Sherman v. Liberty Mut. Ins. Co.
| Decision Date | 05 January 2023 |
| Docket Number | Civil Action 21-cv-00938-PAB-KLM |
| Parties | CANDACE ELAINE SHERMAN, Plaintiff, v. LIBERTY MUTUAL INSURANCE COMPANY, and LIBERTY MUTUAL FIRE INSURANCE COMPANY, Defendants. |
| Court | U.S. District Court — District of Colorado |
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Defendants' Motion for Summary Judgment and Memorandum Brief in Support Thereof [#43][1] (the “Motion”). Plaintiff, who has proceeded as a pro se litigant since the withdrawal of her counsel,[2] filed a Response [#61] in opposition to the Motion [#43], and Defendants filed a Reply [#62]. The Motion [#43] has been referred to the undersigned for a recommendation pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1. See [#45].
The Court has reviewed the briefs, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motion [#43] be GRANTED in part and DENIED in part.
The factual record and reasonable inferences therefrom are viewed in a light most favorable to Plaintiff as the party opposing summary judgment. Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994). However, the parties disagree on nearly every aspect of this case, including which Defendant issued the underlying insurance policy.[3] The only facts submitted by Defendants to which Plaintiff explicitly agrees are that she is a resident of San Diego, California, that her 2002 Kia Sedona was “garaged,” licensed, and registered in California, that she possesses a California driver's license, and that in March 2018 she was driving east on I-70 through Colorado in this vehicle when she was in an accident. Motion [#43] at 2 ¶¶ 3-7; Response [#61] at 4 ¶¶ 3-7.
Ultimately, this lawsuit was filed on March 10, 2021, asserting a single breach of contract uninsured motorist claim under Plaintiff's insurance policy. See Compl. [#4]. In the present Motion [#43], Defendants seek entry of summary judgment in their favor on this claim. Generally, Defendants' theory of the case is that Plaintiff lost control of her vehicle as it slid on the icy mountain road on which she was driving too quickly, causing her to go off the side of the highway. In contrast, Plaintiff's theory of the case is that her vehicle was hit or tapped by another vehicle, causing her to go off the side of the highway, and that the other vehicle did not stop.
The purpose of a motion for summary judgment pursuant to Fed.R.Civ.P. 56 is to assess whether trial is necessary. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Under Fed.R.Civ.P. 56(c), summary judgment shall be granted if “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” An issue is genuine if the evidence is such that a reasonable jury could resolve the issue in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 277 U.S. 242, 248 (1986). A fact is material if it might affect the outcome of the case under the governing substantive law. Id.
The burden is on the movant to show the absence of a genuine issue of material fact. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (citing Celotex, 477 U.S. at 323). When the movant does not bear the ultimate burden of persuasion at trial, the “movant may make its prima facie demonstration [of the absence of a genuine issue of material fact] simply by pointing out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.” Id. at 671. If the movant carries the initial burden of making a prima facie showing of a lack of evidence, the burden shifts to the nonmovant to put forth sufficient evidence for each essential element of his claim such that a reasonable jury could find in his favor. See Anderson, 277 U.S. at 248; Simms v. Okla. ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999). The nonmovant must go beyond the allegations and denials of his pleadings and provide admissible evidence, which the Court views in the light most favorable to him. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir. 1995) (citing Celotex, 477 U.S. at 324). Conclusory statements based merely on conjecture, speculation, or subjective belief are not competent summary judgment evidence. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). The nonmoving party's evidence must be more than “mere reargument of [his] case or a denial of an opponent's allegation” or it will be disregarded. See 10B Charles Alan Wright et al., Federal Practice and Procedure § 2738 (4th ed. 2017).
When ruling on a motion for summary judgment, a court may consider only admissible evidence. See Johnson v. Weld County, Colo., 594 F.3d 1202, 1209-10 (10th Cir. 2010). The factual record and reasonable inferences therefrom are viewed in the light most favorable to the party opposing summary judgment. Concrete Works, Inc., v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994). However, “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007); Thomson, 584 F.3d at 1312.
Only documents that meet the evidentiary requirements of Fed.R.Civ.P. 56 may be considered for purposes of summary judgment. Rule 56(c) provides that:
II. Analysis
The parties do not dispute that California law governs the substantive issues in this lawsuit, see Motion [#43] at 7-8; Response [#61] at 9-11, and the Court finds no reason to question this agreement. See, e.g., State Farm Auto. Ins. Co. v. Mendiola, 865 P.2d 909 (Colo.App. 1993).
The parties dispute which Defendant issued the insurance policy underlying Plaintiff's claim. Defendants state that the Policy at issue in this action was issued by Defendant Liberty Mutual Fire Insurance Company. Motion [#43] at 13. In support, they cite to the Policy, which provides: “LibertyGuard Auto Policy Declarations provided and underwritten by Liberty Mutual Fire Insurance Company (a stock insurance company), Boston, MA.” Policy [#43-1] at 5. Defendants assert that this document shows that Defendant Liberty Mutual Insurance Company did not issue the Policy or insure Plaintiff. Motion [#43] at 13. They state that “Defendant Liberty Mutual Insurance Company is not, therefore, a proper party to this suit and Plaintiff's breach of contract claim against it is neither factually nor legally cognizable.” Id.
In response, Plaintiff asserts that “Defendants have presented a fraudulent claim against themselves by using an insurance company name [LMFIC] policy that does NOT exit [sic].” Response [#61] at 4. In support, she cites to the second page of the Policy, which mentions neither Defendant by name but does include a logo in the corner for “Liberty Mutual Insurance.” She further states: “There can not be two policies with the same policy number with two different insurance names.” Id. at 9. In reply, Defendants state that “[t]he existence of two insurance carriers in this case is due to the fact that Plaintiff elected to sue two insurers, one of whom did not issue any policy to Plaintiff.” Reply [#62] at 9.
The Policy provided by Plaintiff, see [#61-5] is identical to the one provided by Defendants, see [#43-1]. The basis for Plaintiff's belief that there are two policies, one underwritten by each Defendant but with the same policy number, is unclear. The Policy explicitly states which insurance company issued the Policy and underwrote it, i.e., Defendant Liberty Mutual Fire Insurance Company. See [#43-1] at 5; [#61-5] at 6. Based on the record before it, the Court cannot find that there is a genuine issue of material fact as to which Defendant issued the Policy and therefore is a proper party with respect to the sole breach of contract claim in this action.
Accordingly, the Court recommends that the Motion [#43] be GRANTED in part to the extent that summary judgment on Plaintiff's breach of contract claim against Defendant Liberty Mutual Insurance Company, the sole claim asserted against this Defendant, enter in favor of Defendant Liberty Mutual Insurance Company.
The parties disagree on whether California law requires physical contact between a plaintiff's vehicle and an uninsured vehicle before uninsured motorist insurance benefits may be awarded. Motion [#43] at 8; Response [#61] at 11-12; Reply [#62] at 2-4.
Pursuant to Cal. Ins. Code § 11580.2(b), an “...
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