Etherton v. Owners Ins. Co.
Decision Date | 30 September 2013 |
Docket Number | Civil Action No. 10-cv-00892-PAB-KLM |
Parties | DONALD L. ETHERTON, Plaintiff, v. OWNERS INSURANCE COMPANY, Defendant. |
Court | U.S. District Court — District of Colorado |
ORDER
This matter is before the Court on Plaintiff's Motion to Amend or Alter Judgment Pursuant to F.R.C.P. 59(e) [Docket No. 110] filed by plaintiff Donald L. Etherton on February 11, 2013. The Court's jurisdiction is based on 28 U.S.C. § 1332(a)(1).
Plaintiff brought this case against Owners Insurance Company ("Owners"), following a motor vehicle accident on December 19, 2007. Docket No. 70 at 4, ¶ 1. Plaintiff, who was injured in the accident, settled with the at-fault driver for $250,000. Id. at ¶ 4. Plaintiff then sought uninsured/underinsured motorist ("UIM") coverage from defendant, pursuant to an insurance policy with a $1,000,000 limit. Docket No. 70 at 4, ¶ 3. Defendant offered to settle the claim for $150,000. Docket No. 70 at 2. Plaintiff requested that defendant provide an explanation for the amount of the settlement offer and requested that defendant tender the $150,000 offer as the "undisputed" portion of his claim. Defendant refused both requests and this litigation followed. Docket No. 23at 8.
Plaintiff filed this case in the District Court for the County of Boulder, Colorado, on March 9, 2010, alleging breach of contract, willful and wanton breach of an insurance contract, violation of the Colorado Consumer Protection Act ("CCPA"), Colo. Rev. Stat. § 6-1-101 et seq., and unreasonable delay or denial of an insurance claim in violation of Colo. Rev. Stat. §§ 10-3-1115, 1116. Docket No. 1-2 at 4-10, ¶¶ 27-80. Defendant removed the case to this Court on April 21, 2010. Docket No. 1. On February 18, 2011, in response to defendant's motion for summary judgment [Docket No. 23], plaintiff voluntarily withdrew his claims for willful and wanton breach of contract and violation of the CCPA. Docket No. 33.
Following a six-day trial beginning on January 14, 2013, the jury found in favor of plaintiff on his two remaining claims (breach of contract and violation of § 10-3-1115) and awarded him $1,382,000 in actual economic and non-economic damages. Docket No. 109 at 2, ¶¶ 3-5. The Court reduced this amount to $750,000, the coverage limit under plaintiff's insurance policy. See Docket No. 109 at 2. The Court then doubled this amount pursuant to Colo. Rev. Stat. § 10-3-1116(1) (). Thus, the Court awarded plaintiff a total of $1.5 million, in addition to reasonable attorney's fees and costs. Docket No. 109 at 3.
Mr. Etherton filed the instant motion to alter or amend the Court's judgment on the grounds that § 10-3-1116 entitles him to recover damages on his breach of contract claim in addition to the statutory award of "two times the covered benefit." Docket No.110 at 2, ¶ 4. In other words, Mr. Etherton believes that he is entitled to $2.25 million for the two claims.
"Rule 59(e) allows a party to direct the district court's attention to newly discovered material evidence or a manifest error of law or fact, and enables the court to correct its own errors and thus avoid unnecessary appellate procedures." Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996). Such a motion is appropriate in the event of "(1) an intervening change in the controlling law, (2) new evidence previously unavailable, [or] (3) the need to correct clear error or prevent manifest injustice," and may be granted "where the court has misapprehended the facts, a party's position, or the controlling law." Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Clear error is "(1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Farr, 701 F.3d 1274, 1286 (10th Cir. 2012). An error is "manifest" if it is "plain and indisputable, and that amounts to a complete disregard of the controlling law or the credible evidence in the record." BLACK'S LAW DICTIONARY 582 (8th ed. 2004).
Rule 59 "does not provide a vehicle for a party to undo its own procedural failures, and it certainly does not allow a party to introduce new evidence or advance arguments that could and should have been presented to the district court prior to the judgment." Moro, 91 F.3d at 876. The decision to grant or deny a Rule 59 motion is committed to the Court's discretion. Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir.1997).
In construing a statute, Colorado courts "aim to ascertain and give effect to the intent of the General Assembly." Dubois v. People, 211 P.3d 41, 43 (Colo. 2009). "If the language in the statute is clear and the intent of the General Assembly may be discerned with reasonable certainty, it is not necessary to resort to other rules of statutory interpretation." McKinney v. Kautzky, 801 P.2d 508, 509 (Colo. 1990). "If, however, the language of the statute is ambiguous, or in conflict with other provisions, [courts] then look to legislative history, prior law, the consequences of a given construction, and the goal of the statutory scheme, to ascertain the correct meaning of a statute." People v. Luther, 58 P.3d 1013, 1015 (Colo. 2002).
Plaintiff argues that the award available under Colo. Rev. Stat. § 10-3-1116(1) constitutes a penalty, the amount of which is to be measured by the "covered benefit," but the nature of which is otherwise independent from a common law contract claim. Docket No. 128 at 2, ¶ 3 (). Defendant counters that the award available under § 10-3-1116(1) comprises both an award of damages on the underlying contract and a penalty in an amount equal to such contract damages. Docket No. 122 at 5 ().
In support of their contentions, both parties cite the plain language of the statute, which provides, in pertinent part:
Colo. Rev. Stat. § 10-3-1116(1), (4). Plaintiff argues that this language does not exclude recovery on a parallel breach of contract claim and, in fact, invites such a recovery by stating that this section "does not limit or affect[] other actions available by statute or common law." Docket No. 110 at 6, ¶¶ 15-16; see also Kisselman v. Am. Family, 292 P.3d 964, 972 (Colo. App. Dec. 8, 2011) ( ).
Defendant counters that the use of the phrase "covered benefit" in § 10-3-1116(1) indicates that damages for breach of contract are included in the statutory award. Docket No. 122 at 5 (). Defendant relies on the second sentence of § 10-3-1116(4), arguing that, since there are no other claims that provide for recovery of double the covered benefit, this sentence can only refer to claims awarding the covered benefit itself, such as a breach of contract claim. Docket No. 122 at 5-7.
Other courts interpreting this language have come to conflicting conclusions.The Colorado Court of Appeals held in Mahoney v. Am. Family Mutual Ins. Co., 2012 WL 4711921 (Colo. App. Oct. 4, 2012) [Docket No. 128-1 at 3] that "10-3-1116(1) provides for an award of two times the covered benefit on statutory bad faith claims, regardless of whether an insurer paid the covered benefits by the time of trial." In reaching this conclusion, the court relied in part on Rabin v. Fidelity Nat'l Prop. & Cas. Ins. Co., 863 F. Supp. 2d 1107 (D. Colo. 2012). In Rabin, the court reasoned that:
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