Allen v. USAA , 907 F.3d 1230 ( 2018 )

FILED
United States Court of Appeals
Tenth Circuit
October 29, 2018
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
JEFFREY ALLEN,
Plaintiff - Appellant,
v. No. 17-1282
UNITED SERVICES AUTOMOBILE
ASSOCIATION,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:16-CV-01056-RM-NYW)
John M. DeStefano, of Hagens Berman Sobol Shapiro LLP, Phoenix, Arizona
(Robert B. Carey, of Hagens Berman Sobol Shapiro LLP, Colorado Springs,
Colorado, on the briefs), for Plaintiff-Appellant.
Jeremy A. Moseley (John M. Vaught and Julian R. Ellis, Jr. with him on the
brief), of Wheeler Trigg O’Donnell LLP, Denver, Colorado, for Defendant-
Appellee.
Before BRISCOE, SEYMOUR, and HOLMES, Circuit Judges.
HOLMES, Circuit Judge.
Plaintiff-Appellant Jeffrey Allen was injured in a car accident in May 2013.
His automobile insurance policy includes coverage for medical expenses arising
from car accidents, but this coverage contains a one-year limitation period such
that he cannot obtain reimbursement for medical expenses that accrue a year or
more after an accident. Mr. Allen, who seeks reimbursement for medical
expenses accruing more than a year after his accident, argues that this limitation
period is invalid for two separate reasons. First, he claims that, because a 2012
disclosure form that his insurer sent him stated that his policy covers reasonable
medical expenses arising from a car accident, Colorado’s reasonable-expectations
doctrine renders the one-year limitations period unenforceable. Second, Mr.
Allen argues that Colorado’s MedPay statute, which requires car insurance
companies to offer at least $5,000 of coverage for medical expenses, prohibits
placing a one-year time limit on this coverage. The district court granted
summary judgment in favor of Mr. Allen’s insurer, Defendant-Appellee United
Services Automobile Association (“USAA”). We now reject both of Mr. Allen’s
arguments and, exercising jurisdiction under 28 U.S.C. § 1291, affirm the district
court’s order.
I
Mr. Allen was insured under a car insurance policy purchased by his wife,
Ellen Allen, from USAA. As relevant here, the policy’s coverage period ran from
December 5, 2012 to June 5, 2013, though Ms. Allen obtained the policy years
2
before that. The policy included $100,000 of coverage for “medical payments.”
Aplt.’s App., Vol. III, at 711 (Auto Policy Renewal Declarations, filed Oct. 26,
2017) (capitalization omitted). The policy stated that USAA “will pay only the
medical payment fee for medically necessary and appropriate medical services”
and that “[t]hese fees and expenses must . . . [r]esult from [a bodily injury]
sustained by a covered person in an auto accident; and . . . [b]e incurred for
services rendered within one year from the date of the auto accident.” Id., Vol. I,
at 203 (Ex. A-2 to Def.’s Statement of Undisputed Facts, filed Oct. 26, 2017).
While the policy initially contained a three-year limitation period for medical
payments, USAA sent Ms. Allen a disclosure in 2006 informing her of “Important
Changes to Your Auto Policy,” which included that the “time limit for Medical
Payments Coverage is reduced from three years . . . to one year from the date of
[an] accident.” Id. at 177 (Ex. A-1 to Def.’s Statement of Undisputed Facts, filed
Oct. 26, 2017). It is undisputed that, notwithstanding this change to her policy,
Ms. Allen renewed it in December 2006 and continued to renew it thereafter until
the car accident that forms the basis of this case occurred.
In 2012, USAA sent the Allens a “Summary Disclosure Form” that
purported to be “a basic guide to the major coverages and exclusions in your
policy.” Id. at 222 (capitalization omitted). The disclosure form stated that it
was “not a policy of any kind,” and instructed the Allens to “please read your
policy for complete details” because “this summary disclosure form shall not be
3
construed to replace any provision of the policy itself.” Id. (capitalization
omitted). The disclosure form discussed the Allens’ “[m]edical payments
coverage” under their policy. Id. at 224. It stated that this “[m]edical payments
coverage pays for you and your passengers[’] reasonable health care expenses
incurred for bodily injury caused by an automobile accident.” Id. The portion of
the disclosure form discussing medical-payments coverage further instructed the
Allens to “[p]lease read your policy for other conditions and exclusions.” Id.
In May 2013, within the policy’s coverage period, Mr. Allen was involved
in a car accident. Mr. Allen began suffering lower back pain shortly afterward.
The policy provided coverage for up to $100,000 worth of medical payments
within the one-year limitation period. According to a clinical assessment carried
out about a year after the accident, Mr. Allen’s pain “range[d] anywhere from
mild to severe on a daily basis.” Id., Vol. III, at 625 (Ex. A-2 to Pl.’s Resp. to
Def.’s Statement of Facts, filed Oct. 26, 2017). By June 2014, when the one-year
limitation period on medical-payments coverage under Mr. Allen’s policy had
ended, USAA had paid out about $18,000 of the $100,000 coverage amount. Mr.
Allen continued to receive medical treatment for problems stemming from the
accident, but USAA refused to make further payments because the limitation
period had been reached.
In May 2016, Mr. Allen brought a class action suit against USAA, on
behalf of “all insureds of [USAA],” in federal district court in Colorado. Id., Vol.
4
I, at 10 (Class Action Compl., filed Oct. 26, 2017). He alleged diversity
jurisdiction under the Class Action Fairness Act, 28 U.S.C. § 1332(d). Mr. Allen
sought damages for, inter alia, breach of contract, the tort of bad faith, and
deceptive trade practices, all under Colorado law. He also asked for declaratory
relief that would have the effect of vitiating the time limits for medical-payments
coverage in class members’ policies.
USAA filed an Answer to Mr. Allen’s complaint in September 2016. In
December 2016, USAA moved for summary judgment, and the district court
granted this motion in July 2017. The district court entered final judgment
against Mr. Allen on July 10, 2017, and Mr. Allen timely appealed.
II
“We review a district court’s summary-judgment order de novo,” and
summary judgment “is appropriate when ‘the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.’” Dullmaier v. Xanterra Parks & Resorts, 883 F.3d 1278, 1283
(10th Cir. 2018) (quoting F ED . R. C IV . P. 56(a)). As to materiality, “[o]nly
disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). And disputes are genuine “if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
We “view the evidence and draw reasonable inferences therefrom in the light
5
most favorable to the nonmoving party” at the summary-judgment stage.
Dullmaier, 883 F.3d at 1283 (quoting Simms v. Okla. ex rel. Dep’t of Mental
Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999),
abrogated in part on other grounds as recognized in Eisenhour v. Weber Cty.,
744 F.3d 1220, 1227 (10th Cir. 2014)).
III
A
Mr. Allen first argues that the one-year time limit on medical-payments
coverage is unenforceable because it violates Colorado’s reasonable-expectations
doctrine. More specifically, Mr. Allen points to the disclosure form USAA sent
to his wife and him in 2012 that outlined the basic parameters of their coverage;
he claims that, due to language in this disclosure form, he could have reasonably
expected that there would be no time limit attached to medical-payments coverage
under the policy. 1
1
At the threshold, USAA contends that any statutory obligation to
disclose its medical-payments coverage “was owed to Ms. Allen as the applicant
and policyholder,” and “not to” Mr. Allen, as merely a “covered party.” Aplee.’s
Resp. Br. at 24–25. Not surprisingly, Mr. Allen disputes this assertion and
contends that his “claims do not depend on his status as a purchaser” of the
USAA policy. Aplt.’s Reply Br. at 10; see id. at 11 (“The time limit is
unenforceable as to any insured because it violates that expectation.”). We need
not resolve this dispute. Even assuming that, as a matter of law, USAA owed the
same disclosure obligation to Mr. Allen that it owed to his wife, Mr. Allen has not
demonstrated (for reasons explicated infra) that USAA failed to satisfy this
obligation. For similar reasons, we do not address USAA’s “no-private-right-of-
(continued...)
6
Colorado’s “doctrine of reasonable expectations” “renders exclusionary
language [in an insurance policy] unenforceable . . . where, because of
circumstances attributable to an insurer, an ordinary, objectively reasonable
insured would be deceived into believing that he or she is entitled to coverage,
while the insurer would maintain he or she is not.” Bailey v. Lincoln Gen. Ins.
Co., 255 P.3d 1039, 1043 (Colo. 2011). 2 “In order for reasonable expectations to
prevail over exclusionary policy language, an ‘insured must demonstrate through
extrinsic evidence that its expectation[s] of coverage [are] based on specific facts
which make these expectations reasonable.’” Id. at 1054 (alterations in original)
(quoting O’Neill Investigations, Inc. v. Ill. Emp. Ins. of Wausau, 636 P.2d 1170,
1177 (Alaska 1981)). “These specific facts must show that, through procedural or
substantive deception attributable to the insurer, an objectively reasonable insured
would have believed he or she possessed coverage later denied by an insurer.” Id.
1
(...continued)
action” argument, which generally contends that Mr. Allen’s “claims challenging
the content of USAA’s 2012 disclosure form are an end run around Colo. Rev.
Stat. § 10-4-636’s exclusive remedial scheme.” Aplee.’s Resp. Br. at 20.
2
There is also a second circumstance, beyond the deception of an
insured by an insurer, where the reasonable-expectations doctrine comes into
play: “where an ordinary, objectively reasonable person would, based on the
language of the policy, fail to understand that he or she is not entitled to the
coverage at issue,” Bailey, 255 P.3d at 1043. Mr. Allen does not argue that this
theory of reasonable expectations applies in this case.
7
Mr. Allen thinks that the 2012 disclosure form was “deceptive” because it
promised coverage for “reasonable health care expenses” arising from a car
accident, whereas the policy provided time limits on coverage without regard to
whether expenses accruing after the expiration of such limits were also
“reasonable” or “accident related.” See Aplt.’s Opening Br. at 9. However, after
studying the disclosure form, we conclude that Mr. Allen is incorrect—viz., a
reasonable jury could not conclude that, because of the disclosure form, “an
ordinary, objectively reasonable insured would be deceived into believing that he
or she is entitled to coverage” for medical expenses on a time-unlimited basis.
Bailey, 255 P.3d at 1043.
The 2012 disclosure form is a four-page-long document that USAA sent to
the Allens. See Aplt.’s App., Vol. III, at 743–46. The form is entitled
“SUMMARY DISCLOSURE FORM” and states on its first page that “[t]his
summary disclosure form is a basic guide to the major coverages and exclusions
in your policy. It is a general description. It is not a policy of any kind.” Id. at
743. The disclosure form further directs the insured—in bolded, capital
letters—to “PLEASE READ YOUR POLICY FOR COMPLETE DETAILS. THIS
SUMMARY DISCLOSURE FORM SHALL NOT BE CONSTRUED TO
REPLACE ANY PROVISION OF THE POLICY ITSELF.” Id. (bold-face font
omitted). This text is easily the most prominent feature on the first page of the
disclosure form.
8
The disclosure form includes a subsection describing the “Medical
Payments Coverage” of the Allens’ policy. Id. at 745. Mr. Allen argues that this
subsection creates a reasonable expectation of time-unlimited coverage.
Specifically, he points to a portion of the subsection that states: “Medical
payments coverage pays for you and your passengers[’] reasonable health care
expenses incurred for bodily injury caused by an automobile accident.” Id. This
subsection further elaborates that in the event of an accident, “your medical
payments coverage will pay before your health insurance coverage,” and that
“[m]edical payments coverage will apply toward health coverage coinsurance or
deductible amounts.” Id. Finally, the subsection admonishes the insured to
“[p]lease read your policy for other conditions and exclusions.” Id.
Mr. Allen argues that the disclosure form makes the one-year limitation
period unenforceable because it creates a reasonable expectation on the part of the
insured that he or she will receive coverage for all reasonable medical expenses
arising from an accident (up to the policy limit), regardless of when those
expenses are incurred. As Mr. Allen puts it: “Common and necessary
accident-related health care expenses will naturally arise more than a year after
the accident—physical therapy, occupational therapy, surgical treatments used as
a last resort . . . or a reluctant patient’s attitude or pain tolerance can all delay
treatment” beyond the one-year mark. Aplt.’s Opening Br. at 15.
9
But Mr. Allen’s argument to this effect fails because, when viewed as a
whole, the 2012 disclosure form is simply not deceptive. To begin with, the form
never explicitly states that the time limit for medical-payments coverage is
unlimited. Moreover, the form instructs the insured to “read your policy for other
conditions and exclusions,” Aplt.’s App., Vol. III, at 745, and, as the district court
correctly observed, the policy’s information regarding the one-year limitation
period “is not buried knee-deep in legalese or small print” but rather, “is easily
readable and accessible under the part of the policy labeled ‘MEDICAL
PAYMENTS.’” Id. at 779 (Op. & Order, dated July 10, 2017). The form’s
language is also not independently deceptive; on the contrary, it tracks the model
disclosure language released by the Colorado Department of Insurance. See 3
Colo. Code Regs. § 702-5:5-2-16 (containing the model language).
Additionally, as noted supra, the form instructs readers that it is “not a
policy of any kind” and tells them to “please read your policy for complete
details.” Aplt.’s App, Vol. III, at 743. It holds itself out as no more than “a basic
guide to the major coverages and exclusions in your policy,” and thus as only “a
general description” of the policy’s terms. Id. (emphases added).
For these reasons, the district court was correct to conclude that Colorado’s
reasonable-expectations doctrine does not supply a means to circumvent the
policy’s one-year limitation period for medical-payments coverage. The 2012
disclosure form simply did not amount to a “deception.” Bailey, 255 P.3d at
10
1053. This is not a case like Davis v. M.L.G. Corp., 712 P.2d 985 (Colo. 1986),
where the Colorado Supreme Court invalidated an exclusionary insurance policy
term that was written in tiny, “light grey type on white paper,” and where the
insurer “made a ‘concerted effort’ to discourage persons from reading” the
exclusionary language. 712 P.2d at 992. Rather, this case much more closely
resembles 2-BT, LLC v. Preferred Contractors Insurance Co. Risk Retention
Group, LLC, No. 12-cv-02167-PAB-KLM, 2013 WL 5729932 (D. Colo. Oct. 18,
2013) (unpublished), where a Colorado federal district court found under
Colorado law that there was no deception where the insured party had been
exhorted to “Please read all portions of [its] policy carefully” because “there are a
number of . . . terms that may delete, modify or expand the coverage provisions
stated elsewhere in the policy.” 2013 WL 5729932, at *9 (capitalization omitted).
Because the policy’s exclusionary language was easily accessible and
unambiguous, and because an objectively reasonable person would not, upon
reading the 2012 disclosure form, have been deceived into thinking that it created
a promise of time-unlimited medical-payments coverage, the district court was
correct to reject Mr. Allen’s reasonable-expectations theory. 3 Put another way,
3
Mr. Allen also argues, in a footnote, that the district court “abused its
discretion by granting summary judgment without an adequate opportunity for
discovery into USAA’s state of mind.” Aplt.’s Opening Br. at 27 n.3. However,
Mr. Allen, in his cursory argument on this score, does not specify what discovery
materials he seeks or why those materials would be germane to the present appeal.
(continued...)
11
Mr. Allen has not shown that, through “deception attributable to the insurer, an
objectively reasonable insured would have believed he or she possessed coverage
later denied by [the] insurer.” Bailey, 255 P.3d at 1054.
The Colorado Supreme Court has made clear that we are not to use the
reasonable-expectations doctrine to expand coverage “on a general equitable
basis.” Id. (quoting Johnson v. Farm Bureau Mut. Ins. Co., 533 N.W.2d 203, 206
(Iowa 1995)); see also Craft v. Philadelphia Indemnity Ins. Co., 343 P.3d 951,
960 (Colo. 2015) (noting that the reasonable-expectations doctrine is “a means of
avoiding an unfair result where the insurer has engaged in some sort of
deception” (emphasis added)). In the absence of a showing of deception,
therefore, we hold that the reasonable-expectations doctrine does not avail Mr.
Allen.
B
Mr. Allen advances a second argument for why the policy’s one-year time
limit on medical-payments coverage is unenforceable: specifically, he contends
3
(...continued)
He has therefore waived this argument. See Nixon v. City & Cty. of Denver, 784
F.3d 1364, 1368 (10th Cir. 2015) (stating that arguments that are “not adequately
developed in a party’s [opening] brief” are waived); accord Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 841 (10th Cir. 2005) (stating that
“[i]ssues will be deemed waived if they are not adequately briefed” (quoting
Utahns for Better Transp. v. United States Dep’t of Transp., 305 F.3d 1152, 1175
(10th Cir. 2002))).
12
that it is prohibited by Colorado’s MedPay statute, C OLO . R EV . S TAT . § 10-4-635. 4
But this argument is also without merit: stated briefly, nothing in the plain text of
the MedPay statute prohibits insurance companies from including a time limit on
medical-payments coverage. Therefore, we reject Mr. Allen’s second argument.
We explicate our reasoning below.
We apply Colorado law in determining how best to interpret a Colorado
statute in a case resting on diversity jurisdiction. See, e.g., Parish Oil Co., Inc. v.
Dillon Companies, Inc., 523 F.3d 1244, 1248 (10th Cir. 2008) (“As we are sitting
in diversity and construing a Colorado statute, we must give it the meaning it
would have in the Colorado courts.”). Under Colorado law, the “primary goal of
statutory interpretation is to ascertain and give effect to the legislature’s intent.”
Lewis v. Taylor, 375 P.3d 1205, 1209 (Colo. 2016). To do this, Colorado courts
“look to the plain meaning of the statutory language and consider it within the
context of the statute as a whole. If the statutory language is clear, [Colorado
courts] apply it as such.” Id. (citing Denver Post Corp. v. Ritter, 255 P.3d 1083,
1088 (Colo. 2011)). Moreover, “[i]n the absence of statutory inhibition, an
insurer may impose any terms and conditions [in an insurance agreement]
4
Mr. Allen sometimes characterizes this issue, without specificity, as
whether placing a time limit on medical-payments coverage violates Colorado’s
“public policy.” Aplt.’s Opening Br. at 2; Aplt.’s Reply Br. at 20. However, his
exposition of this issue clarifies that he actually believes such a time limit is
“unenforceable because it violates public policy as expressed in the Med Pay
statute.” Aplt.’s Reply Br. at 22 (emphasis added).
13
consistent with public policy which it may see fit.” Chacon v. Am. Family Mut.
Ins. Co., 788 P.2d 748, 750 (Colo. 1990).
The MedPay statute requires that all automobile insurance policies issued
in Colorado provide at least $5,000 of coverage “for medical payments . . . for
bodily injury, sickness, or disease resulting from the ownership, maintenance, or
use of [a] motor vehicle.” C OLO . R EV . S TAT . § 10-4-635(1)(a). The statute
further provides that “medical payments benefits shall be paid to persons
providing medically necessary and accident-related trauma care or medical care.”
Id. § 10-4-635(2)(a). The MedPay statute also sets up an order of priority for
payments, so that “licensed ambulances or air ambulances that provide trauma
care at the scene of or immediately after” a car accident receive payment from the
medical coverage first; trauma physicians who provide trauma care to the insured
receive payments next; trauma centers receive payments after the physicians; and
other healthcare providers obtain payment from the policy’s remaining balance.
Id. § 10-4-635(2)(b)(I)–(IV). In short, the MedPay statute sets up a regime under
which Colorado car insurance policies are required to finance a minimum of
$5,000 in payments to medical providers; however, the statute says nothing about
whether car insurance companies can establish time limits for the collection of
those medical benefits.
Mr. Allen does not contest the fact that the MedPay statute is silent as to
whether an insurer may include a time limit on medical-payments coverage in an
14
insurance agreement. See Aplt.’s Opening Br. at 32 (“The statute limits Med Pay
coverage in scope and amount but not time.”). Instead, he claims that we should
infer from the statute’s silence a prohibition on such time limits. We decline to
do so, because under Colorado law, we are not at liberty to “supply the missing
[statutory] language” that a party believes should have been included in a statute,
but “must respect the legislature’s choice of language.” Turbyne v. People, 151
P.3d 563, 568 (Colo. 2007) (citing Colo. Dep’t of Revenue v. Hibbs, 122 P.3d
999, 1004 (Colo. 2005)); accord Colo. Dep’t of Labor and Emp’t v. Esser, 30
P.3d 189, 196 (Colo. 2001) (“In selecting its statutory wording, the General
Assembly did not require a mental impairment claimant to present ‘live’ or ‘oral’
or ‘verified’ or ‘under oath’ testimony of a licensed physician or psychologist.
To add these words to the statutory provision would undermine the General
Assembly’s intent to provide a speedy, efficient, and timely presentation of facts
to the agency decision-makers by claimants who may or may not be represented
by counsel.”).
Our interpretation of the MedPay statute is informed by Coats v. Dish
Network, LLC, 350 P.3d 849 (Colo. 2015), where the Colorado Supreme Court
refused to add language to a statute that would have expanded the scope of
activities protected under the statute. In Coats, the plaintiff-petitioner, Mr. Coats,
was fired from his job after using medical marijuana—an activity that Colorado
law permits but federal law prohibits. Mr. Coats argued that a Colorado statute,
15
C OLO . R EV . S TAT . § 24-34-402.5, which prohibits firing an employee for the
employee’s “lawful” activities outside of work, should have protected him. Mr.
Coats contended that the term “lawful” in the statute “should be read as limited to
activities lawful under state law.” Coats, 350 P.3d at 852. The Colorado
Supreme Court, however, refused to read such limiting language into the statute,
“declin[ing] Coats’s invitation to engraft a state law limitation onto the statutory
language.” Id.; see also id. (“Nothing in the language of the statute limits the
term ‘lawful’ to state law.”). As in Coats, so too here: nothing in the language of
the MedPay statute restricts the ability of insurers to place time limits on medical-
payments coverage. Accordingly, we decline Mr. Allen’s invitation to engraft
such a provision onto the statute.
Mr. Allen argues that subsection 635(1)(c) of the MedPay statute requires
“time-unlimited coverage” in the event that an insurer “fails to offer the required
[MedPay] coverage.” Aplt.’s Opening Br. at 32 (emphasis omitted). He reasons
therefore that the MedPay statute should be read to prohibit time limits of any
sort. We are unpersuaded. This argument is belied by subsection 635(1)(c)’s
text, which states: “If the insurer fails to offer medical payments coverage or fails
to maintain or provide proof that the named insured rejected medical payments
coverage in the manner required by this section, the insured’s policy shall be
presumed to include medical payments coverage with benefits of five thousand
dollars.” C OLO . R EV . S TAT . § 10-4-635(1)(c). This language says nothing about
16
establishing time-unlimited coverage, nor does it purport to restrict insurers from
imposing time limits on medical-payments coverage. For instance, even if an
insurer fails to offer a particular insured medical-payments coverage, nothing in
the statutory text prohibits the insurer from imposing a time limit otherwise
present in its policy language on the medical-payments coverage that the statute
would presume to be included in that insured’s policy. Moreover, to state the
obvious, Mr. Allen’s argument depends on applying the statute’s ostensible
prohibition on time limits—expressly found (so the argument goes) in a context
where an insurer has failed to comply with statute’s mandate, insofar as it has not
offered any MedPay coverage at all—to a setting where, as here, the insurer
actually complied with the statute’s mandate by offering such coverage. Yet, Mr.
Allen does not offer a persuasive explanation for why it makes sense to infer that
the Colorado legislature contemplated such an application to this dissimilar
setting of compliance—especially because, as noted, no such time limits appear in
the plain terms of the statutory grant of MedPay coverage.
Mr. Allen also argues that the MedPay statute’s purpose and legislative
history support reading the statute as prohibiting time limits on medical-payments
coverage. However, we decline to venture beyond the statute’s plain text, since
we do not find the MedPay statute to be ambiguous (i.e., we do not think that the
text of the MedPay statute is susceptible to more than one meaning, at least as
regards the question presented in this case). Meardon v. Freedom Life Ins. Co. of
17
Am., 417 P.3d 929, 934 (Colo. App. 2018) (stating that “we may not consider [a
statute’s] legislative history” “because there is nothing ambiguous about that
statute”); People v. McCoy, --- P.3d ----, 2015 WL 3776920, at *7 (Colo. App.
2015) (noting that “we do not consider this [legislative] history because the
statute’s terms are unambiguous”), cert. granted in part on other grounds, 2016
WL 5723893 (Colo. Oct. 3, 2016). 5
5
To be sure, we recognize that, in holding that the MedPay statute
does not prohibit an insurer from imposing a two-year limit on medical-benefits
coverage, a panel of our court concluded that the MedPay statute is “ambiguous.”
Countryman v. Farmers Ins. Exch., 545 F. App’x 762, 765 (10th Cir. 2013)
(unpublished). However, Countryman is a nonprecedential decision and thus not
binding on us. See 10 TH C IR . R. 32.1. And, after careful examination of the
statute’s text, we are constrained to respectfully disagree with the Countryman
panel. Countryman correctly noted that, under Colorado law, a statute is
ambiguous when “multiple interpretations [of the statute] are reasonable.” Grant
v. People, 48 P.3d 543, 548 (Colo. 2002) (citing State v. Nieto, 993 P.2d 493, 502
(Colo. 2000)); accord Lewis, 375 P.3d at 1209 (concluding that a statute is
“ambiguous” where it is “reasonably susceptible to multiple meanings”). But
Countryman reasoned that the MedPay statute was ambiguous merely because it
was silent about “whether an insurer may place time limits on Med-pay
coverage.” Countryman, 545 F. App’x at 764. More specifically, the panel
concluded that the statute was ambiguous because “[t]he silence could indicate
intent to disallow any time limits or to allow whatever time limit an insurer may
choose.” Id. However, contrary to Countryman’s logic, Colorado law makes
clear that silence does not make both of these interpretations “reasonable.” Id.
The interpretation that would prohibit time limits depends on adding terms to the
plain text of the statute that would have this prohibitory effect, whereas the one
that would permit an insurer to impose time limits does not. Because Colorado
law obliges us to respect “the legislature’s choice of language” and eschew
adding terms to a statute’s plain text under the guise of interpreting it, the latter
interpretation—that would permit time limits—is the reasonable one. Turbyne,
151 P.3d at 568; see Coats, 350 P.3d at 852 (“Nothing in the language of the
statute limits the term ‘lawful’ to state law.”). Indeed, even the Countryman
(continued...)
18
Accordingly, we reject Mr. Allen’s argument that the MedPay statute
prohibits the one-year time limit on medical-payments coverage contained in his
policy—resting our conclusion solely on that statute’s plain text, which contains
no such limitation. Cf. Cyan, Inc. v. Beaver Cty. Emps. Ret. Fund, --- U.S. ----,
138 S. Ct. 1061, 1072 (2018) (“Even assuming clear [statutory] text can ever give
5
(...continued)
panel acknowledged that “[t]he better interpretation would allow time limits
because the legislature could have forbidden them expressly if it had chosen to do
so,” 545 F. App’x at 765; in our view, the panel simply drew the wrong inference
from the legislature’s failure to forbid time limits in concluding that the statute
was ambiguous. Our interpretation of Colorado law is also consistent with
Colorado’s commitment to the freedom of contract in the insurance context. See
Bailey, 255 P.3d at 1047 (noting Colorado’s “strong commitment to the freedom
of contract” and that, “[e]ven within the context of statutorily mandated
insurance, insurers are free to include conditions and exclusions that are not
inconsistent with Colorado’s mandatory insurance laws”); Chacon, 788 P.2d at
750 (“In the absence of statutory inhibition, an insurer may impose any terms and
conditions consistent with public policy which it may see fit.”).
Tellingly, in the one Colorado Supreme Court case that Countryman cites in
support of its logic—Grant, 48 P.3d at 548— the court’s holding of ambiguity did
not turn on an inference of ambiguity from mere statutory silence. Rather, the
holding stemmed from the court’s recognition that the Colorado legislature had
used the key language in dispute—that is, “in writing”—in “varied” ways relative
to the question of whether any “writing” must be accompanied by a signature and,
therefore, as the court reasoned, “multiple interpretations [of the statute were]
reasonable” and the statute’s language was “ambiguous.” Id. Countryman did
not identify any circumstances analogous to Grant in the context of the MedPay
statute (e.g., varied legislative interpretations of key statutory phrases), nor has
Mr. Allen identified any. Therefore, Countryman’s reliance on Grant for the
proposition that ambiguity could be inferred from mere statutory silence was
misplaced. And, more generally, we respectfully decline to adopt the Countryman
panel’s holding that the MedPay statute is ambiguous regarding whether it
prohibits an insurer from imposing time limits on medical-payments coverage.
19
way to purpose, [the petitioner] would need some monster arguments on this score
to create doubts about [the statute’s] meaning.”). 6
* * *
In sum, we hold that the one-year time limit in Mr. Allen’s insurance policy
is enforceable. This is so because we conclude, as a matter of law, that the 2012
disclosure form is not deceptive and because the plain language of the MedPay
statute does not prohibit such time limits. 7
6
In 2015, a federal district court certified to the Colorado Supreme
Court questions about the permissibility under Colorado law of an insurer
imposing a time limit on MedPay coverage. See Nguyen v. Am. Family Mut. Ins.
Co., No. 15-cv-0639-WJM-KLM, 2015 WL 5867266, at *6 (D. Colo. Oct. 8,
2015) (unpublished). Though Mr. Allen “set forth his arguments for invalidating
the time limit” in this appeal, Aplt.’s Opening Br. at 31, he also urged this court
to “stay its hand” pending the Colorado Supreme Court’s answer to the questions
certified in Nguyen, id. at 30. However, Mr. Allen has advised us that, after oral
argument in this case, the Colorado Supreme Court expressly declined to answer
the questions certified in Nguyen. See Citation of Supp. Authority, No. 17-1282,
at 1 (10th Cir., filed Oct. 22, 2018) (attaching Or. of Ct., Nguyen v. Am. Family
Mut. Ins. Co., No. 2015SA346 (Colo. Oct. 19, 2018)). Mr. Allen’s request to
abate this appeal is therefore moot.
7
We underscore that our task here is simply to give effect to the plain
statutory language that the Colorado legislature selected. If, as a consequence of
our decision, insurers are tempted “to issue policies with limits as short as 72
hours,” or other arguably miserly time limits on medical-payments coverage, the
Colorado legislature could conceivably conclude that such time limits “conflict
with the legislative purpose and public policy goals of the statute” and re-write
the statute to prohibit policy provisions containing them. Countryman, 545 F.
App’x at 765 n.4. Or, of course, the legislature could reach a contrary conclusion
and choose to do nothing on this matter. Either way, the choice would involve
policy concerns that fall squarely within the province the Colorado
legislature—not a federal court sitting in diversity. And we offer no opinion
(continued...)
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IV
In conclusion, we AFFIRM the district court’s order granting summary
judgment in favor of USAA.
7
(...continued)
regarding the legal dimensions of such a hypothetical circumstance.
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