Peña v. American Family , 2018 COA 56 ( 2018 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
April 19, 2018
2018COA56
No. 17CA0098, Peña v. American Family — Insurance — Motor
Vehicles — Uninsured/Underinsured
A division of the court of appeals considers whether a
provision of an insurance policy permitting recovery for damages
from an uninsured motorist applies when a third party’s insurer
denies liability but not coverage. Here, the same insurer insured
both the plaintiff and the third party. Following a car accident, the
insurer took the third party’s position that he was not liable for the
damage to plaintiff’s car. Plaintiff sued insurer for unreasonably
delaying her claim for uninsured motorist property damage (UMPD).
Under her policy, plaintiff argued she was entitled to treat a denial
of liability as a denial of coverage. Her insurer asserts, and the
division agrees, that the plaintiff’s UMPD coverage does not apply
because a denial of liability does not amount to a denial of coverage.
COLORADO COURT OF APPEALS 2018COA56
Court of Appeals No. 17CA0098
Adams County District Court No. 16CV31040
Honorable Emily E. Anderson, Judge
Marissa Peña,
Plaintiff-Appellant,
v.
American Family Mutual Insurance Company,
Defendant-Appellee.
JUDGMENT AFFIRMED
Division II
Opinion by JUDGE DAILEY
Navarro and Márquez*, JJ., concur
Announced April 19, 2018
Bendinelli Law Firm, P.C., Marc F. Bendinelli, Westminster, Colorado, for
Plaintiff-Appellant
Michael L. Adams, Ted Wallace, Englewood, Colorado, for Defendant-Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶1 Plaintiff, Marissa Peña, appeals the district court’s judgment
dismissing her complaint against defendant, American Family
Mutual Insurance Company. We affirm.
I. Background
¶2 While driving her car on June 24, 2013, Peña was involved in
a three-car collision. When the accident occurred, she was insured
by American Family Mutual Insurance Company (American Family).
So too was one of the other drivers involved in the accident, Herman
Garner.
¶3 In November 2013, Peña sent a letter to American Family
asserting a claim under the uninsured motorist provisions of her
policy. On September 9, 2015, the law firm representing Peña sent
American Family another letter, specifically asserting that despite
the conclusion of an investigating police officer
assigning 100% pf [sic] the fault to Mr. Garner
for causing this collision[,] . . . American
Family is refusing to repair Ms. Pena’s car
under Mr. Garner’s Property Damage coverage.
....
Further, . . . Ms. Pena has Uninsured Motorist
Property damage coverage stemming from her
own policy. As you know, a denial from Mr.
Garner’s insurance company (here American
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Family) permits Ms. Pena to treat Mr. Garner
as uninsured[,] entitling Ms. Pena [to]
Uninsured Motorist Property Damage coverage.
However, American Family has never issued a
check for the damages to Ms. Pena’s vehicle
under that coverage either.1
¶4 On September 17, 2015, American Family responded that it
was denying Peña’s claim because (1) having completed its own
investigation in the matter, it had “determined that Herman Garner
is not responsible for the damage to either vehicle involved in the
claim” and (2) because (as pertinent here) Garner’s vehicle “had
active coverage at the time of the [accident],” Peña’s “coverage of
Uninsured Motorists Property Damage would not apply.”
¶5 Peña instituted two actions, one against Garner,2 the other
against American Family. In the case now before us, Peña sued
American Family under section 10-3-1115, C.R.S. 2017, for the
unreasonable delay and denial of benefits due under the Uninsured
Motorist Property Damage (UMPD) provisions of her policy. In
support of this claim, she alleged that her UMPD coverage
1The law firm sought only the $2,794.03 which an auto body shop
had estimated would be required to repair Peña’s car.
2 American Family has apparently hired counsel to defend Garner
in that action.
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encompassed her situation here because it “expressly included
vehicles that were insured by a . . . policy at the time of the accident
but the insurer denies coverage.”
¶6 American Family moved to dismiss, arguing that Peña’s
complaint failed, as a matter of law, to state a claim upon which
relief could be granted because Peña’s UMPD coverage applied only
if American Family (as Garner’s insurer) denied coverage (rather
than liability) for Garner in connection with the accident. Because,
according to American Family, it had not denied Garner’s coverage,
but only his liability, for the accident, Peña’s UMPD coverage would
not apply.
¶7 The district court agreed with American Family’s interpretation
of Peña’s policy and the distinction American Family made between
a denial of “coverage” and a denial of “liability.” But because
American Family had only denied Garner’s liability and the issue of
his liability had not yet been determined, the court concluded that
Peña’s UMPD coverage “would not apply at this point” and her
“lawsuit [was] premature.” Consequently, the court dismissed
Peña’s case without prejudice.
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II. Analysis
¶8 On appeal, Peña contends that the district court erred in
dismissing her case. We disagree, however, based on an analysis
somewhat different from that employed by the district court. See
Rush Creek Sols., Inc. v. Ute Mountain Ute Tribe, 107 P.3d 402, 406
(Colo. App. 2004) (concluding that a trial court’s ruling may be
affirmed based on any grounds that are supported by the record);
Chryar v. Wolf, 21 P.3d 428, 431 (Colo. App. 2000) (noting that a
judgment that reaches the correct result will be upheld on appeal
even if the stated reasons for a trial court’s ruling were erroneous).
A. Do We Have Jurisdiction?
¶9 Before addressing the merits of Peña’s contention, however, we
need to address our jurisdiction to hear this appeal. “The dismissal
of a complaint without prejudice is generally not appealable unless
such dismissal prohibits further proceedings, such as when the
applicable statute of limitations would prevent the reinstitution of
suit.” Golden Lodge No. 13, I.O.O.F. v. Easley, 916 P.2d 666, 667
(Colo. App. 1996); see Farmers Union Mut. Ins. Co. v. Bodell, 197
P.3d 913, 916 (Mont. 2008) (An order dismissing a complaint
without prejudice is not an appealable order absent the existence of
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special circumstances such as “the running of a statute of
limitations, language in the order of dismissal indicating that the
complainant will not be permitted to re-plead, or where the practical
effect of the order of dismissal terminates the litigation in the
complainant’s chosen forum.”).
¶ 10 It would appear, at first blush, that the district court’s order of
dismissal here is not appealable. The district court, remember,
dismissed the complaint because, in its view, the complaint was
prematurely brought. Almost by definition, a complaint that was
prematurely brought could not have been belatedly brought for
statute of limitations purposes.
¶ 11 As explained below, however, we reject the district court’s
determination that the case was prematurely brought. And because
the applicable two-year limitations period measured from American
Family’s September 17, 2015, response, has expired, Peña would
have no avenue for relief if we were to turn aside her appeal. See
Wardcraft Homes, Inc. v. Emp’rs Mut. Cas. Co., 70 F. Supp. 3d 1198,
1213 (D. Colo. 2014) (applying the two year limitations period of
section 13-80-102(1)(a), C.R.S. 2017, for actions brought under
section 10-3-1115).
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B. Was the Complaint Properly Dismissed?
¶ 12 Regarding the merits of Peña’s contention, we review de novo
the district court’s ruling on a C.R.C.P. 12(b)(5) motion to dismiss
for failure to state a claim upon which relief can be granted. Denver
Post Corp. v. Ritter, 255 P.3d 1083, 1088 (Colo. 2011).
¶ 13 A complaint may be dismissed if the substantive law does not
support the claims asserted, W. Innovations, Inc. v. Sonitrol Corp.,
187 P.3d 1155, 1158 (Colo. App. 2008), or if the plaintiff’s factual
allegations do not, as a matter of law, support a claim for relief,
Ritter, 255 P.3d at 1088; cf. Warne v. Hall, 2016 CO 50, ¶ 1 (“[A]
complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim for relief that is plausible on its face.’” (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009))).
¶ 14 In resolving a Rule 12(b)(5) motion to dismiss, a court may
consider only the facts alleged in the complaint, documents
attached as exhibits or referenced in the complaint, and matters of
which the court may take judicial notice, such as public records.
Walker v. Van Laningham, 148 P.3d 391, 397 (Colo. App. 2006)
(discussing judicial notice); Yadon v. Lowry, 126 P.3d 332, 336
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(Colo. App. 2005) (discussing documents attached or referenced in
the complaint).3
¶ 15 Although we view the factual allegations in the complaint as
true and in the light most favorable to the plaintiff, Ritter, 255 P.3d
at 1088, “we are not required to accept as true legal conclusions
that are couched as factual allegations,” Fry v. Lee, 2013 COA 100,
¶ 17, and, when documents are properly before the court, their
legal effect is determined by their contents rather than by
allegations in the complaint, see Stauffer v. Stegeman, 165 P.3d
713, 716 (Colo. App. 2006) (noting, also, that a court is not required
to accept legal conclusions or factual allegations at variance with
the express terms of those documents).
¶ 16 On appeal, Peña asserts that the district court erred in not
considering whether American Family unreasonably delayed or
denied her claim before dismissing her action. We are not
persuaded.
3 If other matters are presented to and considered by the court, the
motion “shall be treated as [a motion] for summary judgment and
disposed of as provided in C.R.C.P. 56[.]” C.R.C.P. 12(b). From our
view it appears that no other matters were considered by the court.
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¶ 17 Peña’s complaint did not assert a claim against American
Family in its role as Garner’s insurer; it asserted, instead, a claim
against American Family as her insurer. So the question, in the
first instance, was a legal one, i.e., what was American Family’s
duty to her under the UMPD provisions of her policy.
¶ 18 Under that policy, American Family agreed to
pay compensatory damages which [Peña is]
legally entitled to recover from the owner or
operator of an uninsured motor vehicle
because of loss or damage caused by an
accident arising out of physical contact with
[her] insured car. The owner or operator’s
liability for these damages must arise out of
the ownership, maintenance, or use of the
uninsured motor vehicle.
Of critical importance, the policy defined an “uninsured motor
vehicle” to mean, as pertinent here, “a land motor vehicle . . .
insured by a . . . policy at the time of the accident but the insurer
denies coverage. . . .” (Emphasis added.)
¶ 19 Peña argues that under the terms of her policy, she is entitled
to pursue her claim because (1) the police report generated after the
accident cited Garner as “100% liable” for the accident; and (2)
despite the report, American Family denies that Garner is liable and
is providing a defense for him in the other case. Peña’s UMPD
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coverage was applicable, she asserts, because Garner’s insurer
(American Family) was denying liability.
¶ 20 But, as other courts recognize, a denial of claim by an insurer
for lack of coverage is very different than a denial of a claim by an
insurer on the ground that its insured is not liable:
The former involves a determination as to
whether the particular claim asserted is one to
which the policy was intended to apply,
whereas the latter involves a determination as
to the viability of the claim itself. “‘Coverage’
and ‘claim’ are by no means synonymous; . . .
an insurer against whom a claim is made will
frequently deny such claim on issues relating
to liability even though coverage actually is
afforded in the event that the question of
liability is eventually determined against it.”
Page v. Insurance Co. of N. America, . . . 64 Cal.
Rptr. 89, [84] ([Cal. Ct. App.] 1967) (construing
“uninsured motor vehicle” under California
statute). This, however, does not render the
insured uninsured as to that claim. The
aggrieved party may still file suit against the
alleged tortfeasor and, if successful, recover
from that person’s insurer, so long as the
claim is within the scope of the policy. See
generally 8C Appleman & Appleman,
Insurance Law & Practice § 5076.15, at 151
(1981) (“A denial of [a] plaintiff’s claim is not,
of course, necessarily a denial of coverage[.]”).
Noel v. Metro. Prop. & Liab. Ins. Co., 672 N.E.2d 119, 121 (Mass.
App. Ct. 1996); accord Estate of Anderson v. Safeco Ins. Co. of Ill.,
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567 F.3d 404, 407 (8th Cir. 2009) (“[I]t would be ‘unreasonable in
the context of uninsured motorist insurance to define ‘coverage’ to
include a denial by the liability insurer of the insured’s fault in the
accident.’ To allow for such a definition would conflate ‘coverage’
with ‘liability’ when the two are not synonymous. . . . Several
courts have noted this distinction in pointing out that ‘coverage’
relates to whether the policy was intended to apply to a particular
claim, whereas ‘liability’ addresses the viability of the claim on the
facts.”) (citations omitted); Page, 64 Cal. Rptr. at 93-94 (“[I]t is
practically a matter of common knowledge that an insurer against
whom a claim is made will frequently deny such claim on issues
relating to liability even though coverage actually is afforded in the
event that the question of liability is eventually determined against
it.”); Clark v. Prudential Prop. & Cas. Ins. Co., 66 P.3d 242, 245
(Idaho 2003) (stating “[c]overage relates to whether [the insured] has
insurance to cover the accident, and liability relates to whether [the
insured] was at fault, thus triggering the insurer’s obligation to
pay”).
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¶ 21 Because Garner’s insurer (i.e., American Family) denied
liability but not coverage for the accident, the UMPD coverage of
Peña’s policy with American Family was inapplicable. See, e.g.,
Clark, 66 P.3d at 245 (denying uninsured motorist coverage when
the insurer did not deny coverage but denied liability).4 And
because there was no applicable UMPD coverage here for Peña,
there were no benefits which could have unreasonably been delayed
or denied under section 10-3-1115. Simply put, Peña had no claim,
as a matter of law.
¶ 22 The district court did not reach this conclusion, determining
instead that Peña’s lawsuit was premature because Garner’s
liability had not yet been established. This determination was in
error: Peña will never have a claim against American Family under
her policy for unpaid UMPD benefits in connection with this
accident. The reason? Garner’s insurer (American Family) has not
denied coverage, the circumstance which would trigger the
4 In her reply brief, Peña argued that we should not interpret her
policy this way because (1) the term “coverage” is ambiguous and
ambiguities in a policy are construed against the insurer; and (2)
the interpretation urged by American Family would violate public
policy. We do not, however, consider arguments raised for the first
time in a reply brief. See Meadow Homes Dev. Corp. v. Bowens, 211
P.3d 743, 748 (Colo. App. 2009).
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applicability of Peña’s UMPD coverage. If Garner is ultimately
found liable, Peña will have a claim against American Family under
the liability provisions of his policy, not under the UMPD provisions
of hers. And if he is not, she has no claim at all.
III. Conclusion
¶ 23 The judgment is affirmed.
JUDGE NAVARRO and JUDGE MÁRQUEZ concur.
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