Free Brief in Support of Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 00-CV-2098 - REB - MJW KELLY FINCHER, by her guardian, JAMES FINCHER, on behalf of herself and all others similarly situated, Plaintiffs, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant.

MEMORANDUM IN SUPPORT OF DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

I. INTRODUCTION Prudential Property & Casualty Insurance Company ("Prupac") asks the Court to grant summary judgment in its favor on the three remaining1 claims of Plaintiff Kelly Fincher, individually, excepting only her request for attorneys' fees. All of these claims are premised on Prupac's failure to pay Plaintiff extended NoFault "PIP" benefits, characterized as (1) breach of contract in the Second Cause of Action, (2) bad faith breach of a duty of good faith and fair dealing in the Third Cause of Action, and (3) willful and wanton breach in the Fourth Cause of Action.
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Only the Second, Third, and Fourth Causes of Action in the five-count Complaint are pending. The Court granted the relief requested in Plaintiff's First Cause of Action when it reformed the policy under which she claims. Findings of Fact, Conclusions of Law & Orders filed February 28, 2006 ("Reformation Order"). Exhibit A-1. The Court dismissed Plaintiff's Fifth Cause of Action based on the Colorado Deceptive Trade Practices Act. Order on Defendant's Motion for Partial Summary Judgment and to Dismiss filed March 24, 2005. Exhibit A-2 at 4. In addition to Plaintiff's individual claims, there is a class certification motion under submission. This motion for partial summary judgment does not address claims by the putative class or Plaintiff's prayer for attorneys' fees.

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Amended Class Action Complaint and Jury Demand ("Complaint"), Exhibit A-3, at ¶¶ 36-54. The relief requested in the Complaint in connection with these three causes of action is: (1) compensatory damages in the form of payment of

extended PIP benefits due under the Prupac automobile insurance policy reformed to include such benefits (Second Cause); (2) pre-judgment interest on the amount of those benefits at 18% under the former C.R.S. §10-4-708; (3) three times the amount of the unpaid benefits under the former C.R.S. §10-4-708 for Prupac's alleged willful and wanton conduct (Fourth Cause); and (4) exemplary damages for Prupac's alleged bad faith (Third Cause). Exhibit A-3, Prayer for Relief E-H. Plaintiff is not entitled to recover on these remaining three causes of action, as a matter of law, because (1) Prupac's payment of the maximum $200,000 of benefits and statutory interest on those benefits has rendered the breach of contract claim (Second Cause) moot, and (2) Prupac's conduct was based on reasonable legal positions and, therefore, was not in bad faith or willful and wanton (Third and Fourth Causes). II. UNDISPUTED MATERIAL FACTS There are no material facts in dispute. The Amended Scheduling Order of September 14, 2006 ("Scheduling Order") (Exhibit A-4 at 2-3) identified the basic facts the parties agree are undisputed as including those found on pages 2 through 6 of the Reformation Order (Exhibit A-1), with two exceptions that are not

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material to this motion.2 Other undisputed material facts (for purposes of this motion) include Plaintiff's allegations in this case, prior rulings of this Court and the Tenth Circuit, and a few additional facts that are documented in the record, as are noted below. Plaintiff was injured while riding a bicycle on May 8, 1994, when she was struck by a car driven by Anthony Bekeshka, who was insured under a Prupac policy he had purchased April 23, 1992. That policy provided the minimum level of PIP coverage required by (former) §10-4-706(1), C.R.S., which included a maximum of $50,000 per person per accident for medical expenses for bodily injury, $50,000 for rehabilitation expenses, $400 per week for wage loss for up to 52 weeks, and essential services benefits of $25.00 per day for one year after the accident. Exhibit A-1 at 3-4. When Bekeshka purchased the policy, Prupac was using an application form with an aggregate limit of $150,000 for extended PIP coverage (which was lower than the minimum $200,000 cap that Colorado law then allowed insurers to include). Id. 3-5. While waiting for approval by the Colorado Department of Insurance of its new rates and forms, Prupac implemented a policy and practice of requiring its agents to orally offer a $200,000 cap (id. at 5) and paying extended PIP claims up to the $200,000 cap (id. at 6). Bekeshka's policy covered pedestrians for these basic PIP benefits, and it is undisputed that Prupac timely paid all basic PIP benefits required by the policy--$100,000 for medical and rehabilitation benefits, and $7500 for essential
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Prupac objected to the wording of statements that Plaintiff will be required to live in an assisted living milieu the rest of her life, and that Bekeshka was "offered" only $150,000 of extended benefits.

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services benefits. Exhibit A-1 at 4; Exhibit A-4 at 3. Plaintiff's father testified that he had insurance, as an employee of the U.S. Army, which paid all of the remaining medical and rehabilitation expenses incurred as a result of the accident, and that this insurer was entitled to reimbursement of any expenses recovered from Prupac here. Exhibit A-5 (James Fincher deposition, 11/12/01) at 25, ll 9-20). Prupac made an additional payment of $92,500, representing the difference between what it had paid previously and the $200,000 this Court determined in its February 2006 reformation order was the maximum amount of benefits Prupac was required to pay. Exhibit A-4 at 3 (¶ 5.a). Prupac also made payment of $ 202,000 reflecting the amount it calculated to be the interest due under former C.R.S. §10-4-708 for the delay in paying these extended benefits as a result of the Court's reformation order--18% interest on all claimed expenses produced in discovery that it had not previously paid, accruing as of 30 days after the invoice date of these expenses (even though payment was not due under the No-Fault Act until 30 days after the date these invoices were submitted to Prupac). Exhibit A-6 (Affidavit of Clifton J. Latiolais, Jr.). Thus, Plaintiff already has received (1) payment in full ($107,500) from Prupac for her basic medical, rehabilitation and essential services benefits claims, (2) payment in full from her father's insurance of all of her medical and rehabilitation costs not paid by Prupac as basic PIP benefits, (3) additional payments from Prupac totaling $92,500 for the very same medical and rehabilitation costs previously paid by her father's insurance, and (4) interest in the amount of $202,000. These represent all PIP

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and extended PIP benefits claims submitted to Prupac by Plaintiff under the Bekeshka policy3. Plaintiff's allegations of bad faith are that Prupac: (1) "made a minimal effort, if any, to" identify Plaintiff as an insured entitled to extended PIP benefits under the Thompson and Brennan cases and to advise her of the availability of those benefits; and (2) "continued to prematurely terminate benefit payments" to Plaintiff despite knowledge of those cases. Exhibit A-3 at ¶¶ 45-46. The willful and wanton conduct alleged is essentially the same as the alleged bad faith--a refusal to pay Plaintiff extended PIP benefits after becoming aware of the Brennan case. Exhibit A-3 at ¶¶ 28-29, 49-53 (beginning some time after August 24, 1998, the date the Colorado Supreme Court denied certiorari in Brennan). In the Thompson case, the Colorado Court of Appeals held that a selfinsured rental car company was obligated under §10-4-710, C.R.S., to offer extended PIP coverage covering a passenger in a rented car and imposed a remedy of reformation of the policy to include such coverage. Thompson v.

Budget Rent-A-Car-Sys., Inc., 940 P.2d 987 (Colo. App. 1996) (rejecting as too speculative the argument that the rental customer would not have purchased extended PIP coverage if offered). In the Brennan case, the Colorado Court of Appeals held that §10-4-710, C.R.S., required insurers to offer extended PIP coverage that included pedestrians. Brennan v. Farmers Alliance Mut. Ins. Co., 961 P.2d 550 (Colo. App. 1998).

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Plaintiff never submitted a wage loss claim, because she never worked and suffered no wage losses. (Exhibit A-5, at p. 35, ll. 10-12).

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Prupac sought summary judgment here on the grounds, supported by Chief Judge Babcock's June 20, 2001, ruling in Clark v. State Farm Mut. Auto. Ins. Co., that the 1998 holding in Brennan requiring extended PIP coverage for pedestrians did not apply retroactively to Plaintiff's claims under a 1992 policy arising from a 1994 accident. Prupac also argued for summary judgment on the additional grounds that, in contrast to the rental customer in Thompson, the purchaser of the Prupac policy in this case had in fact received and declined an offer of extended PIP coverage. This Court granted Prupac summary judgment on the first grounds, that Brennan did not apply retroactively, and therefore did not reach the second argument. Exhibit A-7 at pp.7-8. The Tenth Circuit

reversed that decision and remanded the case for a determination on the specifics of the policy reformation. Fincher v. Prudential Property & Casualty Ins. Co., 2003 U.S. App. LEXIS 20188 (10th Cir. October 1, 2003). III. ARGUMENT A. Plaintiff's Second Cause of Action, seeking payment of extended PIP benefits as compensatory breach of contract damages, should be dismissed because such benefits have been paid in full and the claim is now moot. The elements of a claim for breach of a Colorado insurance contract are the same as those for breach of any contract. Fincher must prove: (1) existence of a contract; (2) performance by plaintiff or some justification for

nonperformance; (3) failure to perform the contract by defendant; and (4) damages to plaintiff. Arenberg v. Central United Life Ins. Co., 18 F. Supp. 2d 1167, 1172 (D. Colo. 1998). Fincher seeks contract damages consisting of

extended PIP benefits and statutory interest. Exhibit A-3, Prayer For Relief E-F.

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Prior rulings by the Tenth Circuit and this Court have decided the elements of liability, obligating Prupac to pay extended PIP benefits up to the $200,000 aggregate limit. Fincher can no longer establish any damages on her breach of contract claim for extended PIP benefits. Prupac resolved this damages issue and rendered the benefits claim moot by paying the maximum amount that it could owe as breach of contract damages. Prupac paid Plaintiff $92,500--the

difference between the $200,000 cap and the $107,500 it previously paid. Exhibit A-4 at 3 (¶ 5.a). Similarly, Fincher can no longer establish any damages on her breach of contract claim for statutory interest. The No-Fault Act provided for payment of interest on the amount of any benefits untimely paid: "The insurer shall pay interest to the insured on the benefits recovered at a rate of eighteen percent per annum, with interest commencing from the date the benefits recovered were due." §10-4-708(1.8), 5 C.R.S. After paying the additional $92,500 of extended PIP benefits, Prupac paid Plaintiff $202,000 in statutory (18%) interest on all documented expenses produced in discovery that it had not previously paid. Exhibit A-6. Summary judgment is appropriate where a case has become moot. "'An actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.'" Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997). Citing this rule, the Tenth Circuit affirmed a summary judgment on

grounds of mootness where the event for which injunctive relief was sought had

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passed and the plaintiff had abandoned any claim for compensatory damages. Utah Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248, 1257 (10th Cir. 2004). A case also is moot where, as here, liability has been determined and the defendant has provided all the relief to which the plaintiff is entitled. "Thus, where a plaintiff has received all of the requested relief to which she is legally entitled, there is no longer the requisite case or controversy, and the court is without jurisdiction." Ortiz v. John O. Butler Co., 94 F.3d 1121, 1125 (7th Cir. 1996) (affirming summary judgment in discharge case where NLRB settlement had provided lost wages and benefits and plaintiff was not entitled to additional compensatory or punitive damages as a matter of law). Similarly, in Weisenbach v. Kitchens of Sara Lee, when informed of the facts surrounding the plaintiff's resignation over sexual harassment, her employer fired the harassing supervisor and offered to reinstate her with back pay and benefits. The district court granted summary judgment on grounds of mootness, stating: "No other equitable relief would be appropriate under these facts, and no legal relief in the form of damages is permitted under the case law." 1989 U.S. Dist. LEXIS 10429 (N.D. Ill. August 31, 1989) at *4 (citing Bennett v. Corroon & Black Corp., 845 F.2d 104, 106 (5th Cir. 1988), cert. denied 109 S. Ct. 1140 (1989)). Thus, regardless of the amount of PIP benefits claimed by Fincher, Prupac would not be obligated to pay as breach of contract damages any more than the $200,000, plus interest, that it already has paid. With all liability and

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damages issues determined, and with all compensatory damages and interest paid, this part of Plaintiff's case is moot and ripe for summary judgment. B. Plaintiff's bad faith and willful and wanton claims in her Third and Fourth Causes of Action should be dismissed because Prupac had a reasonable basis for paying Plaintiff basic rather than extended PIP benefits. 1. Both the bad faith claim (Third Cause) and the willful and wanton claim (Fourth Cause) require Plaintiff to prove that Prupac had no reasonable basis for its position. Plaintiff's Third and Fourth Causes of Action for breach of the duty of good faith and fair dealing and willful and wanton breach, in contrast to her First Cause of Action for reformation, are not based on Prupac's non-compliant offer of extended PIP coverage to Bekeshka in 1992 or its conduct in obtaining Department of Insurance approval of its revised insurance forms prior to 1998. These causes of action are based, as explicitly pleaded, on Prupac's alleged conduct in not providing Plaintiff with extended PIP benefits after August 1998, when the Colorado Court Of Appeals' decision in Brennan made it clear that the obligation to offer those benefits applied to pedestrians. Exhibit A-3 at ¶¶ 45-46, 28-29, 49-53. Thus, the issue of the justification of Prupac's conduct in this motion is a different one, involving different conduct and a different legal standard for measuring that conduct, than the issue of justification addressed previously in the context of reformation. The issue now is not the justification for Prupac's delay in changing its forms to reflect the correct aggregate limit on extended PIP benefits; it is rather Prupac's right to rely on the legal positions that Brennan did not apply retroactively and that Bekeshka had waived extended PIP coverage in any event

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by rejecting an offer of such coverage. Therefore, the legal standard for judging Prupac's conduct is not the three-factor test in Clark v. State Farm Mut. Auto. Ins. Co., 319 F.3d 1234, 1243-1244 (10th Cir. 2003) for determining reformation issues. Rather, it is the Colorado test for determining whether an untimely

payment of benefits constitutes bad faith or willful and wanton conduct. Because the factual and legal issues in the reformation decision and in this motion are entirely different, the Court's February 28, 2006, determination that the date of reformation is the date of Plaintiff's accident is not determinative of Plaintiff's claims of bad faith and willful and wanton breach.4 An insured can recover damages for bad faith breach of an insurance contract based on traditional tort principles. Goodson v. American Standard Ins. Co. of Wisconsin, 89 P.3d 409, 415 (Colo. 2004). An insurer's breach of the duty of good faith and fair dealing gives rise to a separate cause of action sounding in tort. American Guarantee & Liab. Ins. Co. v. King, 97 P.3d 161, 169 (Colo. App. 2003). To prevail on her claim involving an issue of first-party or direct coverage, Fincher must prove by a preponderance of the evidence:

4

The Court decided in the Reformation Order that Prupac had a duty to offer Bekeshka extended PIP coverage with the correct $200,000 cap as of the date of Plaintiff's accident in 1994. This holding does not mean that a refusal to pay extended benefits to Plaintiff immediately after the accident necessarily was in bad faith or willful and wanton; such a determination would not allow for reasonable justifications for not paying this particular plaintiff like those argued in the previous summary judgment motion that this Court granted. This Court's holding regarding the date of reformation simply means that Prupac's refusal to pay could have been in bad faith in a particular instance, absent such a justification, because there was a duty to offer such coverage generally as of that point in time. It was not a finding that Prupac in fact acted in bad faith or committed a willful and wanton breach when it did not pay extended benefits to someone in Plaintiff's specific circumstances, a pedestrian injured prior to 1998 and covered by a policy whose purchaser had been offered and had rejected extended PIP coverage. That determination, which is the subject of the current motion and which the Court has not yet made, depends on an assessment of Prupac's legal justification for not paying the extended benefits after August 1998--Prupac's positions regarding the retroactive application of Brennan and the significance of Bekeshka's declination of extended PIP coverage.

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"...1) the existence of an insurer's duty to act in good faith and to deal fairly with its insured; 2) that the defendant insurer acted unreasonably under the circumstances; 3) that the defendant insurer knew that its position was unreasonable, or recklessly disregarded the fact that its position was unreasonable; and 4) that the defendant insurer's unreasonable position was a cause of the Plaintiff's damages." Hill v. Allstate Ins. Co., 2006 U.S. Dist. LEXIS 4635 at *20-*21 (D. Colo. January 24, 2006); Goodson, 89 P.3d at 415 (citing §13-25-127(1), 5 C.R.S. for burden of proof); CJI 4th, 25:2 (Elements of Liability--First Party Claim Cases). Thus, the standard is not simple negligence. A first-party claimant who "asserts that an insurer has failed to pay a claim in bad faith must establish that the insurer acted unreasonably and with knowledge of or reckless disregard for the fact that no reasonable basis existed for denying the claim." Travelers Ins. Co. v. Savio, 706 P.2d 1258, 1274 (Colo. 1985) (worker's compensation claim). See also American Family Mut. Ins. Co. v. Allen, 102 P.3d 333, 342 (Colo. banc 2004) (applying same test to insurer's investigation of a PIP claim). In addition to compensatory damages for economic and non-economic losses directly caused by such conduct, punitive damages are available under Colorado statutes, where appropriate, to punish the insurer and deter wrongful conduct by other insurers. Goodson, 89 P.3d at 415. To recover punitive

damages, the insured must establish beyond a reasonable doubt that the insurer's breach was accompanied by circumstance of fraud, malice, or willful or wanton conduct. Id. (citing §§13-21-102(1)(a) & 13-25-127(2), 5 C.R.S.). The No-Fault Act provided for the treble damages Plaintiff claims in her Fourth Cause of Action:

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"In addition, in the event of willful and wanton failure of the insurer to pay such benefits when due, the insurer shall pay to the insured, in addition to any other amounts due to the insured under this subsection, an amount which is three times the amount of unpaid benefits recovered in the proceeding." §10-4-708(1.8). This standard for willful and wanton breach of contract is

essentially the same as the standard for proof of an insurance bad faith claim. A willful and wanton failure to pay benefits when due is established when "an insurer acts without justification and in disregard of Plaintiff's rights." Burgess v. Mid-Century Ins. Co., 841 P.2d 325, 329 (Colo. App. 1992). See also Pham v. State Farm Mut. Auto. Ins. Co., 70 P.3d 567, 572 (Colo. App. 2003). This

standard was adopted by the Colorado Supreme Court in Dale v. Guaranty Nat'l Ins. Co., 948 P.2d 545, 551 (Colo. 1997). Willful and wanton conduct under the No-Fault Act is a subset of insurance bad faith; and proof of such conduct also constitutes proof of bad faith, i.e., that "the insurer knowingly or recklessly acted unreasonably toward its insured." Id. 2. Prupac's conduct in not paying extended PIP benefits was not in bad faith or willful or wanton because Prupac's decision to pay Plaintiff basic rather than extended PIP benefits was grounded in reasonable legal positions. Where, as here, the rationale for not paying benefits is a legal argument, the application of these tests of bad faith and willful and wanton conduct is a matter of law to be determined by the court. "Further, we consider the question of the reasonableness of such action [denying coverage] to be one for the court and not one for lay fact finders. To submit such a question to the jury would not only require the jurors to assess the reasonableness of a legal argument, but it would require the parties, as they were required to do here, to provide the jurors with legal advice through the guise of expert testimony. This, itself, is improper."

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Tozer v. Scott Wetzel Services, Inc., 883 P.2d 496, 499 (Colo. App. 1994) (reversing judgment finding breach of duty of good faith). See also Brandon v. Sterling Colorado Beef Co., 827 P.2d 559, 560 (Colo. App. 1991) (holding that, as a matter of law, insurer's appeal of unfavorable coverage decision did not constitute bad faith). Moreover, where there is no genuine factual dispute,

summary judgment is appropriate on the issue of reasonableness of an insurer's legal position that there is no coverage. State Farm Mut. Ins. Co. v. Lee, 353 F. Supp. 2d 1119, 1129 (D. Colo. 2005) (granting insurer's motion for partial summary judgment as to counterclaims for willful and wanton breach of contract and bad faith denial of insurance coverage). Fincher claims that Prupac willfully and wantonly refused to reform its policy and notify its insureds of their right to increased coverages, despite knowledge of the Thompson and Brennan cases. She has not and cannot produce evidence contesting the reasonableness of Prupac's argument that Brennan was not to be applied retroactively, and that Thompson was distinguishable because Prupac's named insured specifically rejected extended coverages available under the Prupac policy. As such, she also cannot prove that Prupac acted unreasonably and with knowledge of or reckless disregard for the fact that no reasonable basis existed for denying her claim. An insurer may challenge a claim that is "fairly debatable" and will be found to have acted in bad faith in doing so "only if it has intentionally denied (or failed to process or pay) a claim without a reasonable basis." Brandon, 827 P.2d at 561. A debatable interpretation of a complicated insurance statute, even if

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incorrect, is reasonable and cannot be the basis for a bad faith or willful and wanton breach claim. Pham, 70 P.3d at 572-573 (affirming summary judgment dismissing such claims). An insurer's assertion of a reasonable position in a lawsuit concerning the policy and benefits due under the policy precludes assertion of an insurance bad faith claim. See Hill, 2006 U.S. Dist. LEXIS 4635 at *24. An insurer's appeal of a decision holding that there is coverage is

unreasonable only if it has no rational basis in law or fact. Tozer, 883 P.2d at 499. Failure of an insurer to prevail in court on a position justifying a denial of coverage is not an indication that the position was unreasonable, in bad faith, or willful and wanton. "Here, as stated above, the Court has already found that State Farm's position, although ultimately found contrary to the intended purpose of the statute, was not an unreasonable position to advance in response to Defendant Lee's claim for coverage based on a stacking of the Lee and Maggard policy." State Farm Mut. Ins. Co. v. Lee, 353 F. Supp. 2d at 1129 (granting summary judgment on those claims). A position is not unreasonable unless it runs counter to clearly established precedent. Id. ("[The insurer's] conduct as to this claim in the absence of clear precedent was not unreasonable."). Prupac's argument that Plaintiff was not entitled to extended PIP benefits because Brennan was not to be applied retroactively clearly was reasonable under this standard. The Brennan opinion itself appeared to so hold, stating that, given the lack of clarity in the law, "it is not inappropriate to apply such interpretation prospectively." Brennan, 961 P.2d at 556. Chief Judge Babcock

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had so held previously in the Clark case at the time Prupac filed its motion. The existence of case authority supporting a denial of coverage demonstrates that there is a reasonable and rational basis for the position. Tozer, 883 P.2d at 499 (supporting opinion of Colorado Appellate Division prior to disapproval by Colorado Supreme Court). In addition, this Court adopted the non-retroactivity argument and the Clark precedent in granting Prupac's motion for summary judgment in this case. If it is not bad faith or willful and wanton conduct to appeal an unfavorable decision, even unsuccessfully, where there are good faith grounds for the appeal, a fortiori, it cannot be bad faith or willful and wanton conduct to win the argument in the first instance, as Prupac did here, when this Court granted summary judgment against Fincher on all claims. Prupac's argument that Thompson was distinguishable from this case also was reasonable. The insured car rental customer in Thompson was not offered any extended PIP coverages whatsoever; and the insurer relied entirely on an affidavit from the customer claiming, after the fact, that he would not have purchased extended PIP coverage if it had been offered. The court rejected that defense as too speculative. In this case, in contrast, Prupac did offer Bekeshka extended PIP coverage (although the written application contained a $150,000 rather than a $200,000 cap);5 and the Bekeshkas specifically declined all extended benefits because they were retired and on a fixed income, and did not want to pay a higher premium than necessary. Moreover, they had no need for extended wage loss coverage since neither was working. Since they had

5

Because of faded memories, it is unclear whether Prupac's agent orally offered Bekeshka the $200,000 cap as Prupac's agents had been instructed to do.

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adequate health insurance, they did not want to spend money for unnecessary, duplicate medical coverages. Exhibit A-8 (Affidavit of Anthony Bekeshka). Prupac's argument distinguishing the cases was a reasonable one, and Fincher has produced no evidence that Prupac knew or was reckless in not knowing otherwise. As a matter of law, Prupac's conduct could not have been willful and wanton or in bad faith. Its decision not to pay to Fincher extended PIP benefits was reasonable and consistent with Colorado case law, as further evidenced by this Court's grant of summary judgment on those same legal grounds, dismissing Plaintiff's claims in their entirety, on June 10, 2002. IV. CONCLUSION For the reasons set forth above, Prupac's motion for summary judgment should be granted. There is no genuine factual dispute. Plaintiff's claims for extended benefits are moot. Plaintiff is not entitled to tort or enhanced damages, as a matter of law, because Prupac acted reasonably in relying initially on legal arguments that Plaintiff was not entitled to extended PIP benefits, and then in paying Plaintiff the maximum amount of benefits to which she was entitled under the Tenth Circuit opinion and this Court's reformation order concerning the statutory cap.

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Respectfully submitted this 9th day of March, 2007.

Campbell, Latiolais & Ruebel, P.C. By: __s/Clifton J. Latiolais, Jr._________ Clifton J. Latiolais, Jr., #13765 825 Logan Street Denver, CO 80203-3114 (303) 861-7760 (phone) (303) 861-7767 (fax)

Bryan Cave LLP Bruce C. Oetter 211 N. Broadway, Suite 3600 St. Louis, Missouri 63102-2750 (314) 259-2000 (phone) (314) 259-2020 (fax)

Attorneys for Defendant

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CERTIFICATE OF SERVICE

I hereby certify that on this 9th day of March, 2007, a true and correct copy of the foregoing MEMORANDUM IN SUPPORT OF DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT was filed and served electronically via CM/ECF to the following: L. Dan Rector, #7568 Franklin D. Azar & Associates, P. C. 5536 Library Lane Colorado Springs, CO 80918 (719) 527-8000 Robert B. Carey, #1717 Leif Garrison, #14394 Steve W. Berman, c/o The Carey Law Firm 2301 East Pikes Peak Avenue Colorado Springs, CO 80909 Courtesy copy to: Magistrate Judge Michael J. Watanabe United States District Court U.S. Courthouse, Room C-337 1929 Stout Street Denver, CO 80294

/s/ DeniseL.Albares______

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