Free Motion for Partial Summary Judgment - District Court of Colorado - Colorado

Case 1:00-cv-02098-REB-MJW

Document 211

Filed 03/09/2007

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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.

DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

Prudential Property & Casualty Insurance Company ("Prupac") asks the Court to enter summary judgment in its favor on the three remaining claims of Plaintiff Kelly Fincher individually, except her request for attorneys' fees, in her Second, Third, and Fourth Causes of Action for failure to pay extended PIP benefits owed: (1) breach of contract, (2) bad faith breach of a duty of good faith and fair dealing, and (3) willful and wanton breach of contract. As grounds for this motion, Prudential states as follows: 1. Prupac is entitled to summary judgment on Plaintiff's Second

Cause of Action, seeking payment of extended PIP benefits as compensatory breach of contract damages, because such benefits, including statutory interest, have been paid in full and the claim is now moot.

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Case 1:00-cv-02098-REB-MJW

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2.

Prupac is entitled to summary judgment on Plaintiff's Third and

Fourth Causes of Action, seeking damages for bad faith and willful and wanton conduct, because Prupac's decision to pay Plaintiff basic rather than extended PIP benefits was grounded in reasonable legal positions. 3. There is no genuine dispute regarding any material issue of fact.

This Court has established the maximum due for all PIP benefits at $200,000. There is no dispute regarding (1) the amount of Prupac's payment of basic and extended benefits to Plaintiff, and (2), facts relating to the reasonableness of Prupac's initial payment of basic rather than extended PIP benefits. For the foregoing reasons and for the reasons more fully explained in its supporting brief, Prupac asks the Court to grant its motion for partial summary judgment against Plaintiff, individually, and dismiss the Second, Third, and Fourth Causes of Action, leaving for resolution only Plaintiff's request for attorneys' fees and the pending motion for class certification. 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 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/ Denise L. Albares______