Free Motion to Supplement - District Court of Colorado - Colorado

Case 1:04-cv-00761-WDM-BNB

Document 80

Filed 10/26/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-WM-0761 (BNB)

DEAN COLBY, Plaintiff, v. PROGRESSIVE CASUALTY INSURANCE COMPANY, an Ohio Corporation Defendant.

MOTION TO SUPPLEMENT MOTION FOR SUMMARY JUDGMENT PURSUANT TO D.C.COLO.LCivR 7.1(E)

Defendant Progressive Casualty Insurance Company (hereinafter referred to as AProgressive@), by and through its attorneys, Seaman, Giometti & Murphy, P.C., hereby submits its Motion to Supplement Motion for Summary Judgment Pursuant to D.C.COLO.LCivR 7.1(E), as follows: D.C. COLO. L. CIV. R. 7.1(A) CERTIFICATION Attorney Christopher S. Essick of the undersigned=s office conferred with Plaintiff=s counsel=s office on October 26, 2005, who indicated that counsel for Plaintiff, Robert Carey, objects to the Motion filed herein. 1. Pursuant to D.C.COLO.LCivR 7.1(E), supplemental authority for a motion

must be filed with the court at least five days before the scheduled motions hearing. On August 16, 2004, Progressive filed a Motion for Summary Judgment in the above referenced case. The motion is not currently scheduled for a hearing before the court.

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Therefore, supplemental authority may be received by the court. 2. One of Progressive=s arguments in its motion for summary judgment is

that the plaintiff failed to file his claims within the applicable statutes of limitation. On August 17, 2005, the United State Court of Appeals, Tenth Circuit, published its opinion in Nelson v. State Farm Mut. Auto. Ins. Co., 419 F.3d 1117 (10th Cir. 2005). In Nelson, the plaintiff/insured brought suit against State Farm for reformation and breach of contract, asserting that he was entitled to extended wage-loss personal injury protection (PIP) benefits under the former Colorado Auto Accident Reparations Act (CAARA), Colo. Rev. Stat. '' 10-4-701 to -726 (2000). 3. The Nelson court held that the three year statute of limitations for CAARA,

found at Colo. Rev. Stat. Ann. ' 13-80-101(1)(j), applied to the plaintiff=s claim for reformation of the insurance policy to include PIP wage-loss benefits because the claim, although equitable, clearly Aarose from@ rights exclusively provided under CAARA. Id. at 1121. 4. Further, the court held that the plaintiff=s claim for enhanced PIP wage-

loss benefits accrued, at the latest, on the last date that he was paid basic wage-loss benefits under the policy, as he should have known by that date that State Farm had allegedly violated CAARA by not offering extended PIP benefits. Id. 5. As a result, the Nelson court denied the plaintiff the opportunity to reform

his State Farm insurance policy. 6. In the present case, Mr. Colby seeks reformation of the Progressive policy

to include extended wage-loss and medical rehabilitation PIP benefits without limit.

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However, Mr. Colby=s PIP benefits were exhausted at some point in 1993 or 1994. Because Mr. Colby failed to bring suit within three years of the time when his PIP benefits were exhausted, under Nelson he is barred from bringing suit on the wage-loss issue and, if the court decides to extend the Nelson line of reasoning to medical rehabilitation benefits, to Mr. Colby=s entire claim. WHEREFORE, Progressive respectfully asks the Court to consider the case of Nelson v. State Farm Mut. Auto. Ins. Co., 419 F.3d 1117 (10th Cir. 2005), when issuing its Order on Progressive=s Motion for Summary Judgment. Respectfully submitted this 26th day of October, 2005.

/S/ Jon A. Halaby _______________________________ Gregory R. Giometti, Esq. Jon A. Halaby, Esq. Seaman, Giometti & Murphy, P.C. 7730 E. Belleview Avenue, Suite 102 Greenwood Village, CO 80111 Telephone: (303) 771-2111 Fax: (303) 796-0899 E-mail: [email protected] Attorneys for Defendant Progressive Mountain Insurance Company

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CERTIFICATE OF MAILING I hereby certify that on this 26th day of October, 2005, a true and correct copy of the above and foregoing MOTION TO SUPPLEMENT MOTION FOR SUMMARY JUDGMENT PURSUANT TO D.C.COLO.LCivR 7.1(E) was placed in the United States mail, postage prepaid, addressed to:

nue 09 s/ Sherry J. Cook