Free Judgment - District Court of Colorado - Colorado

Case 1:04-cv-00539-EWN

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Edward W. Nottingham Civil Action No. 04­ 00191­ cv­ EWN­ MJW

KIMBERLEY BREAUX, Plaintiff, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, a Wisconsin corporation, Defendant. Consolidated for all purposes with Civil Action No. 04­ 00539­ cv­ EWN­ MJW

LORI CHAMBERS, CRYSTAL HAMRICK, MARTIN PERSICHITTE, ROBERT W. REFFEL, and MICHAEL WHITEHEAD, Plaintiffs, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, a Wisconsin corporation, Defendant.

FINAL JUDGMENT

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Case 1:04-cv-00539-EWN

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Final Judgment 04-cv-00191-EWN-MJW Judge Edward W. Nottingham Page 2 of 6

In accordance with the orders filed during the pendency of this case, and pursuant to Fed. R. Civ. P. 58(a)(1), the following FINAL JUDGMENT is hereby entered as follows: 1. Pursuant to the written Order and Memorandum of Decision filed by Judge Edward W. Nottingham on September 22, 2005, it is ORDERED that: A. Plaintiff' Motion for Partial Summary Judgment (#36, filed November 30, s 2004) is GRANTED in part and DENIED in part. Plaintiff' motion is s GRANTED with respect to (1) Plaintiff' claim for declaratory judgment as to s violation of section 10­ 710(2)(a)(II) and (2) Plaintiff' claim for 4­ s reformation. Plaintiff' Motion for Partial Summary Judgment (#36, filed s November 30, 2004) is DENIED with respect to Plaintiff' claim for s declaratory judgment as to section 10­ 710(2)(a)(I) and section 4­ 10­ 706(4)(a). 4­ B. Defendant American Family Mutual Insurance Company' Motion for Partial s Summary Judgment (#34, filed November 30, 2004) is GRANTED. Defendant' motion is GRANTED with respect to (1) Plaintiff' claim for s s declaratory judgment as to violation of sections 10­ 710(2)(a)(I) and 4­ 10­ 706(4)(a) and (2) Plaintiff' claim for declaratory relief as to the 4­ s $200,000 aggregate limit upon reformation. -2-

Case 1:04-cv-00539-EWN

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Final Judgment 04-cv-00191-EWN-MJW Judge Edward W. Nottingham Page 3 of 6

C.

Defendant has violated Colorado Revised Statutes section 10­ 710(2)(a)(II) 4­ and Plaintiff is entitled to reformation of the insurance contract so that the contract complies with the statute, with an aggregate coverage limitation of $200,000.

D.

Defendant has complied with Colorado Revised Statutes sections 10­ 710(2)(a)(I) and10­ 706(4)(a). 4­ 4­

2. Pursuant to the written Order and Memorandum of Decision filed by Judge Edward W. Nottingham on September 1, 2006, it is ORDERED that: A. Plaintiffs' (Unopposed) Motion to Extend Ruling Re: Summary Judgment (#115, filed January 24, 2006) is GRANTED in part and DENIED in part. The motion is GRANTED to the extent it is unopposed. Accordingly, this court' prior ruling with respect to former Plaintiff Kimberly Breaux' motion s s for summary judgment is extended to Plaintiffs Chambers and Hamrick. The motion is DENIED as to Plaintiffs Whitehead, Persichitte, and Reffel. B. Defendant American Family Mutual Insurance Company' Motion for Partial s Summary Judgment in Consolidated Case (#117, filed January 27, 2006) is GRANTED in part and DENIED in part. The motion is GRANTED as to: (1) Plaintiffs'claims for declaratory relief concerning violation of the writing -3-

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Final Judgment 04-cv-00191-EWN-MJW Judge Edward W. Nottingham Page 4 of 6

requirement under section 10­ 706(4)(a); (2) Plaintiff Whitehead' claims 4­ s relating to the May 2001 Policy; (3) all of Plaintiff Reffel' claims, which are s barred by the statute of limitations; (4) Plaintiff Persichitte' claims under s section 10­ 710(a)(II), which are based on an applicable version of the law; 4­ and (5) Defendant' request for judicial declaration that Plaintiffs may not s stack coverage. The motion is DENIED as to Plaintiff Whitehead' claims s relating to the Whitehead Policy. C. Plaintiffs Chambers and Hamrick are entitled to reformation of their insurance contract to correct Defendant' violation of Colorado Revised Statutes section s 10­ 710(2)(a)(II), subject to an aggregate coverage limitation of $200,000. 4­ D. Defendant complied with Colorado Revised Statutes sections 10­ 710(2)(a)(I) and 10­ 706(4)(a). 4­ 4­ E. Plaintiffs with reformed policies may not stack coverage in the instant case.

3. Pursuant to the written Order and Memorandum of Decision filed by Judge Edward W. Nottingham on February 13, 2007, it is ORDERED that: A. Plaintiff Michael Whitehead' Motion to Increase Punitive Damage Award and s Enter Judgment (#117, filed November 16, 2006) is GRANTED in part and DENIED in part. -4-

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Final Judgment 04-cv-00191-EWN-MJW Judge Edward W. Nottingham Page 5 of 6

a. The motion to enter judgment is GRANTED; b. The motion to enter judgment for $70,000 in damages for breach of contract is DENIED; c. The motion to enter judgment for $51,450 in interest on the breach of contract damages is DENIED; d. The motion for trebling of the breach of contract damage award is DENIED; e. The motions to enter judgment for $250,000 in compensatory damages and $250,000 in exemplary damages for bad faith breach of contract are GRANTED; f. The motion to increase the exemplary damages award is DENIED; g. The motion for prejudgment interest is DENIED; h. The motion for attorney fees is DENIED in its present form; i. The motion for costs is DENIED in its present form; and j. The motion for postjudgment interest is GRANTED. B. Judgment is entered in favor of Plaintiff Whitehead and against Defendant on Plaintiff Whitehead' claims. The damages award shall comprise $250,000 in s compensatory damages for bad faith breach of contract, $250,000 in exemplary damages for bad faith breach of contract, and $69,312.41 in damages for -5-

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Final Judgment 04-cv-00191-EWN-MJW Judge Edward W. Nottingham Page 6 of 6

breach of contract. Interest shall accumulate at the statutory rate of eighteen percent per annum on the $69,312.41 in breach of contract damages, calculated as of the date of the said Order and Memorandum of Decision, and post-judgment interest as allowable by law. C. Subject to this court' determination, Plaintiff Whitehead may have his s reasonable attorney fees upon filing an application to this court in accordance with Federal Rule of Civil Procedure 54(d)(2) and United States District Court of the District of Colorado Local Rule 54.3. D. As the prevailing party at trial, Plaintiff Whitehead may have his reasonable costs upon following the procedures set forth in Federal Rule of Civil Procedure 54(d)(1) and United States District Court of the District of Colorado Local Rule 54.1. Dated this 26th day of February, 2007.

APPROVED BY THE COURT:

ENTERED FOR THE COURT: GREGORY C. LANGHAM, CLERK

s/ Edward W. Nottingham EDWARD W. NOTTINGHAM United States District Judge

By: s/Stephen P. Ehrlich Stephen P. Ehrlich Chief Deputy Clerk

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