Drum v. USAA Gen. Indem. Co.
| Decision Date | 06 March 2023 |
| Docket Number | Civil Action 21-cv-02422-NYW-SKC |
| Parties | MICHELLE DRUM, Plaintiff, v. USAA GENERAL INDEMNITY COMPANY, and INFINITY AUTO INSURANCE COMPANY, Defendants. |
| Court | U.S. District Court — District of Colorado |
This case is before the Court on the following motions: (1) Defendant USAA General Indemnity Company's Motion for Summary Judgment (“USAA's Motion”), [Doc. 34 filed September 23, 2022]; (2) Defendant Infinity Auto Insurance Company's Motion for Summary Judgment (“Infinity's Motion”), [Doc. 41, filed November 14, 2022]; and (3) Plaintiff's Motion for Summary Judgment (“Plaintiff's Motion”) [Doc. 42, filed November 15, 2022]. The Court concludes that oral argument would not materially assist in the resolution of these matters. Upon careful review of the instant Motions and corresponding briefing, the entire case file, and the applicable case law, the Court respectfully GRANTS USAA's Motion GRANTS Infinity's Motion, and DENIES Plaintiff's Motion.
This is an underinsured motorist (“UIM”) lawsuit arising from a rear-end collision that occurred on January 13, 2018 in which Plaintiff Michelle Drum (“Plaintiff” or “Ms. Drum”) was the passenger in a truck that her then-boyfriend, Frank Frucci (“Mr. Frucci”), was driving (the “Collision”).
Ms. Drum claims that, on the day of the Collision, she was an “insured” under insurance policies issued by Defendants USAA General Indemnity Company (“USAA”) and Infinity Auto Insurance Company (“Infinity” and, collectively, “Defendants”). [Doc. 5 at ¶¶ 14-15]. Ms. Drum also alleges she was an “insured” under insurance policies issued by Geico Insurance (“Geico”) and American Family Insurance (“AFI”). [Id. at ¶ 16].
After the Collision, Ms. Drum recovered $50,000.00 in available bodily injury coverage from the tortfeasor's carrier, Safeco Insurance (“Safeco”); $100,000.00 in UIM benefits from Geico; and $100,000.00 in UIM benefits from AFI, for a total of $250,000 of insurance benefits. [Doc. 35 at ¶¶ 5-7]. Ms. Drum alleges that her injuries, damages, and losses arising out of the Collision exceeded the amounts she received from Safeco, Geico, and AFI. [Doc. 5 at ¶ 19]. Therefore, she sought UIM benefits from USAA and Infinity. However, after Defendants failed to grant her such benefits, Ms. Drum initiated this action.
Ms. Drum filed her Complaint on August 3, 2021 in the District Court for Larimer County, Colorado. See generally [id.]. Therein, she asserts six causes of action-three against USAA and three against Infinity: breach of contract (Counts I and II); statutory unreasonable delay or denial of benefits pursuant to Colo. Rev. Stat. 10-3-1115 and -1116 (Counts III and IV); and common law bad faith (Counts V and VI). [Id. at 4-10]. On September 8, 2021, USAA removed this case to the United States District Court for the District of Colorado based on diversity jurisdiction. [Doc. 1]. Defendants filed their respective Motions for Summary Judgment on September 23, 2022 and November 14, 2022, [Doc. 34; Doc. 41], and Plaintiff filed her Motion for Summary Judgment on November 15, 2022, [Doc. 42]. The Motions have been fully briefed, and are thus ripe for disposition. See [Doc. 35; Doc. 40; Doc. 45; Doc. 46; Doc. 48; Doc. 49].
Under Federal Rule of Civil Procedure 56, summary judgment is warranted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011) (internal citations and quotation marks omitted). It is the movant's burden to demonstrate that no genuine dispute of material fact exists for trial, whereas the nonmovant must set forth specific facts establishing a genuine issue for trial. See Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010). At all times, the Court will “view the factual record and draw all reasonable inferences therefrom most favorably to the nonmovant.” Zia Shadows, L.L.C. v. City of Las Cruces, 829 F.3d 1232, 1236 (10th Cir. 2016).
In addition, “[c]ross-motions for summary judgment are treated as two individual motions for summary judgment and held to the same standard, with each motion viewed in the light most favorable to its nonmoving party.” Banner Bank v. First Am. Title Ins. Co., 916 F.3d 1323, 1326 (10th Cir. 2019); see also Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979) (“Cross motions for summary judgment are to be treated separately; the denial of one does not require the grant of another.”).
USAA seeks summary judgment on the basis that Ms. Drum does not meet the definition of an insured under the USAA Policy because she did not “reside” at the same address as her father Allen Drum, the named insured, at the time of the Collision. The USAA Policy listed Allen Drum's address as 413 S. Grant Avenue, Fort Collins, Colorado 80521 (the “Grant Property” or “Grant Street address”). [Doc. 34-1 at 6]. And because residence at the Grant Street address was a prerequisite to coverage as a “family member” under the USAA Policy, USAA argues that Ms. Drum cannot establish any of her claims against it. See [Doc. 34]. Ms. Drum disagrees, countering that she was indeed a “resident” of her father's home on the date of the Collision or, at a minimum, there is a genuine dispute on this issue that precludes summary judgment. See [Doc. 35 at 18-21].
Before setting forth the undisputed material facts, the Court notes that its Civil Practice Standards provide that:
In a section of the brief required by Local Civil Rule 56.1(a) styled “Statement of Undisputed Material Facts,” the movant shall set forth in simple, declarative sentences, separately numbered and paragraphed, each material fact that the movant believes is not in dispute and that supports the movant's claim that movant is entitled to judgment as a matter of law.
Civ. Practice Standard 7.1D(b)(1). In addition, the Id. at 7.1D(b)(4). And then, if the opposing party “believes that there are additional disputed questions of fact that have not been adequately addressed . . ., the party shall, in a separate section of the brief styled ‘Statement of Additional Disputed Facts,' set forth in simple, declarative sentences, separately numbered and paragraphed, each additional, material disputed fact that undercuts the movant's claim that it is entitled to judgment as a matter of law.” Id. at 7.1D(b)(5). Although the foregoing Civil Practice Standards did not take effect until December 1, 2022-i.e., after the Parties completed their briefing-this Court's previous Civil Practice Standards contained substantially the same requirements.[1]
Although USAA's opening brief substantially complies with these express requirements, see [Doc. 34 at 3-9], Ms. Drum fails to do so in the Response. Instead, she raises two issues that the Court addresses in turn. First, Plaintiff begins her Response to USAA's “Statement of Material Facts” section by stating that she “adopts the parties' undisputed facts from the Scheduling Order,” and then claiming that “[n]one of [those] facts were ever changed or requested to be modified by” USAA “until the filing of its Motion for Summary Judgment on September 30, 2022.” [Doc. 35 at 2-3 (emphasis added)]. The Parties stipulated in the Scheduling Order that “Plaintiff is an insured under USAA GIC policy number 02652 51 52 7101 0 subject to its terms, conditions, and exclusions.” [Doc. 35 at ¶ 4; Doc. 20 at 6]. On Reply, USAA contends that it cannot be bound to the Stipulated Facts as set forth in the Scheduling Order because it did not learn of the facts that give rise to its argument that Ms. Drum does not constitute an insured under the Policy-i.e., her place of “residence” at the time of the Collision. [Doc. 40 at ¶ 4].
The Court declines to preclude Defendant from challenging whether Ms. Drum is a proper insured under the Policy based on the undisputed fact in the Scheduling Order, and repeated in Plaintiff's Response, that “Plaintiff is an insured under USAA GIC policy number 02652 51 52 7101 0 subject to its terms, conditions, and exclusions.” [Doc. 35 at ¶ 4; Doc. 20 at 6]. On June 26, 2020, Plaintiff's attorney sent USAA a demand for UIM benefits, but the letter did not advise that Plaintiff had been living[2]with Mr. Frucci from 2014 to 2020. [Doc. 34 at ¶ 39; Doc. 34-6; Doc. 35 at ¶ 30].
Before her deposition in July 2022, Plaintiff had never informed USAA that she was “staying for some time” with Mr. Frucci prior to the Collision, nor did she give any indication that she was living anywhere other than the Grant Street address at the time of the Collision. [Doc. 34 at ¶ 41; Doc. 34-2 at 14:8-13; Doc. 35 at ¶ 31].[3]The Tenth Circuit addressed a similar situation in Smith v. Argent Mortgage Company, 331 Fed.Appx. 549 (10th Cir. 2009). [Doc. 40 at ¶ 4]. The Smith court affirmed a district court's decision not to give weight to the undisputed facts in a scheduling order because the facts were subsequently disputed in the parties' final pretrial order, “the determinative document for purposes of setting forth the...
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