Solano v. American Bankers Ins. Co. of Florida
| Decision Date | 27 February 2009 |
| Docket Number | Civil Action No. 05-cv-01510-CMA-MJW. |
| Citation | 601 F.Supp.2d 1249 |
| Parties | Denise SOLANO, Plaintiff, v. AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA, Defendant. |
| Court | U.S. District Court — District of Colorado |
Frances Renae Johnson, The Carey Law Firm, Colorado Springs, CO, for Plaintiff.
Eldon E. Silverman, Denver, CO, for Chapter 7 Trustee.
Billy-George Hertzke, Senter Goldfarb & Rice, LLC, Denver, CO, Walter D. Willson, Marble & Hurst, PLLC, Jackson, MS, for Defendant.
This matter is before the Court on Defendant American Bankers Insurance Company of Florida's Motion for Summary Judgment (Doc. # 149) and the Motion for Partial Summary Judgment (Doc. # 150) filed by Plaintiff Denise Solano and Plaintiff-In-Intervention Albert Hoffman (in discussing their Motion, Ms. Solano and Mr. Hoffman will be referred to collectively as "Plaintiff"). For the following reasons, Defendant's Motion is GRANTED and Plaintiff's Motion for Partial Summary Judgment is DENIED.
This is an insurance dispute. On February 18, 2003, Plaintiff's husband, Dion Solano, purchased automobile insurance from Defendant. Defendant issued Policy No. CO-0086648 ("Policy"), which is the subject of this lawsuit. Less than a month later, on March 2, 2003, Plaintiff suffered personal injuries in an automobile accident while riding as a passenger in her husband's Mercury Sable. Plaintiff received personal injury protection ("PIP") benefits under the Policy until they expired on May 6, 2004.
At the time Mr. Solano purchased the Policy, the Colorado Auto Accident Reparations Act ("CAARA") required drivers to retain a minimum amount of PIP coverage in their auto insurance policies. CAARA also required insurers to "offer" enhanced personal injury protection ("EPIP") coverage to their insureds. Courts construing the EPIP provisions of CAARA have ruled that an insurer's failure to make the appropriate offer of EPIP coverage requires that the policy be reformed to incorporate the statutory EPIP coverage. Under this line of precedent, Plaintiff seeks a declaratory judgment reforming the Policy so that she may recover EPIP benefits. Plaintiff also seeks additional damages for breach and bad faith breach of the "reformed" insurance contract.
The procedural history of this case is rather long, but unnecessary here for disposition of the instant motions. All that is relevant at this point is that both parties moved for summary judgment. Defendant seeks dismissal of all of Plaintiff's claims and Plaintiff seeks summary judgment in her favor on the declaratory judgment claim only.
When dealing with PIP/EPIP lawsuits, the facts surrounding the purchase of the policy and the purported offer of EPIP coverage are critical. This case is no different. Mr. Solano purchased the Policy on February 18, 2003, from a National Insurance Center branch store located in Lakewood, Colorado. National Insurance Centers were Defendant's captive sales outlets and both companies were under the common ownership of Thaxton RBE, a holding company. (Doc. # 161, Defs. Reply at 4.) Mr. Solano purchased the state minimum PIP coverage. (Doc. # 152, Pls. Response at 4; Defs. Reply at 10.)
When he purchased the Policy, Mr. Solano received Defendant's PIP Selection Form. (Doc. # 149, Defs. Motion at Ex. 1.) The PIP Selection Form contained details on multiple options for PIP coverage and described the varying levels of coverage. (Id.) The PIP Option Form, which immediately followed the PIP Selection Form in the documents provided to Mr. Solano, listed 36 different PIP coverage options and included further explanation of the PIP coverage levels described in the PIP Selection Form. (Id.) The PIP Option Form was laid out in a table format with pricing information that corresponded to the different level of PIP coverage. (Id.) Mr. Solano admits that he saw these forms and the PIP coverage options in the Option Form table. (Pls. Response at 4.) Indeed, although Mr. Solano stated that he did not read any of the insurance documents provided to him (id.), he selected "Basic PPO with Option D-Limited Benefits," on the Option Form and signed the Form. (Defs. Motion at Ex. A-1.) He also initialed the Policy Declaration in a spot indicating that he had received "sufficient explanatory information regarding the PIP/PPO Option...." (Id.) Despite seeing and signing the Policy forms, Mr. Solano did not ask any questions of the customer service representative, Gloria Nieto, when he purchased the Policy. (Pls. Response at 5.)
Against this relatively clear written record, Plaintiff attempts to muddy the waters surrounding the purchase of the Policy and the offer of EPIP coverage by introducing testimony from National Insurance Center sales representatives Lindsey Fisher and Desiree Albertson. Ms. Fisher stated that her job training instructed her not to offer EPIP coverage, because it would cost the company too much money. (Id. at 6.) Ms. Fisher also stated that store managers were instructed not to offer EPIP coverage and that she witnessed agents and managers adhering to this policy on multiple occasions. (Id.) Ms. Albertson testified that customer service representatives at each and every National Insurance Center followed the same script when selling an auto insurance policy. (Defs. Reply at 6.)
However, neither Ms. Fisher nor Ms. Albertson worked with or trained agents at the Lakewood store where Mr. Solano purchased the Policy and neither agent appears to have had any interaction with Plaintiff or her husband. Furthermore, the Lakewood store manager, Yazmin Gutierrez, testified that it was store policy to offer EPIP coverage to every customer. (Id.) Ms. Gutierrez stated that enhanced policies actually made the company more money. (Id.) Additionally, Ms. Fisher stated that, despite receiving negative instructions regarding EPIP coverage offers, each agent received a copy of the auto policy declaration, which contained the above-described written PIP Selection and Option Forms for use with customers. (Id.) Neither party has presented testimony from Ms. Nieto, the customer service representative who actually sold the Policy to Mr. Solano.
Courts should grant summary judgment if the record indicates that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Deepwater Investments, Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110-11 (10th Cir.1991); Devery Implement Co. v. J.I. Case Co., 944 F.2d 724, 726 (10th Cir.1991). The moving party bears the initial burden of demonstrating the lack of an issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the movant meets this burden, the nonmovant must respond with evidence sufficient to create a genuine issue of material fact for trial. Id. at 324, 106 S.Ct. 2548; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To overcome a motion for summary judgment, the non-moving party must present enough evidence to allow a reasonable jury to find in its favor. Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.1993). In analyzing the evidence on a motion for summary judgment, a court should view the factual record and draw reasonable inferences in favor of the non-moving party. Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 851 (10th Cir.1996).
The Court now turns to the question of whether either party has satisfied its burden under the aforementioned facts and standard of review.
This is a diversity case, so Colorado law will apply. The Colorado legislature enacted CAARA to ensure that Colorado consumers received appropriate treatment from auto insurers in the event of an auto accident. See Reid v. Geico Gen. Ins. Co., 499 F.3d 1163, 1165 (10th Cir.2007).1 To help accomplish this goal, C.R.S. § 10-4-710 states in relevant part:
Every insurer shall offer for inclusion in a complying policy, in addition to the coverages described in section 10-4-706 [basic PIP coverage], at the option of the named insured:
(I) Compensation of all expenses of the type described in section 10-4-706(1)(b) without dollar or time limitation; or
(II) Compensation of all expenses of the type described in section 10-4-706(1)(b) without dollar or time limitations and payment of benefits equivalent to eighty-five percent of loss of gross income per week from work the injured person would have performed had such injured person not been injured during the period commencing on the day after the date of the accident without dollar or time limitations.
C.R.S. § 10-4-710(2)(a) (emphasis added). The coverage described in this section has become known as advanced, enhanced or additional PIP coverage. When put into the context of this case, section 10-4-710(2)(a) required insurers to offer EPIP coverage to their insureds in addition to the legal minimum PIP coverage described by C.R.S. § 10-4-706. See Fazio v. State Farm Mut. Auto. Ins. Co., 55 P.3d 229, 231 (Colo.Ct.App.2002) ().
In Brennan v. Farmers Alliance Mut. Ins. Co., the Colorado Court of Appeals held that when an insurer fails to "offer" EPIP coverage in accordance with C.R.S. § 10-4-710, the policy in question should be reformed to incorporate the statutorily-required EPIP coverage. See 961 P.2d 550, 554 (Colo.Ct.App.1998) (...
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