Peña v. Am. Family Mut. Ins. Co.

• Decision Date: 19 April 2018
• Docket Number: Court of Appeals No. 17CA0098
• Citation: 463 P.3d 879
• Parties: Marissa PEÑA, Plaintiff-Appellant, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant-Appellee.
• Court: Colorado Court of Appeals

463 P.3d 879

Marissa PEÑA, Plaintiff-Appellant,

v.AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant-Appellee.

Court of Appeals No. 17CA0098

Colorado Court of Appeals, Division II.

Announced April 19, 2018

Bendinelli Law Firm, P.C., Marc F. Bendinelli, Westminster, Colorado, for Plaintiff-Appellant

Michael L. Adams, Ted Wallace, Englewood, Colorado, for Defendant-Appellee

Opinion by JUDGE DAILEY

¶ 1 Plaintiff, Marissa Peña, appeals the district court's judgment dismissing her complaint against defendant, American Family Mutual Insurance Company. We affirm.

I. Background

¶ 2 While driving her car on June 24, 2013, Peña was involved in a three-car collision. When the accident occurred, she was insured by American Family Mutual Insurance Company (American Family). So too was one of the other drivers involved in the accident, Herman Garner.

¶ 3 In November 2013, Peña sent a letter to American Family asserting a claim under the uninsured motorist provisions of her policy. On September 9, 2015, the law firm representing Peña sent American Family another letter, specifically asserting that despite the conclusion of an investigating police officer

assigning 100% pf [sic] the fault to Mr. Garner for causing this collision[,] ... American Family is refusing to repair Ms. Pena's car under Mr. Garner's Property Damage coverage.

....

Further, ... Ms. Pena has Uninsured Motorist Property damage coverage stemming from her own policy. As you know, a denial from Mr. Garner's insurance company (here American Family) permits Ms. Pena to treat Mr. Garner as uninsured[,] entitling Ms. Pena [to] Uninsured Motorist Property Damage coverage. However, American Family has never issued a check for the damages to Ms. Pena's vehicle under that coverage either.¹

¶ 4 On September 17, 2015, American Family responded that it was denying Peña's claim because (1) having completed its own investigation in the matter, it had "determined that Herman Garner is not responsible for the damage to either vehicle involved in the claim" and (2) because (as pertinent here) Garner's vehicle "had active coverage at the time of the [accident]," Peña's "coverage of Uninsured Motorists Property Damage would not apply."

¶ 5 Peña instituted two actions, one against Garner,² the other against American Family. In the case now before us, Peña sued American Family under section 10-3-1115, C.R.S. 2017, for the unreasonable delay and denial of benefits due under the Uninsured Motorist Property Damage (UMPD) provisions of her policy. In support of this claim, she alleged that her UMPD coverage encompassed her situation here because it "expressly included vehicles that were insured by a ... policy at the time of the accident but the insurer denies coverage."

¶ 6 American Family moved to dismiss, arguing that Peña's complaint failed, as a matter of law, to state a claim upon which relief could be granted because Peña's UMPD coverage applied only if American Family (as Garner's insurer) denied coverage (rather than liability) for Garner in connection with the accident. Because, according to American Family, it had not denied Garner's coverage, but only his liability, for the accident, Peña's UMPD coverage would not apply.

¶ 7 The district court agreed with American Family's interpretation of Peña's policy and the distinction American Family made between a denial of "coverage" and a denial of "liability." But because American Family had only denied Garner's liability and the issue of his liability had not yet been determined, the court concluded that Peña's UMPD coverage "would not apply at this point" and her "lawsuit [was] premature." Consequently, the court dismissed Peña's case without prejudice.

II. Analysis

¶ 8 On appeal, Peña contends that the district court erred in dismissing her case. We disagree, however, based on an analysis somewhat different from that employed by the district court. See Rush Creek Sols., Inc. v. Ute Mountain Ute Tribe , 107 P.3d 402, 406 (Colo. App. 2004) (concluding that a trial court's ruling may be affirmed based on any grounds that are supported by the record); Chryar v. Wolf , 21 P.3d 428, 431 (Colo. App. 2000) (noting that a judgment that reaches the correct result will be upheld on appeal even if the stated reasons for a trial court's ruling were erroneous).

A. Do We Have Jurisdiction?

¶ 9 Before addressing the merits of Peña's contention, however, we need to address our jurisdiction to hear this appeal. "The dismissal of a complaint without prejudice is generally not appealable unless such dismissal prohibits further proceedings, such as when the applicable statute of limitations would prevent the reinstitution of suit." Golden Lodge No. 13, I.O.O.F. v. Easley , 916 P.2d 666, 667 (Colo. App. 1996) ; see Farmers Union Mut. Ins. Co. v. Bodell , 346 Mont. 414, 197 P.3d 913, 916 (2008) (An order dismissing a complaint without prejudice is not an appealable order absent the existence of special circumstances such as "the running of a statute of limitations, language in the order of dismissal indicating that the complainant will not be permitted to re-plead, or where the practical effect of the order of dismissal terminates the litigation in the complainant's chosen forum.").

¶ 10 It would appear, at first blush, that the district court's order of dismissal here is not appealable. The district court, remember, dismissed the complaint because, in its view, the complaint was prematurely brought. Almost by definition, a complaint that was prematurely brought could not have been belatedly brought for statute of limitations purposes.

¶ 11 As explained below, however, we reject the district court's determination that the case was prematurely brought. And because the applicable two-year limitations period measured from American Family's September 17, 2015, response, has expired, Peña would have no avenue for relief if we were to turn aside her appeal. See Wardcraft Homes, Inc. v. Emp'rs Mut. Cas. Co. , 70 F.Supp.3d 1198, 1213 (D. Colo. 2014) (applying the two year limitations period of section 13-80-102(1)(a), C.R.S. 2017, for actions brought under section 10-3-1115 ).

B. Was the Complaint Properly Dismissed?

¶ 12 Regarding the merits of Peña's contention, we review de novo the district court's ruling on a C.R.C.P. 12(b)(5) motion to dismiss for failure to state a claim upon which relief can be granted. Denver Post Corp. v. Ritter , 255 P.3d 1083, 1088 (Colo. 2011).

¶ 13 A complaint may be dismissed if the substantive law does not support the claims asserted, W. Innovations, Inc. v. Sonitrol Corp. , 187 P.3d 1155, 1158 (Colo. App. 2008), or if the plaintiff's factual allegations do not, as a matter of law, support a claim for relief, Ritter , 255 P.3d at 1088 ; cf. Warne v. Hall , 2016 CO 50, ¶ 1, 373 P.3d 588 ("[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’ " (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ) ).

¶ 14 In resolving a Rule 12(b)(5) motion to dismiss, a court may consider only the facts alleged in the complaint, documents attached as exhibits or referenced in the complaint, and matters of which the court may take judicial notice, such as public records.

Walker v. Van Laningham , 148 P.3d 391, 397 (Colo. App. 2006) (discussing judicial notice); Yadon v. Lowry , 126 P.3d 332, 336 (Colo. App. 2005) (discussing documents attached or referenced in the complaint).³

¶ 15 Although we view the factual allegations in the complaint as true and in the light most favorable to the plaintiff, Ritter , 255 P.3d at 1088, "we are not required to accept as true legal conclusions that are couched as factual allegations," Fry v. Lee , 2013 COA 100, ¶ 17, 408 P.3d 843, and, when documents are properly before the court, their legal effect is determined by their contents rather than by allegations in the complaint, see Stauffer v. Stegemann , 165 P.3d 713, 716 (Colo. App. 2006) (noting, also, that a court is not required to accept legal conclusions or factual allegations at variance with the express terms of those documents).

¶ 16 On appeal, Peña asserts that the district court erred in not considering whether American Family unreasonably delayed or denied her claim before dismissing her action. We are not persuaded.

¶ 17 Peña's complaint did not assert a claim against American Family in its role as Garner's insurer; it asserted, instead, a claim against American Family as her insurer. So the question, in the first instance, was a legal one, i.e. , what was American Family's duty to her under the UMPD provisions of her policy.

¶ 18 Under that policy, American Family agreed to

pay compensatory damages which [Peña is] legally entitled to recover from the owner or operator of an uninsured motor vehicle because of loss or damage caused by an accident arising out of physical contact with [her] insured car. The owner or operator's liability for these damages must arise out of the ownership, maintenance, or use of the uninsured motor vehicle.

Of critical importance, the policy defined an "uninsured motor vehicle" to mean, as pertinent here, "a land motor vehicle ... insured by a ... policy at the time of the accident but the insurer denies coverage ...." (Emphasis added.)

¶ 19 Peña argues that under the terms of her policy, she is entitled to pursue her claim because (1) the police report generated after the accident cited Garner as "100% liable" for the accident; and (2) despite the report, American Family denies that Garner is liable and is providing a defense for him in the other case. Peña's UMPD coverage was applicable, she asserts, because Garner's insurer (American Family) was denying liability.

¶ 20 But, as other courts recognize, a denial of claim by an insurer for lack of coverage is very different than a denial of a claim by an insurer on the ground that its insured is not liable:

The former involves a determination as to whether the particular

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