Farmers Alliance Mut. Ins. Co. v. Cutrone

448 F.Supp.2d 1226

FARMERS ALLIANCE MUTUAL INSURANCE COMPANY, Plaintiff, v. Chris J. CUTRONE, Defendant.

Civil Action No. 05-cv-01346-PSF-MEH.

United States District Court, D. Colorado.

August 31, 2006.

Christopher P. Seerveld, Peterson Dymond Reagor, LLP, Greenwood Village, CO, for Plaintiff.

Matthew Rodney Giacomini, Springer & Steinberg, P.C., Denver, CO, for Defendant.

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

FIGA, District Judge.

This matter is before the Court on Plaintiffs Motion for Summary Judgment (Dkt.# 13) filed on January 27, 2006, and Defendant's Cross-Motion for Summary Judgment (Dkt.# 21), filed February 24, 2006. Both motions are fully briefed and ready for disposition.

I.BACKGROUND

On May 8, 2003, as part of his employment as a Technician¹ with the Colorado State Patrol, Defendant Chris Cutrone ("Trooper Cutrone") was patrolling a highway south of Cortez, Colorado. Compl. (Dkt.# 1) ¶ 9; Ans. (Dkt.# 7) ¶ 13. Another State Patrol Trooper called Trooper Cutrone to inform him that there was a person who "looked suspicious" in a vehicle coming toward Trooper Cutrone and that he should watch for that vehicle. Compl. ¶ 10; Ans. ¶ 14. Trooper Cutrone observed the vehicle and stopped it for "following too closely." Cutrone Sworn Statement, Ex. 2 to Pl.'s Br. Supp. S.J. (Dkt.# 13) at 4. The driver was later identified as Brent David Derrick and the vehicle was a Buick LeSabre. Pl's Br. Supp. S.J. at 3. Derrick pulled the Buick off the highway onto the shoulder and stopped immediately after Trooper Cutrone turned on his patrol car lights. Cutrone Sworn Statement at 9.

Trooper Cutrone stopped his patrol car approximately 18 to 20 feet behind the Buick. Compl. ¶ 15; Ans. ¶ 19. Approximately 20 seconds passed from the time Derrick brought the Buick to a stop to the time when Trooper Cutrone exited his patrol vehicle to contact the driver. Cutrone Sworn Statement at 11. In accordance with his State Patrol training, Trooper Cutrone approached the Buick by touching the trunk, proceeding past the back door to the post between the back passenger door and the driver's door, which is referred to as the "B" post. Compl. ¶¶ 19-20; Ans. ¶¶ 2324. The procedure of greeting the car at the "B" post allows officers to watch the driver's hands. Compl. ¶¶ 19; Ans. ¶ 23.

Following procedure, Trooper Cutrone leaned forward from the "B" post to greet the driver. Comp. ¶¶ 28-29; Ans. ¶¶ 32-33. As Trooper Cutrone was leaning forward from the "B" post, Derrick turned to his left, looked at Trooper Cutrone, raised a .45 caliber pistol, and shot Trooper Cutrone three times through the open driver's side window. Compl. ¶ 29; Cutrone Sworn Statement at 12-14.

At the time of the incident, Trooper Cutrone had a Personal Auto Policy ("Policy") issued by Plaintiff Farmers Alliance Mutual Insurance Company ("Farmers") numbered PV 113541, with coverage from January 14, 2003 to January 14, 2004. Compl. ¶ 38; Ans. ¶ 42. The policy provides uninsured motorist ("UM") coverage, subject to certain terms and conditions, with a limit of liability of $100,000. Compl. ¶ 40; Ans. ¶ 44. The policy contains the following language:

We will pay compensatory damages which an "insured" is legally entitled to recover from the owner or operator of an "uninsured motor vehicle" because of "bodily injury": (1) Sustained by an "insured"; and (2) Caused by an accident. The owner's or operator's liability for these damages must arise out of the ownership, maintenance or use of the "uninsured motor vehicle".

Ex. 1 attached to Pl.'s Br.Supp. at 5 (emphasis added). Trooper Cutrone made a claim with Farmers under the Policy for UM benefits in the amount of $100,000 for injuries sustained in the May 8, 2003 shooting. Compl. ¶ 41; Ans. ¶ 45.

Trooper Cutrone asserts that it can establish the fact that the Buick was uninsured at the time of the shooting. Def.'s Reply Supp. S.J. Cross-Motion (Dkt.# 29) at 9. Derrick assaulted Betty Reid in Texas on April 30, 2003 and stole Ms. Reid's Buick LeSabre. Ex. A attached to Def.'s Reply at 9. Ms. Reid had her own insurance policy issued by Republic Insurance Company. Ex. B attached to Def.'s Reply. Because Derrick was not an authorized driver on Ms. Reid's policy and because the record indicates no independent policy issued to Derrick, Trooper Cutrone contends that accidents involving Derrick's use of the Buick would activate a policy holder's UM coverage. Def.'s Reply at 10.

On July 19, 2005, Farmers filed a Complaint for Declaratory Judgment seeking an order declaring that Trooper Cutrone is not entitled to recover for UM coverage. Trooper Cutrone's Answer (Dkt.# 7) presented several defenses and counterclaims for breach of contract, bad faith breach of insurance contract, and deceptive trade practices. The Complaint asserts jurisdiction under 28 U.S.C. § 1332, diversity of citizenship. Compl. at ¶ 3. Both parties in their motions for summary judgment seek a declaration as to whether UM coverage is available in this situation, and both agree that the claim for declaratory relief presents solely a legal issue and is thus appropriate for summary judgment. Def.'s Cross-Mot. S.J. (Dkt.# 21) at 1; Pl.'s Br.Supp. S.J. at 1.

II. APPLICABLE LEGAL STANDARDS

Summary judgment is appropriate under F.R.Civ.P. 56(c) "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When applying this standard, a court reviews the pleadings and the documentary evidence in the light most favorable to the nonmoving party. See Gray v. Phillips Petroleum Co., 858 F.2d 610, 613 (10th Cir.1988). To defeat a properly supported motion for summary judgment, "there must be evidence on which the jury could reasonably find for the" nonmoving party. Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir.1995), cert. denied, 516 U.S. 1160, 116 S.Ct. 1045, 134 L.Ed.2d 192 (1996) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). In addition, "`where the non moving party will bear the burden of proof at trial on a dispositive issue' that party must `go beyond the pleadings' and `designate specific facts' so as to `make a showing sufficient to establish the existence of an element essential to that party's case' in order to survive summary judgment." McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir.1998) (quoting Celotex, 477 U.S. at 322, 106 S.Ct. 2548).

When parties file cross-motions for summary judgment and there is no nonmoving party, the Court may assume that it need not consider any evidence other than materials filed by the parties. James Barlow Family Ltd. Partnership v. David M. Munson, Inc., 132 F.3d 1316, 1319 (10th Cir.1997), cert. denied, 523 U.S. 1048, 118 S.Ct. 1364, 140 L.Ed.2d 513 (1998) (citations omitted). If the materials submitted give rise to a genuine issue of material fact, summary judgment is inappropriate. Id. The standard for summary judgment presented by F.R.Civ.P. 56 is applicable for cases seeking declaratory judgment. United States v. Gammache, 713 F.2d 588, 594 (10th Cir.1983).

As a district court sitting in diversity, this Court must apply the substantive law of Colorado, the forum state. See e.g. Salve Regina College v. Russell, 499 U.S. 225, 226, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991). In Colorado, the construction of an insurance contract is a question of law governed by the general law of contracts. F.D.I.C. v. American Cas. Co. of Reading, Pa., 843 P.2d 1285, 128990 (1992). If the terms of the policy are ambiguous, a court should construe the policy against the insurer and in favor of coverage. Nicholls v. Zurich Am. Ins. Group, 244 F.Supp.2d 1144, 1156 (D.Colo.2003) (applying Colorado law). If, however, an insurance policy is unambiguous, a court will enforce it in accord with its plain language. Id.

Colorado law recognizes two provisos to the rule that an insurance policy is to be interpreted according to the settled principles of contract law. First, a court must take into account "a common-law duty `not to unreasonably withhold payment of because the contract creates a quasi-fiduciary'" duty. State Farm Mut. Auto. Ins. Co. v. Kastner, 77 P.3d 1256, 1259-60 (Colo.2003) (quoting Farmer's Group, Inc. v. Williams, 805 P.2d 419, 423 (Colo.1991)). Second, the contract must comply with statutory requirements of UM coverage. Id. at 1260. The UM statute requires insurers to provide coverage against uninsured motorists for injuries for "arising out of ... use" of an automobile unless the insured rejects such coverage in writing. C.R.S. § 10-4-609(1)(a). Courts have interpreted the legislative intent of this statute to "provide compensation for injury caused by an uninsured motorist equal to that obtainable for injury caused by an insured motorist." State Farm Mut. Auto. Ins. Co. v. Nissen, 851 P.2d 165, 168 (Colo.1993) (citations omitted).

III. ANALYSIS

Farmers seeks a declaratory determination that the UM policy in question does not cover defendant's injuries. Pl.'s Mot. S.J. at 1.

A. Is the Underlying Incident an "Accident" Under the Policy?

A preliminary question is whether Trooper Cutrone was the victim of an "accident" under the terms of the policy, notwithstanding the intentional injury he suffered at the hands of a gunman. The Court assumes that he was. Where the term "accident" is undefined in an insurance policy, as here, whether an injury resulted from an accident for uninsured motorist coverage purposes is determined from the standpoint of the insured. State Farm Mut. Auto Ins. Co. v. McMillan, 925. P.2d 785, 793 (Colo.1996). While police duty is inherently dangerous, including the patrolling of highways, the facts leading up to the stop of...