Werden v. Allstate Ins. Co.
| Decision Date | 08 October 2009 |
| Docket Number | Civil Action No. 08-cv-02173-LTB-KLM. |
| Parties | Ariella WERDEN, Plaintiff, v. ALLSTATE INSURANCE COMPANY, Defendant. |
| Court | U.S. District Court — District of Colorado |
Cameron Wat Tyler, Cameron W. Tyler & Associates, PC, Boulder, CO, for Plaintiff.
Andrew Alan Scott, Kristin A. Allan, Walberg Tucker & Holmes, P.C., Centennial, CO, for Defendant.
This automobile insurance dispute is before me on Defendant, Allstate Insurance Company's, Motion for Summary Judgment on the First and Third Claims in the Complaint [Docket #48], and Plaintiff, Ariella Werden's, Response [Docket # 58]. Oral argument would not materially assist the determination of this motion. After consideration of the motion, the papers, and the case file, and for the reasons stated below, I GRANT in part and DENY in part Defendant's Motion for Summary Judgment on the First and Third Claims in the Complaint [Docket # 48].
The following facts are alleged. On or about April 4, 2008, Plaintiff—while driving in Colorado in the course of her employment—was in an automobile accident involving another vehicle. At the time of the accident, Plaintiff was insured under an Allstate New York automobile policy ("the policy") that provided medical benefits without regard to fault, as well as uninsured motorist ("UM") benefits. The driver of the other vehicle was uninsured.
Plaintiff's workers' compensation insurer paid for accident-related treatment with authorized treatment providers. Unhappy with her care from the authorized providers, however, Plaintiff requested permission from her workers' compensation carrier to seek treatment with a non-authorized orthopedic surgeon, Dr. Fulkerson, and a non-authorized chiropractor, Dr. Swan. Plaintiff's request for an alternative provider was initially denied by her workers' compensation carrier and again denied upon request for reconsideration. Plaintiff then submitted her bills from Drs. Fulkerson and Swan to Defendant, but Defendant refused to pay her claim.
Plaintiff filed a complaint in Boulder County District Court—since removed to this Court on the basis of diversity jurisdiction—alleging four claims for relief: (1) breach of contract; (2) bad faith breach of insurance contract; (3) statutory claims under New York and Colorado law; and (4) a demand for coverage under Plaintiff's uninsured motorist coverage. [Docket #1-2]. On July 2, 2009, I dismissed Plaintiff's bad faith breach of insurance contract claim on the basis that New York law—which governs any tort controversies raised in this case—does not recognize a claim for bad faith breach of insurance contract. [Docket # 41].
Defendant now moves for summary judgment on Plaintiff's breach of contract and statutory claims. In support of its motion, Defendant raises three arguments. First, Defendant argues that Plaintiff's breach of contract claim is precluded by the express terms of Plaintiff's policy which reduce payable benefits by the amount "recovered or recoverable" to a policyholder under workers' compensation laws. Second, Defendant argues Plaintiff's statutory claims—to the extent they allege violations of Colorado law—are precluded by my July 2, 2009, Order concluding New York law governs this dispute. Finally, Defendant argues Plaintiff's Colorado statutory claims—if they are allowed to proceed—and New York statutory claims are precluded by the terms of Plaintiff's policy related to the workers' compensation offset.
The purpose of a summary judgment motion is to assess whether trial is necessary. White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir.1995). If a reasonable juror could not return a verdict for the non-moving party, summary judgment is proper and there is no need for a trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is not proper if—viewing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in that party's favor—a reasonable jury could return a verdict for the nonmoving party. Mares v. ConAgra Poultry Co., Inc., 971 F.2d 492, 494 (10th Cir.1992).
In a motion for summary judgment, the moving party "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex, supra, 477 U.S. at 323, 106 S.Ct. 2548 (quoting FED. R. CIV. P. 56(c)). If the moving party does not bear the burden of persuasion at trial, it may satisfy this responsibility by identifying a lack of evidence for the non-movant on an essential element of the non-movant's claim. Adamson v. Multi Community Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008).
If this burden is met, then the nonmoving party has the burden of showing there are genuine issues of material fact to be determined. See id. at 322, 106 S.Ct. 2548. It is not enough that the evidence be merely colorable; the non-moving party must come forward with specific facts showing a genuine issue for trial. See id.; Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A fact is material if it might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). I shall grant summary judgment, therefore, only if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Lucas v. Mountain States Tel. & Tel., 909 F.2d 419, 420 (10th Cir. 1990); FED.R.CIV.P. 56(c).
In a motion for summary judgment, I view the evidence "through the prism of the substantive evidentiary burden." Liberty Lobby, supra, 477 U.S. at 254, 106 S.Ct. 2505. The inquiry is based on "the quality and quantity of evidence required by the governing law" and "the criteria governing what evidence would enable the jury to find for either the plaintiff or the defendant." Id. Accordingly, in this insurance case, Plaintiff must show material facts in dispute by a preponderance of the evidence in order to defeat Defendant's motion for summary judgment.
Defendant argues Plaintiff's breach of contract claim fails as a matter of law because Plaintiff seeks reimbursement for medical expenses that are not payable under Plaintiff's policy. Specifically, Defendant notes Plaintiff's policy excludes "amounts recovered or recoverable on account of personal injury to an eligible insured person under State or Federal laws providing social security disability or workers' compensation benefits" from the scope of reimbursable expenses. It is not disputed that Plaintiff was covered under a Colorado workers' compensation plan at the time of the accident.
Plaintiff's response is two-fold. First, Plaintiff argues it is seeking reimbursement for lost wages that are not "recovered or recoverable" under her workers' compensation plan as a matter of law. Second, Plaintiff argues she is seeking reimbursement for medical expenses that were denied by her workers' compensation plan and, accordingly, are not "recovered or recoverable" as a matter of fact.
Plaintiff's policy states that Allstate "will pay first-party benefits to reimburse for basic economic loss"—which consists of "medical expense, work loss, or other expense"—reduced by any amounts "recovered or recoverable" under a workers' compensation plan. Policy Endorsement, p. 1 [Docket # 48-5]. Under Colorado workers' compensation law, "[i]n case of temporary total disability, the employee shall receive sixty-six and two-thirds percent of said employee's average weekly wages so long as disability is total, not to exceed a maximum of ninety-one percent of the state average weekly wage per week." COLO.REV.STAT. § 8-42-105. Accordingly, to the extent Plaintiff suffered wage loss beyond that compensable under the statute-either because Plaintiff's disability was not "total," or because the amount compensable under the statute was otherwise not equivalent to the amount of loss—Plaintiff's wage loss was not "recovered or recoverable" under her workers' compensation plan.
Plaintiff, however, does not allege that she is entitled to lost wages in her breach of contract claim, but rather seeks reimbursement for "medical payments." Similarly, the Final Pre-Trial Order [Docket # 55]—which supercedes the complaint, see Wilson v. Muckala, 303 F.3d 1207, 1215 (10th Cir.2002)—states Plaintiff is asserting a breach of contract claim for non-payment of "medical benefits" and makes no mention of lost wages. While the complaint includes a paragraph regarding lost wages in the general allegations, the paragraph states: "Plaintiff's ongoing loss of income due to her reduced work capacity should be paid under her UM coverage with Defendant." As Plaintiff's complaint makes clear, she has not yet filed a claim for UM coverage. Any allegation that Defendant is in breach of the UM contract is therefore unsupportable. Accordingly—as Plaintiff has not alleged lost wages in connection with a breached contract—the factual question whether Plaintiff is owed lost wages by Defendant is not material to this claim. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Defendant argues that Plaintiff's non-approved medical expenses were "recovered or recoverable" under Colorado workers' compensation laws and, accordingly, are not payable under her policy. Plaintiff responds that—although the cost of the medical treatment...
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