soon as possible. We may need
to contact your doctor to ensure that any additional bills or
treatments are paid promptly.
On April 28, Mr. Culichia’s attorney responded by
sending a letter of representation. On May 19, Safeco again
requested medical bills and records.
one year later, on March 2, 2016, Mr. Culichia sent Safeco the
police report associated with the accident and requested
permission to resolve the claim against the at-fault driver.
Safeco consented. On April 15, Mr. Culichia sent Safeco a
letter representing that he had settled with the at-fault
driver for the driver’s policy limits of $25,000, and
making a demand for underinsured motorist benefits of $50,000
(“First Demand”). The First Demand did not attach
any actual medical bills or records, though it did contain a
detailed breakdown of providers, dates, treatments, and
expenses totaling $11,259.98. It represented several
injuries, including a meniscus tear and sprain in the right
knee, neck and back sprains, headaches, left shoulder strain,
bicipital tendonitis, right elbow contusion, memory and focus
problems, and driving phobia and anxiety.
26, Safeco responded: “After review of the information
within our file and the documentation you have provided, we
have determined that [you were] adequately made whole by the
underlying settlement” with the at-fault
driver.Safeco added, however, that it “was
willing to re-evaluate this matter if additional
documentation is provided. Specifically, we are requesting
all medical records from three years prior to the motor
vehicle accident, [and] records from your [ ] Emergency Room
treatment.” From June 30 to December 17, 2016, Safeco
sent six more letters, each indicating its willingness to
re-evaluate its decision if Mr. Culichia provided
documentation. On January 30, 2017, it sent another letter
informing him that his file was being inactivated but stating
it would reopen and re-evaluate the claim if necessary. Mr.
Culichia did not respond to these letters.
December 4, 2017-thirty-two months after the accident and
twenty-one months after the First Demand-Mr. Culichia
submitted a supplemental demand letter, this time indicating
that the accident had caused him traumatic brain injury that
limited his ability to experience pleasure, triggered mood
swings, and reduced his motivation. He requested that Safeco
pay him the policy limit of $250,000 (“Second
Demand”). On December 28, Safeco requested complete
copies of testing data and associated studies from scans and
neurological and neuropsychological evaluations; an executed
medical authorization form; and the opportunity to obtain Mr.
January 4, 2018, Mr. Culichia wrote:
Enclosed please find a disc containing the data you requested
from Cerescan. The other diagnostic studies have been
requested and will be forwarded upon receipt. As far as Dr.
Helffenstein’s actual testing data, it cannot be
provided by Dr. Helffenstein without an Order of the Court.
It can be forwarded directly to another expert.
February 4, Safeco requested that Mr. Culchia have the
testing data sent to its retained neuropsychologist, Dr.
Suzanne M. Kenneally. On February 21, Mr. Culichia responded
that the data was ready for transmittal, but he requested
that Dr. Kenneally complete all testing prior to receipt of
the raw data “to avoid any problems with manipulation
of tests of your insured.” On February 22, Safeco
clarified that it needed a professional to review the records
and raw testing data to provide an opinion. On February 23,
Mr. Culichia responded that he did not have an issue with
undergoing an independent medical exam later. But because he
believed the statute of limitations was about to run on March
11, 2018, he requested a tolling agreement, which Safeco said
was a “very good idea.”
March 1, 2018, without further response, Mr. Culichia filed
this lawsuit against Safeco in the Colorado District Court
for Denver County. Prior to filing, he never produced the
actual neurological test data upon which he based his
traumatic brain injury claim. On April 25, Safeco removed the
case here on diversity of citizenship grounds.See 28
U.S.C. §§ 1332, 1441(a), and 1446. The Amended
Complaint contains two causes of action. First, Mr. Culichia
seeks $250,000 for alleged unreasonable delay or denial of
underinsured motorist benefits under the policy. Second, he
claims up to two times the covered benefit as statutory
damages under Colo. Rev. Stat. § 10-3-1116, which
provides that a claimant “whose claim for ...