Soto v. Progressive Mountain Ins. Co.

• Citation: 181 P.3d 297
• Decision Date: 26 July 2007
• Docket Number: No. 05CA1032.,05CA1032.
• Parties: Lorenzo SOTO and Veronica Vonderhaar, n/k/a Veronica Taylor, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants and Cross-Appellees, v. PROGRESSIVE MOUNTAIN INSURANCE COMPANY, a Colorado corporation, Defendant-Appellee and Cross-Appellant.
• Court: Court of Appeals of Colorado

181 P.3d 297 Lorenzo SOTO and Veronica Vonderhaar, n/k/a Veronica Taylor, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants and Cross-Appellees,
v.
PROGRESSIVE MOUNTAIN INSURANCE COMPANY, a Colorado corporation, Defendant-Appellee and Cross-Appellant. No. 05CA1032. Colorado Court of Appeals, Div. IV. July 26, 2007. Certiorari Denied April 21, 2008.

[181 P.3d 299]

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

Baker & Hostetler LLP, John B. Moorhead, Stacy D. Mueller, Paul G. Karlsgodt, Denver, Colorado, for Defendant-Appellee and Cross-Appellant.

Opinion by Judge HAWTHORNE.

In this case under the former Colorado Auto Accident Reparations Act (No-Fault Act), plaintiffs, Lorenzo Soto and Veronica Vonderhaar, now known as Veronica Taylor (collectively insureds), appeal the partial summary judgment in favor of defendant, Progressive Mountain Insurance Company. Progressive cross-appeals the trial court's grant of class certification. We dismiss Progressive's cross-appeal, reverse the judgment, and remand the case for further proceedings.

I. Background

In 1999, each insured was involved in an automobile accident while covered under insurance policies issued by Progressive. The insureds filed claims for compensation for personal injury protection (PIP) benefits available under their respective policies.

In 2002, the insureds filed suit against Progressive under the No-Fault Act, alleging that Progressive failed to offer the enhanced PIP benefits as required by former § 10-4-710(2)(a), Colo. Sess. Laws 1992, ch. 219 at 1779 (entire act repealed effective July 1, 2003, Colo. Sess. Laws 2002, ch. 189, § 10-4-726 at 649), in effect at the time the policies were issued. The insureds further alleged that Progressive failed to provide written explanations of all available coverages as required by former § 10-4-706, Colo. Sess. Laws 1973, ch. 94, § 13-25-6 at 336. The insureds also filed a motion for class certification, which the trial court granted after a narrowing of the class definition.

Progressive then moved for summary judgment on all the insureds' claims, stating that it had offered the enhanced benefits. The trial court granted partial summary judgment as to the insureds' claims arising under former § 10-4-710, but allowed the insureds' claims arising under former § 10-4-706 to go forward. Upon the parties' joint motion, the trial court entered an order pursuant to C.R.C.P. 54(b), allowing these appeals to proceed.

In May 2006, the motions division of this court issued an order to Progressive to show cause why its cross-appeal should not be dismissed for failure timely to request review, pursuant to § 13-20-901, C.R.S.2006, of the trial court's order granting class certification. The ruling on the order was then deferred to this division. Because of the procedural posture of this case, we first address the show cause order and the timeliness of Progressive's cross-appeal.

II. Show Cause Order and cross-appeal

The current rule regarding appeals from rulings on class certification became effective July 1, 2003, and requires that such an appeal be filed within ten days after entry of the trial court's order. Section 13-20-901(1), C.R.S.2006; C.R.C.P. 23(f). Because this case was filed in 2002, C.R.C.P. 54(b) applies.

C.R.C.P. 54(b) creates an exception to the general rule that only final judgments are appealable. In a case involving more than one claim for relief, the court "may direct the entry of a final judgment as to one or more but fewer than all of the claims ... only

181 P.3d 300

upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." C.R.C.P. 54(b).

The court must employ a three-step process in deciding whether to issue a C.R.C.P. 54(b) certification. Harding Glass Co. v. Jones, 640 P.2d 1123, 1125 (Colo.1982).

First, it must determine that the decision to be certified is a ruling upon an entire "claim for relief." Next, it must conclude that the decision is final "in the sense of an ultimate disposition of an individual claim." Finally, the trial court must determine whether there is just reason for delay in entry of a final judgment on the claim.

Harding Glass, supra, 640 P.2d at 1125 (citations omitted; quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 436, 76 S.Ct. 895, 900, 100 L.Ed. 1297 (1956)). We review the first two steps de novo and the third step for an abuse of discretion. See Pham v. State Farm Mut. Auto. Ins. Co., 70 P.3d 567, 571 (Colo.App.2003).

We conclude that the trial court's order granting class action certification is not an ultimate disposition of an individual claim. See Harding Glass, supra, 640 P.2d at 1125. While an order denying class certification may be appealed, see Levine v. Empire Sav. & Loan Ass'n, 192 Colo. 188, 189-90, 557 P.2d 386, 387 (1976), we can find no Colorado cases, and Progressive cites to none, that hold an order granting class certification is subject to interlocutory appeal based on a C.R.C.P. 54(b) certification. A grant of class certification does not dispose of any claims. As in the case of a denial of summary judgment, it merely allows the claims to proceed. Cf. Feiger, Collison & Killmer v. Jones, 926 P.2d 1244, 1247 (Colo.1996) (denial of motion for summary judgment not appealable because it "is strictly a pretrial order that decides only one thing — that the case should go to trial" (quoting Switzerland Cheese Ass'n v. E. Horne's Market, Inc., 385 U.S. 23, 25, 87 S.Ct. 193, 195, 17 L.Ed.2d 23 (1966))).

Nor are we persuaded by Progressive's argument that the trial court's C.R.C.P. 54(b) certification must be considered as a whole, and that failure of certification as to one issue requires reversal of the certification in its entirety. We conclude that certification of the order granting partial summary judgment was proper, because it disposed of the insureds' claims for declaratory judgment and breach of contract, and the parties stipulated that the remaining C.R.C.P. 54(b) requirements were met for both issues. However, the parties' stipulation does not confer on us jurisdiction to review an otherwise unreviewable order. See Harding Glass, supra, 640 P.2d at 1126 (appellate court's jurisdiction to entertain appeal of a certified decision dependent upon correctness of the certification).

We conclude the trial court's C.R.C.P. 54(b) certification of its order granting...