Free Pretrial Order - District Court of Colorado - Colorado

Case 1:04-cv-00591-MSK-BNB

Document 142

Filed 06/30/2005

Page 1 of 27

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00591-MSK-BNB

MELANIE LAND, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, an Illinois Corporation, and PROGRESSIVE SPECIALTY INSURANCE COMPANY, an Ohio Corporation, Defendants.

FINAL PRETRIAL ORDER

1. DATE AND APPEARANCES. A Final Pretrial Conference was held with Magistrate Judge Boyd N. Boland on June 30, 2005. Appearing for Plaintiff Melanie Land (" Plaintiff" is Melissa J. Winthers of Fleishman & ) Shapiro P.C., 1600 Broadway, Suite 2600, Denver, CO 80202, telephone number (303) 8611000. Appearing for Defendant State Farm Mutual Automobile Insurance Company (" State Farm" is Jonathan A. Cross and David Canter of Cross & Liechty, P.C., 400 S. Colorado Blvd., ) Suite 900, Denver, CO 80246, telephone number (303) 333-4122. 2. JURISDICTION. The amount in controversy in this action, exclusive of interests and costs, exceeds $75,000 (Seventy-Five Thousand Dollars). Jurisdiction under this matter is based upon diversity of citizenship under 28 U.S.C. §1332. 1

Case 1:04-cv-00591-MSK-BNB

Document 142

Filed 06/30/2005

Page 2 of 27

3. CLAIMS AND DEFENSES. Claim I: Negligence of Jacob Swift (Underinsured Motorist) Plaintiff has the burden of proof on all the elements. Elements: 1) Duty (Jacob Swift had a duty to operate his motor vehicle with reasonable care 1. The parties stipulate that this element is satisfied 2) Breach (Jacob Swift did not operate his motor vehicle with reasonable care) 1. The parties stipulate that on November 17, 2001, the vehicle which Jacob Swift was driving struck the rear of Jason Chamberlain' vehicle. s 2. The parties stipulate that Plaintiff Melanie Land was a passenger in Mr. Chamberlain' s vehicle. 3. Mr. Chamberlain' vehicle was at a complete stop at a red traffic light when Mr. Swift s rear-ended his vehicle. (Testimony of Plaintiff, Jason Chamberlain, Lisa Lindgren, Reed Sellers, Dan Haigler, Officer Okada. Exhibits 18 and 21.) 4. Mr. Swift was speeding when he rear-ended Chamberlain' vehicle. (Testimony of s Officer Okada. Exhibit 18 and 19.) 3) Cause and Harm (Mr. Swift' negligence caused Plaintiff' injuries, damages and s s losses.) 1. Plaintiff Melanie Land suffered severe and permanent injuries, damages and losses including: past, present, and future medical, hospital, pharmaceutical, rehabilitation and

S:\Bnbsec\2004\PTO - 2004\0591revised.wpd

2

Case 1:04-cv-00591-MSK-BNB

Document 142

Filed 06/30/2005

Page 3 of 27

related expenses; past, present and future emotional distress; general neurological and musculoskeletal injuries including but not limited to: i) ii) iii) iv) v) vi) vii) viii) Cervical instability and related pain Thoracic disc injury Lumbar injury Sacroiliac injury Migraine headaches Sleep difficulties Visual difficulties Concentration difficulties

Plaintiff also suffered temporary and permanent physical impairment, impairment of the enjoyment and quality of life, and pain and suffering. (Testimony of Christopher J. Centeno, M.D., Edo Zystra, M.S.P.T., Plaintiff, Bob Cosper, Mark Decker, Cheryl Land, Barry Land, Eric Land, Laura Piggott, Lisa Lindgren, Dan Haigler, Jason Chamberlain, and Reed Sellers. Exhibits 1-12; 17-19, 21-49). Claim II: Negligence per se of Jacob Swift (Underinsured Motorist) Plaintiff has the burden of proof on all the elements. Elements: 1) Existence of a Safety Statute

S:\Bnbsec\2004\PTO - 2004\0591revised.wpd

3

Case 1:04-cv-00591-MSK-BNB

Document 142

Filed 06/30/2005

Page 4 of 27

1. The parties stipulate that Colorado Revised Statutes 42-4-1402 (Careless driving) and Colorado Revised Statute 42-4-1101 (Speed limits) were in effect at the time of the collision between Swift and Chamberlain. 2. The parties stipulate that a violation of a statute regulating the use of roadways is negligence as a matter of law. 2) Violation of safety statute. 1. Mr. Swift acted in violation of the above statutes. (Testimony of Officer Okada,

Plaintiff, Lisa Lindgren, Jason Chamberlain, Reed Sellers, Dan Haigler. Exhibits: 18, 69 and 70.) Claim III: Underinsured Motorist Benefits ­State Farm Plaintiff has the burden of proof on all the elements. Elements: 1) Swift was an underinsured motorist 1. The parties stipulate that Swift was an underinsured motorist under the applicable State Farm policy. 2) Plaintiff is afforded underinsured motorist coverage under a policy of insurance. 1. The parties stipulate that Plaintiff was provided underinsured motorist coverage under the State Farm automobile policy of insurance issued by State Farm to Chamberlain' s mother, Carol Philip. 3) Plaintiff is entitled to compensation for her injuries, damages, or losses in an amount to be determined by the jury, up to the State Farm policy limit:
S:\Bnbsec\2004\PTO - 2004\0591revised.wpd

4

Case 1:04-cv-00591-MSK-BNB

Document 142

Filed 06/30/2005

Page 5 of 27

1. The parties stipulate that to the extent that the jury finds that Plaintiff' injuries, damages, s and losses as described above entitle her to damages, she is entitled to compensation for those damages in an amount to be determined by the jury, up to the contract amount of $100,000. [However, the parties dispute the amount State Farm is legally entitled to offset from a jury verdict favor of Plaintiff.] 2. Plaintiff claims that the amount of the legal offset is $15,000. (Testimony of Mike Hodges, Esq.) Claim IV: Bad Faith Breach of Insurance Contract ­State Farm Plaintiff has the burden of proof on all the elements. Elements: 1) Plaintiff had injuries damages, or losses 1. As a result of having to file a lawsuit to recover benefits which she was due, Plaintiff has sustained losses, including but not limited to: i) ii) Being forced to incur additional costs of litigation; Enduring the emotional trauma, aggravation, embarrassment and humiliation of being unnecessarily involved in a lawsuit with her insurance company; iii) Being deprived of the UIM benefits which should have been paid. (Testimony of Plaintiff, Cheryl Land, Barry Land, and Eric Land.) 2) Defendant acted unreasonably in denying payment of Plaintiff' claim: s

S:\Bnbsec\2004\PTO - 2004\0591revised.wpd

5

Case 1:04-cv-00591-MSK-BNB

Document 142

Filed 06/30/2005

Page 6 of 27

1. The parties stipulate that Plaintiff submitted her demand for underinsured motorist benefits in the amount of $100,000 to State Farm, less State Farm' legal offset, on or s about January 29, 2004. 2. The parties stipulate that on or about February 20, 2004, State Farm offered Plaintiff $3,000 ($33,000 less State Farm' claimed offset of $30,000) to settle her underinsured s motorist claim against State Farm. 3. Defendant State Farm' low-ball offer was made despite the overwhelming evidence of s serious and permanent to Plaintiff. (Testimony of Mike Hodges, Esq. and crossexamination of Steve Hassoldt State Farm Team Manager. Exhibits 21 and 63.) 3) Defendant State Farm knew or recklessly disregarded the fact that its position was unreasonable. (Testimony of Mike Hodges, Esq. and cross-examination of Steve Hassoldt. Exhibits 21, 64 and 68.) 4) State Farm' unreasonable conduct was a cause of the Plaintiff' injuries, damages, s s or losses. (Testimony of Plaintiff, Cheryl Land, Barry Land, Eric Land and Mike Hodges.)

B.

NARRATIVE SUMMARY OF DEFENDANT STATE FARM' DEFENSES. S 1. On November 17, 2001, Plaintiff was riding as a rear-seated passenger in a 1987

Ford Mustang being operated by Jason Chamberlain (" Chamberlain" Chamberlain was insured ). under an automobile liability policy of insurance issued by State Farm. The State Farm policy provided, among other coverages, underinsured motorist (" UIM" benefits in the amount of )

S:\Bnbsec\2004\PTO - 2004\0591revised.wpd

6

Case 1:04-cv-00591-MSK-BNB

Document 142

Filed 06/30/2005

Page 7 of 27

$100,000 per person. As a passenger in the Chamberlain vehicle, Plaintiff is afforded coverage under the State Farm policy of insurance. 2. Plaintiff claims that she suffered injuries and damages when the Mustang in

which she was riding was struck in the rear by a Chrysler LeBaron being operated by Jacob Swift (" Swift" Plaintiff entered into a settlement of her claims for personal injuries and ). damages with Swift for the limits of Swift' policy of insurance, $30,000. Thereafter, Plaintiff s presented a demand for UIM benefits to, among others, State Farm. 3. With respect to Plaintiff' claim for relief for UIM benefits, State Farm disputes s

the nature and extent of Plaintiff' claimed injuries and damages. Additionally, State Farm s asserts that a) the negligence of Chamberlain may have caused or contributed to the cause of the subject accident; and b) Plaintiff received medical evaluation and treatment that was not reasonable, necessary and related to injuries allegedly sustained in the subject accident. 4. With respect to Plaintiff' claim for relief for bad faith, State Farm contends that s

it acted reasonably and in good faith in its investigation and evaluation of Plaintiff' claim for s UIM benefits, and that State Farm did not violate the Colorado Unfair Claims Settlement Practices Act. Moreover, State Farm asserts that it acted reasonably and in compliance with appropriate claims practices in its investigation, evaluation, and offer of settlement for Plaintiff' s claim for UIM benefits. Simply because Plaintiff and State Farm disagree on the value of Plaintiff' claim for UIM benefits does not indicate that State Farm acted in bad faith. State s Farm contends that a reasonably debatable value of a claim does not constitute bad faith.

S:\Bnbsec\2004\PTO - 2004\0591revised.wpd

7

Case 1:04-cv-00591-MSK-BNB

Document 142

Filed 06/30/2005

Page 8 of 27

Claim III: Underinsured Motorist Benefits ­State Farm Defenses and Affirmative Defenses to Claim III: State Farm has the burden of proof on all elements of affirmative defenses. 1) Plaintiff' injuries, if any, were the result of pre-existing conditions unrelated to the s subject automobile accident. 1. Plaintiff suffered injuries to her knees prior to the subject accident. (Testimony of Plaintiff, Cheryl Land, Barry Land, Christopher Centeno, M.D., Rachel Basse, M.D., Charles Seibert, M.D.; Exhibit 31 and 34.) (Note: Plaintiff has agreed to waive her claim for damages related to any alleged knee injuries.) 2) Plaintiff' injuries, if any, were the result of incidents occurring after the November s 17, 2001 motor vehicle accident, and that such injuries and/or conditions are wholly unrelated to the subject automobile accident. 1. Plaintiff suffered new injuries while playing softball in May 2002, and September 2002. (Testimony of Rachel Basse, M.D., Charles Seibert, M.D., Exhibits 25 through 49.) 3) The nature and extent of Plaintiff' claimed injuries and damages are not related to s the subject accident. 1. Plaintiff suffered mild to moderate soft-tissue injuries in the subject accident. The

injuries that Plaintiff now claims she is experiencing, including vision loss and difficulty concentrating, are not related to the subject accident. (Testimony of Rachel Basse, M.D., Charles Seibert, M.D., W. Bruce Wilson, M.D., Exhibits 25 through 49.)

S:\Bnbsec\2004\PTO - 2004\0591revised.wpd

8

Case 1:04-cv-00591-MSK-BNB

Document 142

Filed 06/30/2005

Page 9 of 27

4)

Plaintiff received medical evaluation and treatment that was not reasonable, necessary and related to injuries allegedly sustained in the subject accident. 1. Plaintiff suffered mild to moderate soft-tissue injuries in the subject accident, which should have resolved within six (6) months following the subject accident. The treatment Plaintiff has received from approximately six (6) months following the accident through the present time, is not reasonable, necessary and related to the injuries that may have been sustained in the subject accident. Additionally, the treatment that Plaintiff has received has provided no lasting benefit, and thus, is not reasonable. (Testimony of Rachel Basse, M.D., Charles Seibert, M.D., W. Bruce Wilson, M.D., Exhibits 25 through 49.)

5)

Chamberlain' conduct on November 17, 2001 may have caused, or contributed to s the cause, of the subject accident. (Affirmative Defense.) 1. Chamberlain was negligent. i) Chamberlain, and/or the occupants of his vehicle, threw an object, believed to be a water balloon at the occupants of a vehicle being operated by Swift. When Swift gave chase to the Chamberlain vehicle, Chamberlain stopped short for no apparent reason. Swift tried to avoid the accident, but was unable to do so. (Testimony of Jason Swift, David Estrada and Raul Calahorra; Exhibits 18, 85, 86 and 87.) 2. Chamberlain' negligence was a cause of Plaintiff' claimed injuries, damages or losses. s s i) Chamberlain, and/or the occupants of his vehicle, threw an object, believed to be a water balloon at the occupants of a vehicle being operated by Swift.

S:\Bnbsec\2004\PTO - 2004\0591revised.wpd

9

Case 1:04-cv-00591-MSK-BNB

Document 142

Filed 06/30/2005

Page 10 of 27

When Swift gave chase to the Chamberlain vehicle, Chamberlain stopped short for no apparent reason. Swift tried to avoid the accident, but was unable to do so. Plaintiff has alleged that she sustained personal injuries and

damages when the Swift vehicle collided with the rear of the Chamberlain vehicle. (Testimony of Plaintiff, Jason Swift, David Estrada and Raul

Calahorra; Exhibits 18, 85, 86 and 87.) 6) Swift acted reasonably when faced with a sudden emergency, to wit, the stopping of Chamberlain' Ford Mustang for no apparent reason. s 1. The sudden emergency instruction is properly given when a party was confronted with a sudden or unexpected emergency not of that party' own making. s i) Chamberlain, and/or the occupants of his vehicle, threw an object, believed to be a water balloon at the occupants of a vehicle being operated by Swift. When Swift gave chase to the Chamberlain vehicle, Chamberlain stopped short for no apparent reason. The traffic signal governing Chamberlain' direction of traffic was greens phased. Chamberlain stopped his vehicle well short of the intersection. Swift tried to avoid the accident, but because of Chamberlain' sudden and unexpected stop, he was s unable to do so. (Testimony of Jason Swift, David Estrada and Raul Calahorra; Exhibits 18, 85, 86 and 87.) 7) Plaintiff' damages, if any, were the proximate result of Plaintiff's comparative s negligence and Plaintiff's claims are, therefore, barred in whole or in part pursuant to C.R.S. § 13-21-111.
S:\Bnbsec\2004\PTO - 2004\0591revised.wpd

10

Case 1:04-cv-00591-MSK-BNB

Document 142

Filed 06/30/2005

Page 11 of 27

1. Plaintiff had injuries, damages, or losses. (Testimony of Plaintiff.) 2. Chamberlain was negligent. i) Chamberlain, and/or the occupants of his vehicle, threw an object, believed to be a water balloon at the occupants of a vehicle being operated by Swift. When Swift gave chase to the Chamberlain vehicle, Chamberlain stopped short for no apparent reason. The traffic signal governing Chamberlain' direction of traffic was greens phased. Chamberlain stopped his vehicle well short of the intersection. Swift tried to avoid the accident, but because of Chamberlain' sudden and unexpected stop, he was s unable to do so. (Testimony of Jason Swift, David Estrada and Raul Calahorra; Exhibits 18, 85, 86 and 87.) 3. Chamberlain' negligence was a cause of Plaintiff' injuries, damages or losses. s s i) Chamberlain, and/or the occupants of his vehicle, threw an object, believed to be a water balloon at the occupants of a vehicle being operated by Swift. When Swift gave chase to the Chamberlain vehicle, Chamberlain stopped short for no apparent reason. Swift tried to avoid the accident, but was unable to do so. Plaintiff has alleged that she sustained personal injuries and damages when the Swift vehicle collided with the rear of the Chamberlain vehicle. (Testimony of Plaintiff, Jason Swift, David Estrada and Raul Calahorra; Exhibits 18, 85, 86 and 87.) 8) Plaintiff' damages, if any, were the proximate result of Plaintiff's comparative s negligence and Plaintiff's claims are, therefore, barred in whole or in part pursuant to C.R.S. § 13-21-111.
S:\Bnbsec\2004\PTO - 2004\0591revised.wpd

11

Case 1:04-cv-00591-MSK-BNB

Document 142

Filed 06/30/2005

Page 12 of 27

1. Plaintiff was negligent. i) Chamberlain, and/or the occupants of his vehicle ­ including Plaintiff Melanie Land -- threw an object, believed to be a water balloon at the occupants of a vehicle being operated by Swift. The occupants of the Swift vehicle observed a girl in the rear of the Chamberlain vehicle laughing just as the Chamberlain vehicle drove off. When Swift gave chase to the Chamberlain vehicle, Chamberlain stopped short for no apparent reason. Swift tried to avoid the accident, but was unable to do so.

(Testimony of Jason Swift, David Estrada and Raul Calahorra; Exhibits 18, 85, 86 and 87.) 2. Plaintiff' negligence was a cause of Plaintiff' own claimed injuries, damages, or losses. s s i) Swift tried to avoid the accident, but was unable to do so. Plaintiff has alleged that she sustained personal injuries and damages when the Swift vehicle collided with the rear of the Chamberlain vehicle. (Testimony of Plaintiff, Jason Swift, David Estrada and Raul Calahorra; Exhibits 18, 85, 86 and 87.) 9) Plaintiff' damages, if any, were the proximate result of Plaintiff's comparative s negligence and Plaintiff's claims are, therefore, barred in whole or in part pursuant to C.R.S. § 13-21-111. 1. C.R.S. §13-21-111 provides, in pertinent part, " Contributory negligence shall not bar recovery in any action by any person . . . to recover damages for negligence resulting in . . . in injury to person . . ., if such negligence was not as great as the negligence of the
S:\Bnbsec\2004\PTO - 2004\0591revised.wpd

12

Case 1:04-cv-00591-MSK-BNB

Document 142

Filed 06/30/2005

Page 13 of 27

person against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person for whose injury [or] damage . . . recovery is made. i) Chamberlain, and/or the occupants of his vehicle ­ including Plaintiff Melanie Land -- threw an object, believed to be a water balloon at the occupants of a vehicle being operated by Swift. The occupants of the Swift vehicle observed a girl in the rear of the Chamberlain vehicle laughing just as the Chamberlain vehicle drove off. When Swift gave chase to the Chamberlain vehicle, Chamberlain stopped short for no apparent reason. Swift tried to avoid the accident, but was unable to do so.

(Testimony of Jason Swift, David Estrada and Raul Calahorra; Exhibits 18, 85, 86 and 87.) 10) Plaintiff has failed to take reasonable steps to mitigate her damages. 1. The failure to mitigate damages refers to the injured party's failure to take such steps as are reasonable under the circumstances to minimize the resulting damages. i) Following the subject accident, Plaintiff continued to play women' softball at s both the high school and competitive levels. On at least two different occasions while playing softball (May 2002 and September 2002), Plaintiff sustained injuries. (Testimony of Plaintiff, Cheryl Land, Barry Land, Christopher Centeno, M.D., Rachel Basse, M.D., Matthew Mulligan, Exhibits 31 and 34.) ii) Plaintiff has been receiving treatment from Christopher Centeno, M.D., since December 2001.
S:\Bnbsec\2004\PTO - 2004\0591revised.wpd

Plaintiff' physical condition and complaints of injury have s

13

Case 1:04-cv-00591-MSK-BNB

Document 142

Filed 06/30/2005

Page 14 of 27

increased while under Dr. Centeno' care. Notwithstanding lack of improvement, s Plaintiff continues to receive treatment from Dr. Centeno at great expense. Notwithstanding Plaintiff' lack of improvement, Dr. Centeno has not adjusted the s treatment plan. (Testimony of Plaintiff, Cheryl Land, Barry Land, Christopher

Centeno, M.D., Rachel Basse, M.D., W. Bruce Wilson, M.D., Exhibits 25 through 49.) 11) The damages sought are barred or limited by the provisions of C.R.S. § 13-21-102.5 (limitations on damages for non-economic loss or injury). 1. This defense presents a question of law. Of note, C.R.S. § 13-21-102.5(3)(a) provides: In any civil action other than medical malpractice actions in which damages for noneconomic loss or injury may be awarded, the total of such damages shall not exceed the sum of two hundred fifty thousand dollars, unless the court finds justification by clear and convincing evidence therefor. In no case shall the amount of non-economic loss or injury damages exceed five hundred thousand dollars. i) Plaintiff' reasonable damages, if any, are approximately $33,000. Plaintiff has s already received $60,000 in compensation for such injuries ($30,000 from Swift, and $30,000 from Progressive). (Testimony of Steve Hassoldt, Dale Crawford, Exhibits 21.) 12) The damages sought are barred or limited by the collateral source rule of C.R.S. § 13-21-111.6.

S:\Bnbsec\2004\PTO - 2004\0591revised.wpd

14

Case 1:04-cv-00591-MSK-BNB

Document 142

Filed 06/30/2005

Page 15 of 27

1. This defense presents a question of law. Of note, C.R.S. § 13-21-111.6 provides, in pertinent part, " any action by any person . . . to recover damages for a tort resulting in In . . . injury to person . . ., the court, after the finder of fact has returned its verdict stating the amount of damages to be awarded, shall reduce the amount of the verdict by the amount by which such person . . . has been or will be wholly or partially indemnified or compensated for his loss by any other person, corporation, insurance company, or fund in relation to the injury, damage . . . sustained; except that the verdict shall not be reduced by the amount by which such person . . . has been or will be wholly or partially indemnified or compensated by a benefit paid as a result of a contract entered into and paid for by or on behalf of such person. The court shall enter judgment on such reduced amount. i) Plaintiff' reasonable damages, if any, are approximately $33,000. Plaintiff has s already received $60,000 in compensation for such injuries ($30,000 from Swift, and $30,000 from Progressive). (Testimony of Steve Hassoldt, Dale Crawford, Exhibit 21.) 13) Plaintiff' claims for benefits are limited or barred pursuant to the provisions of the s insurance contract. 1. This defense presents a question of law. In her Prayer for Relief, Plaintiff requests, among other relief, expert witness fees and punitive damages. It is noted that " [a]n insurance policy is a contract, the interpretation of which we review de novo. In construing a policy, we look to the plain language and enforce the policy as written,
S:\Bnbsec\2004\PTO - 2004\0591revised.wpd

15

Case 1:04-cv-00591-MSK-BNB

Document 142

Filed 06/30/2005

Page 16 of 27

unless there is ambiguity in the policy language. When a policy provision is clear and unambiguous, courts should neither rewrite it nor limit its effect by a strained construction." State Farm Mutual Automobile Insurance Company v. Stein, 940 P.2d 384, 387 (Colo. 1997). 14) Plaintiff is not entitled, in her prayer for relief, to the type of relief requested, the categories of damages sought, or the costs claimed. 1. This defense presents a question of law. In her Prayer for Relief, Plaintiff requests, among other relief, expert witness fees and punitive damages. Should Plaintiff prevail on her claims for relief against State Farm, then State Farm will file an appropriate Motion upon receipt of Plaintiff' Bill of Costs. Further, Plaintiff' claims for relief do not give s s rise to a claim for punitive damages. 15) The damages sought are subject to a setoff of monies already received or receivable from other involved drivers or their insurers, and any advances of monies by State Farm as UM/UIM benefit payments. 1. This defense presents a question of law, and will be the subject of motions filed by the parties. The foregoing notwithstanding, Plaintiff has settled her claim against Swift for $30,000, and; Plaintiff has settled her claim against Progressive for $30,000. Pursuant to C.R.S. § 10-4-609(5), the maximum liability of State Farm under the UIM coverage will be the difference between the limit of UIM coverage ($100,000) and " amount paid to the [Plaintiff] by or for any person or organization who may be held legally liable for the

S:\Bnbsec\2004\PTO - 2004\0591revised.wpd

16

Case 1:04-cv-00591-MSK-BNB

Document 142

Filed 06/30/2005

Page 17 of 27

bodily injury." Thus, the maximum liability of State Farm under the UIM coverage is $40,000 ($100,000 less $30,000 [Swift] less $30,000 [Progressive]). 16) Any benefits owed are not the equivalent of any amount awarded by a trier of fact, if any, for personal injury damages claimed by Plaintiff. 1. This defense presents a question of law, and will be the subject of motions filed by the parties. The foregoing notwithstanding, Plaintiff has settled her claim against Swift for $30,000, and; Plaintiff has settled her claim against Progressive for $30,000. Pursuant to C.R.S. § 10-4-609(5), the maximum liability of State Farm under the UIM coverage will be the difference between the limit of UIM coverage ($100,000) and " amount paid to the [Plaintiff] by or for any person or organization who may be held legally liable for the bodily injury." Thus, the maximum liability of State Farm under the UIM coverage is $40,000 ($100,000 less $30,000 [Swift] less $30,000 [Progressive]). 17) Recovery by Plaintiff of UIM benefits is conditioned, calculated, capped, offset and payable by, upon, and pursuant to, the application of her policy of insurance with State Farm, including, without limitation, its policy limits. 1. This defense presents a question of law. Of note, the available UIM benefit is the difference between the amount recovered from the underinsured motorist and the damages sustained by the insured, not to exceed the underinsured motorist policy limit of $100,000. See, e.g., Freeman v. State Farm Mutual Insurance Company, 946 P.2d 584 (Colo.App. 1997), and C.R.S. § 10-4-609(5).

S:\Bnbsec\2004\PTO - 2004\0591revised.wpd

17

Case 1:04-cv-00591-MSK-BNB

Document 142

Filed 06/30/2005

Page 18 of 27

Claim IV: Bad Faith Breach of Insurance Contract ­State Farm Defenses and Affirmative Defenses to Claim IV: State Farm has the burden of proof on all elements of affirmative defenses. 1) The damages sought are barred or limited by the provisions of C.R.S. § 13-21-102.5 (limitations on damages for non-economic loss or injury). 1. This defense presents a question of law. Of note, C.R.S. § 13-21-102.5(3)(a) provides: In any civil action other than medical malpractice actions in which damages for noneconomic loss or injury may be awarded, the total of such damages shall not exceed the sum of two hundred fifty thousand dollars, unless the court finds justification by clear and convincing evidence therefor. In no case shall the amount of non-economic loss or injury damages exceed five hundred thousand dollars. i) Plaintiff' reasonable damages, if any, are approximately $33,000. Plaintiff has s already received $60,000 in compensation for such injuries ($30,000 from Swift, and $30,000 from Progressive). (Testimony of Steve Hassoldt, Dale Crawford, Exhibit 21.) 2) All actions of State Farm were reasonable, with justification and with due regard for any rights of Plaintiff in light of the facts and circumstances known to State Farm. 1. Upon receipt of Plaintiff' claim for UIM benefits, State Farm investigated the claim, s evaluated all known medical records and, based upon its analysis of many factors related to Plaintiff' claim, extended a reasonable offer of settlement. (Testimony of Steve s Hassoldt, Dale Crawford, Exhibit 21.)
S:\Bnbsec\2004\PTO - 2004\0591revised.wpd

18

Case 1:04-cv-00591-MSK-BNB

Document 142

Filed 06/30/2005

Page 19 of 27

3)

Plaintiff is not entitled, in her prayer for relief, to the type of relief requested, the categories of damages sought, or the costs claimed. 1. This defense presents a question of law. In her Prayer for Relief, Plaintiff requests, among other relief, expert witness fees and punitive damages. Should Plaintiff prevail on her claims for relief against State Farm, then State Farm will file an appropriate Motion upon receipt of Plaintiff' Bill of Costs. Further, Plaintiff' claims for relief do not give s s rise to a claim for punitive damages. 4. STIPULATIONS. The following facts are undisputed: 1. On or about November 17, 2001, the vehicle driven by Jacob Alan Swift struck

the rear of Jason Chamberlain' vehicle at Highway 121 and 94th Avenue in the City of s Westminster, County of Jefferson, State of Colorado. 2. On or about November 17, 2001, Melanie Land was a passenger in Jason

Chamberlain' vehicle. s 3. At the time of the subject accident, Jason Chamberlain and Carol Philip were

insured under an automobile liability policy of insurance issued by Defendant State Farm. 4. The State Farm automobile policy of insurance provided, among other coverages,

underinsured motorist (" UIM" benefits in the amount of $100,000 per person. ) 5. As a passenger in the insured vehicle, Plaintiff Melanie Land is afforded coverage

under the State Farm automobile policy of insurance.

S:\Bnbsec\2004\PTO - 2004\0591revised.wpd

19

Case 1:04-cv-00591-MSK-BNB

Document 142

Filed 06/30/2005

Page 20 of 27

5. PENDING MOTIONS. A. 1) Pending Motions. Plaintiff' Motion for Partial Summary Judgment on Liability was filed April 11, s

2005. Both Defendant Progressive and Defendant State Farm responded on May 2, 2005. Plaintiff filed a reply on May 20, 2005. 2) Party at Fault. The parties anticipate making the following motions prior to trial: B. 1) Anticipated Motions to Be Filed by State Farm. Defendant State Farm' Motion to Re-Designate Jason Chamberlain as a Nons

State Farms Motion for Permission to File Defendant State Farm' Motion for s

Summary Judgment on Plaintiff' Claim for Relief for Bad Faith. s 2) Defendant State Farm' Motion for Summary Judgment on Plaintiff' Claim for s s

Relief for Bad Faith. 3) Defendant State Farm' Motion to Strike Supplemental Rule 26(a)(2) Disclosure s

of Plaintiff' Expert, Richard Hodges. s 4) Defendant State Farm' Renewed Motion to Continue Trial. s C. 1) 2) 3) Anticipated Motions to Be Filed by Plaintiff.

Plaintiff' Motion in Limine to Preclude Testimony of Amy Varley. s Plaintiff' Motion in Limine to Preclude Testimony of Garth Allen. s Plaintiff' Motion in Limine to Preclude Testimony and/or Evidence from W. s

Bruce Wilson, M.D., on Issue of Traumatic Brain Injury.
S:\Bnbsec\2004\PTO - 2004\0591revised.wpd

20

Case 1:04-cv-00591-MSK-BNB

Document 142

Filed 06/30/2005

Page 21 of 27

4)

Plaintiff' Motion in Limine to Preclude Evidence of Payment of Medical s

Expenses by Health Care Insurer or Existence of Health Insurance. 5) Plaintiff' Motion in Limine to Preclude Evidence of Plaintiff' Settlement with s s

Defendant Progressive. 6) Negotiations. 7) Plaintiff' Motion in Limine for Permission to Admit Power Point Presentation of s Plaintiff' Motion in Limine to Preclude Evidence of Post-Litigation Settlement s

Christopher J. Centeno, M.D. 8) Plaintiff' Motion in Limine for Permission to Admit Channel 2 and 4 News s

Broadcasts Re: Centeno Treatments. 9) If Plaintiff' Motion for Partial Summary Judgment on Liability is denied, or if s

Plaintiff' Motion to Strike any Testimony Alleging Negligence by Jason Chamberlain or s Chamberlain' Passengers, Including Plaintiff Melanie Land Pursuant to F.R.C.P. 37(c)(1) and s Request for Other Appropriate Sanctions is denied, then Plaintiff anticipates filing the following motion: Plaintiff' Motion to Continue Trial and Extend the Discovery Deadline to Depose s Liability Witnesses; and Motion to Exclude Evidence of Non-Party Fault. 10) Plaintiff' Motion to Bifurcate. s

S:\Bnbsec\2004\PTO - 2004\0591revised.wpd

21

Case 1:04-cv-00591-MSK-BNB

Document 142

Filed 06/30/2005

Page 22 of 27

6. WITNESSES. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger Case No. 2005 Case Title: al. PLAINTIFF/DEFENDANT WITNESS LIST Melanie Land vs. State Farm Mutual Automobile Insurance Company, et 04-CV-0591-MSK-BNB Date: August 15,

WITNESS

TIME ESTIMATED FOR EXAMINATION
Direct Cross

Melanie Land Barry Land Cheryl Land Bob Cosper Eric Land Cindy Cannon Christopher Centeno, M.D. Officer R. Okada Richard Hodges Mark Decker Laura Piggott Daniel Haigler Carol Philip Jason Chamberlain Reed Sellers Lisa Lindgren
S:\Bnbsec\2004\PTO - 2004\0591revised.wpd

3 Hours .5 Hours .5 Hours .4 Hours .4 Hours .5 Hours 2.5 Hours .4 Hours 1 Hour .4 Hours .3 Hours .3 Hours .4 Hours .4 Hours .3 Hours .3 Hours

3 Hours .5 Hours .5 Hours .25 Hours .25 Hours .25 Hours 2 Hours .5 Hours 1.5 Hours .25 Hours .25 Hours .25 Hours .25 Hours .5 Hours .25 Hours .25 Hours

22

Case 1:04-cv-00591-MSK-BNB

Document 142

Filed 06/30/2005

Page 23 of 27

Edo Zylstra Steve Hassoldt Matthew Mulligan Rachel Basse, M.D. W. Bruce Wilson, M.D. Charles Seibert, M.D. Dale C. Crawford, C.P.C.U. Garth H. Allen Amy Varley Jacob Swift Raul Calahorra David Estrada

.5 Hours 1.5 Hours .75 Hours 1 Hour 1 Hour 1 Hour 1 Hour 1 Hour .75 Hours .5 Hours .5 Hours .5 Hours

.5 Hours 1.5 Hours .75 Hours 2 Hours .75 Hours .5 Hours 1 Hour Object Object .4 Hours .4 Hours .4 Hours

7. EXHIBITS See attached Exhibit A ­Exhibit List. Copies of listed exhibits must be provided to opposing counsel and any pro se party no later than July 8, 2005. The objections contemplated by Fed. R. Civ. P. 26(a)(3) shall be filed with the clerk and served by hand delivery or facsimile no later than 11 days after the exhibits are provided. 8. DISCOVERY Discovery has not yet been completed as to the bad faith claim against Defendant State Farm. Pursuant to an agreement between the parties and a court order, the deposition of Eric Land will take place on Friday, July 8, 2005, at 1:00 p.m., at the law offices of Bath & Associates, 2695 W. Eisenhower Blvd., Suite 160, Loveland, Colorado.
S:\Bnbsec\2004\PTO - 2004\0591revised.wpd

23

Case 1:04-cv-00591-MSK-BNB

Document 142

Filed 06/30/2005

Page 24 of 27

9. SPECIAL ISSUES. A. Plaintiff' Motion for Partial Summary Judgment and Plaintiff' s s

Motion to Strike Any Testimony Alleging Negligence By Jason Chamberlain or Chamberlain' Passengers, Including Plaintiff Melanie Land, Pursuant to F.R.C.P. 37(c)(1) s and Request for Other Appropriate Sanctions. Plaintiff has requested that this Court rule in her favor on the above motions concerning liability and prohibit any testimony that Jason Chamberlain was negligent and that Plaintiff was comparatively negligent under F.R.C.P. 37(c)(1). Should such untimely evidence be allowed, Plaintiff will be requesting a continuance of the discovery cut-of to depose liability witnesses, will be seeking leave of this court to amend her complaint to add Jason Chamberlain as a defendant in this action, and may need to seek a continuance of this case. B. Scheduling Order Re: Dispositive Motions.

On June 30, 2004, the Honorable Boyd N. Boland, U.S. Magistrate Judge, entered a Scheduling Order in this action. Under Section 7(c), " Case Plan and Schedule,"the dispositive motion deadline was set for January 7, 2005. On November 18, 2004, the Court extended the dispositive motion deadline to March 11, 2005. Following the granting of Plaintiff' Motion to s Amend Complaint to include a claim for bad faith against State Farm, no further deadline date was set with respect to the filing of dispositive motions. Thus, State Farm will be seeking permission to file a motion for partial summary judgment on Plaintiff' recently asserted claim s for bad faith.

S:\Bnbsec\2004\PTO - 2004\0591revised.wpd

24

Case 1:04-cv-00591-MSK-BNB

Document 142

Filed 06/30/2005

Page 25 of 27

C.

Bifurcation of the bad faith claims.

Plaintiff is contemplating filing a motion to bifurcate the underlying UIM contract action from the bad faith claim. State Farm would oppose this contemplated motion. 10. SETTLEMENT. a. Counsel for the parties met in person in mediation with the Honorable Leslie

Lawson on February 18, 2005, to discuss the settlement of the case. b. The participants in the settlement conference, included counsel, insurance

adjusters for State Farm and Progressive, and Plaintiff. c. d. The parties were promptly informed of all offers of settlement. Counsel for the parties will hold a further settlement conference before Magistrate

Judge Boland on July 20, 2005, at 3:30 p.m., in Chambers A-442. e. settlement. f. Counsel for the parties considered and conducted ADR in accordance with It appears from the discussion by all counsel that there may be some possibility of

D.C.COLO.LCivR.16.6. 11. OFFER OF JUDGMENT. Counsel acknowledge familiarity with the provision of rule 68 (Offer of Judgment) of the Federal Rules of Civil Procedure. Counsel have discussed it with the clients against whom claims are made in this case. 12. EFFECT OF FINAL PRETRIAL ORDER. Hereafter, this Final Pretrial Order will control the subsequent course of this action and
S:\Bnbsec\2004\PTO - 2004\0591revised.wpd

25

Case 1:04-cv-00591-MSK-BNB

Document 142

Filed 06/30/2005

Page 26 of 27

the trial, and may not be amended except by consent of the parties and approval by the court or by order of the court to prevent manifest injustice. The pleadings will be deemed merged herein. This Final Pretrial Order supersedes the Scheduling Order. In the event of ambiguity in any provision of this Final Pretrial Order, reference may be made to the record of the pretrial conference to the extent reported by stenographic notes and to the pleadings. 13. TRIAL AND ESTIMATED TRIAL TIME; FURTHER TRIAL. PREPARATION PROCEEDINGS This matter is a jury trial. It is estimated that the trial in this matter will take five (5) days. The trial will take place in Denver, Colorado in the United States District Court for the District of Colorado. Dated June 30, 2005. BY THE COURT: /s/ Boyd N. Boland United States Magistrate Judge

S:\Bnbsec\2004\PTO - 2004\0591revised.wpd

26

Case 1:04-cv-00591-MSK-BNB

Document 142

Filed 06/30/2005

Page 27 of 27

APPROVED: FLEISHMAN & SHAPIRO, P.C. /S Melissa J. Winthers Melissa J. Winthers, Esq. 1600 Broadway, #2600 Denver, CO 80202 Telephone: (303)861-1000 Facsimile: (303)894-0857 Attorneys for Plaintiffs

CROSS & LIECHTY, P.C. /S Jonathan A. Cross Jonathan Cross, Esq. David Canter, Esq. 400 S. Colorado Blvd., Suite 900 Denver, CO 80246 Telephone: (303)333-4122 Attorneys for Defendant State Farm Mutual Automobile Insurance Company

S:\Bnbsec\2004\PTO - 2004\0591revised.wpd

27