Goodwin v. Homeland Cent. Ins. Co., 05CA2038.

Citation172 P.3d 938
Case DateJune 28, 2007
CourtCourt of Appeals of Colorado
172 P.3d 938
Robert GOODWIN, individually, and Brinda Goodwin, as next friend for Mariah Jones and Blaze Goodwin, Plaintiffs-Appellants,
HOMELAND CENTRAL INSURANCE COMPANY, f/k/a Hawkeye Security Insurance Company, an Iowa corporation, Defendant-Appellee.
No. 05CA2038.
Colorado Court of Appeals, Div. I.
June 28, 2007.
As Modified on Denial of Rehearing October 25, 2007.

[172 P.3d 940]

The Carey Law Firm, Robert B. Carey, Leif Garrison, Colorado Springs, Colorado; Walter H. Sargent, P.C., Walter H. Sargent, Colorado Springs, Colorado, for Plaintiffs-Appellants.

Bayer & Carey, P.C., Gary L. Palumbo, Peter M. Spiessbach, Denver, Colorado, for Defendant-Appellee.

Opinion by Judge J. JONES.

This case concerns an automobile accident in which plaintiffs, members of the Goodwin family, suffered severe injuries. The Goodwins sued Homeland Central Insurance Company, on behalf of themselves and all others similarly situated, claiming Homeland had failed to offer them extended personal injury protection (PIP) benefits.

The trial court granted class certification as to the Goodwins' reformation claim, and granted summary judgment in favor of the Goodwins and the class on that claim, reforming their insurance contracts with Homeland to provide extended PIP benefits. The trial court denied class certification as to the Goodwins' remaining claims, and entered summary judgment in Homeland's favor on those claims, except for the Goodwins' claim for bad faith breach of insurance contract. At trial, the trial court granted Homeland's motion for a directed verdict on that claim, and subsequently awarded Homeland its costs.

The Goodwins appeal the trial court's dismissal of their breach of contract and insurance bad faith claims, certain of its evidentiary rulings, its refusal to allow further discovery concerning class members, its refusal to award them attorney fees and costs, and its award of costs to Homeland.

We conclude that the Goodwins' appeal is untimely except as to the attorney fees and costs issues, and accordingly dismiss the appeal as to all other issues. We affirm the trial court's order concerning attorney fees

172 P.3d 941

and costs, and we remand the case to the trial court for correction of the form of the judgment.

I. Background

On May 21, 1998, plaintiff Robert Goodwin drove a truck in which his wife, Brinda, and their three children, Blaze, Mariah, and Grannit, were passengers. The truck was owned by Chris Reynolds, a relative, who had given Robert permission to use it. The truck collided with another vehicle. All the Goodwins were injured.

At the time of the accident, Reynolds held an automobile insurance policy issued by Homeland. Reynolds's policy provided PIP benefits at the minimum levels required by § 10-4-706 of the former Colorado Auto Accident Reparations Act (the No-Fault Act), Colo. Sess. Laws 1973, ch. 94, § 13-25-6 at 335 (formerly codified as amended at § 10-4-706; No-Fault Act repealed effective July 1, 2003, Colo. Sess. Laws 2002, ch. 189, § 10-4-726 at 649), including up to $100,000 per individual for combined medical and rehabilitation benefits. It is undisputed that the Goodwins are covered under Reynolds's policy.

Robert, Blaze, and Mariah incurred expenses above the $100,000 limit. Homeland formally denied coverage for all amounts that exceeded that limit.

The Goodwins (except Grannit) subsequently filed this action against Homeland, asserting that it had failed to offer them extended PIP benefits as required by former § 10-4-710(2), Colo. Sess. Laws 1973, ch. 94, § 13-25-10 at 339 (formerly codified as amended at § 10-4-710). (Brinda brought claims only in a representative capacity on behalf of Blaze and Mariah.) The Goodwins asserted claims for reformation of Reynolds's insurance policy to include extended PIP benefits, breach of contract, breach of the duty of good faith and fair dealing, statutory willful and wanton breach of contract, bad faith breach of contract, and deceptive trade practices. The Goodwins also requested class certification pursuant to C.R.C.P. 23 as to these claims on behalf of similarly situated persons covered by Homeland policies.

On February 2, 2001, the trial court granted the Goodwins' motion for partial summary judgment on the reformation claim, ruling that Homeland's "practice of selling automobile insurance to Colorado residents without offering extended benefits was in violation of the No-Fault Law, as a matter of law." The order noted that the policy issued to Reynolds "was identical or substantially similar to those issued all [Homeland] Colorado policy-holders," and that "[f]or all such persons' policies, [Homeland] did not offer extended [PIP] benefits." The court ordered that "the above-described [Homeland] policies shall be, and hereby are, reformed to reflect the extended [PIP] benefits. . . ."

On December 18, 2001, the trial court granted the Goodwins' motion for class certification. As a result, Homeland was required to identify potential class members. On November 6, 2002, the court issued an order compelling Homeland to produce additional information and documents regarding unidentified class members. On September 21, 2003, the trial court approved a notice of class action for all class members informing them of the nature of the litigation, and their right to participate in it or to opt out of the class.

On October 30, 2003, the trial court entered an order decertifying the class on the ground the class was not so numerous as to make joinder of individual plaintiffs impractical. On December 30, 2003, the trial court entered an order vacating its earlier order decertifying the class. It recertified the class and expanded the class definition. That order defined the class as follows:

All persons who were either a named insured, resident relative of the named insured, passenger or pedestrian (as defined by C.R.S. § 10-4-707) under [Homeland] policies that were issued without an offer of extended PIP benefits coverage that included non-resident relative passengers and pedestrians having been made and who were injured in an automobile accident [on] or after July 1, 1992, to the present but excluding all [Homeland] executives, their legal counsel and their immediate family members.

172 P.3d 942

This definition of the class controlled throughout the trial court proceedings.

The court sent a new notice of class action to all class members on April 8, 2004, informing them that they did not need to take any action to be included in the class, but if they wished to be excluded from the class they needed to mail such a request no later than May 12, 2004. On April 30, 2004, the court decertified the class as to all claims except the reformation claim, concluding the other claims of the putative class members did not share common questions of fact.

Homeland paid the Goodwins extended PIP benefits in February 2003. The trial court ordered Homeland to pay the Goodwins and certain class members eighteen percent interest per annum on extended PIP benefits from the date of the reformation of the insurance contracts, which was February 2, 2001.

Homeland then moved for summary judgment on the Goodwins' individual breach of contract claims, contending that because all the PIP benefits under the reformed policy had been paid to the Goodwins, there could be no breach. The trial court agreed and granted Homeland's motion. In the course of the litigation, the trial court also granted Homeland's other motions for partial summary judgment pertaining to certain remedies sought by the Goodwins and their claim for deceptive trade practices. This left only the Goodwins' bad faith breach of insurance contract claim unadjudicated.

In January 2004, Homeland made an offer of settlement to Robert, Blaze, and Mariah of $50,000 each. The Goodwins refused that offer.

In July 2004, the Goodwins tried their bad faith claim to a jury. The trial court precluded them from offering lay or expert testimony regarding insurance industry standards of conduct, and then granted Homeland's motion for a directed verdict on the ground that the Goodwins had not presented any evidence of insurance industry standards of conduct. The court's order granting Homeland's motion for directed verdict stated that judgment was "entered in this matter in favor of [Homeland] and against [the Goodwins] on all remaining causes of action."

Following the trial, Homeland filed a motion for an award of costs pursuant to §§ 13-16-122 and 13-17-202(1), C.R.S.2006. The Goodwins objected, contending that the motion was premature because discovery concerning the identities of class members was not yet complete. On December 9, 2004, the trial court granted Homeland's motion for costs under § 13-17-202(1), but left the amount to be determined later upon Homeland's filing of a bill of costs, and granted the Goodwins' motion to compel Homeland to provide certain discovery relating to the identities of additional class members. In ruling, the court observed that "no claims remain unadjudicated" and "the case is, in fact, over."

Homeland filed a revised motion for costs and bill of costs, requesting $13,190.11. The Goodwins filed a motion for over $560,000 in attorney fees and almost $30,000 in costs, pursuant to former § 10-4-708, Colo. Sess. Laws 1973, ch. 94, § 13-25-8 at 338 (formerly codified as amended at § 10-4-708), which permitted an award of attorney fees to an insured who succeeded monetarily on a claim that the insurer did not timely pay PIP benefits.

The Goodwins also sought additional discovery concerning class members, but on May 11, 2005, the court denied their motion to compel further discovery, finding that...

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