Corsentino v. Hub International Insurance Services, Inc., et al

MOTION to Dismiss for Failure to State a Claim re Plaintiff's and Plaintiff Intervenors' Third, Fourth, Fifth and Sixth Claims

D. Colo.March 29, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 16-cv-01917- RM-STV KIMBERLY CORSENTINO, Plaintiff, v. HUB INTERNATIONAL INSURANCE SERVICES, INC. and THE TRAVELERS INDEMNITY COMPANY OF CONNECTICUT, foreign corporations, Defendants, and JASON AND MENDY BROCKMAN, Plaintiff Intervenors DEFENDANT THE TRAVELERS INDEMNITY COMPANY OF CONNECTICUT’S RULE 12(b)(6) MOTION TO DISMISS PLAINTIFF’S AND PLAINTIFF INTERVENORS’ THIRD, FOURTH, FIFTH & SIXTH CLAIMS FOR RELIEF Defendant, The Travelers Indemnity Company of Connecticut (“Travelers”), by and through its attorneys of record, Max K. Jones, Kevin F. Amatuzio and Kyle B. Joyce, of Montgomery Amatuzio Dusbabek Chase, LLP, respectfully moves this Honorable Court to dismiss the Plaintiff’s and Plaintiff Intervenors’ Third (Bad Faith Breach of Insurance Contract Against Travelers), Fourth (Violation of C.R.S. § 10-3-1115 Against Travelers), Fifth (Negligent Procurement of Insurance Against Travelers and Hub) and Sixth (Negligent Misrepresentation) claims for relief, pursuant to Fed.R.Civ.P. 12(b)(6), as these claims fail to state a claim upon Case 1:16-cv-01917-RM-STV Document 87 Filed 03/29/17 USDC Colorado Page 1 of 15 2 which relief can be granted. The claims must fail because the claims were not brought within the applicable statute of limitations period. In support of this Motion, Travelers states as follows: I. ALLEGATIONS IN KIMBERLY CORSENTINO’S FIRST AMENDED COMPLAINT 1. This matter concerns Kimberly Corsentino’s (“Ms. Corsentino’s” or “Plaintiff’s”) efforts to obtain liability coverage under a policy of insurance issued by Travelers to Corsentino Dairy Farms, Inc. (the “Corporation”). The policy at issue bears policy No. BA-3C057402-12- AGR (the “Policy”), which was issued by Travelers to the Corporation, for the policy period from September 3, 2012 to September 3, 2013. See First Amended Complaint (“Amended Complaint”), ¶¶ 10-11. Plaintiff alleges that she was identified as a driver in the Policy and that the 2008 Jeep Grand Cherokee (the “Jeep”) she owns was a scheduled vehicle under the Policy. Id. at ¶ 10. 2. Plaintiff was involved in a motor vehicle accident (the “Accident”) on July 5, 2013. Id. at ¶ 8. While southbound on Interstate 25, Plaintiff turned the Jeep in front of Jason and Mendy Brockman, causing the Jeep to collide with their Honda. Id. The Accident resulted in injuries to the occupants of the Honda. Id. at ¶ 9. Plaintiff sought liability coverage under the Policy. See Amended Complaint. 3. The Policy defines an insured to include: a. [The Corporation] for any covered “auto”; b. Anyone else while using with [the Corporation’s] permission a covered “auto” [the Corporation] own[s], hire[s] or borrow[s] except: 1. The owner or anyone else from whom [the Corporation] hire[s] or borrow[s] a covered “auto”; This exception does not apply if the covered “auto” is a “trailer” connected to a covered “auto” [the Corporation] own[s]. Case 1:16-cv-01917-RM-STV Document 87 Filed 03/29/17 USDC Colorado Page 2 of 15 3 * * * Id. at ¶ 44. 4. Travelers denied liability coverage to Plaintiff, based on the above cited provision, because she did not qualify as an “insured,” with respect to the Jeep. Id. at ¶ 45. In the Amended Complaint, Plaintiff takes the position that Travelers’ denial of coverage to Plaintiff is “unreasonable, contrary to insurance industry standards, and done in bad faith.” Id. at ¶ 47. As a result of Travelers’ denial of coverage, Plaintiff filed suit against Travelers and Hub, asserting claims for declaratory judgment, breach of contract, common law bad faith breach of insurance contract, statutory violation of C.R.S. § 10-3-1115, negligent procurement of insurance and negligent misrepresentation. See Amended Complaint. 5. This Motion concerns Plaintiff’s claims for bad faith breach of an insurance contract, statutory violation of C.R.S. § 10-3-1115, negligent procurement of insurance and negligent misrepresentation. As explained more fully below, Plaintiff failed to assert her claims for common law bad faith breach of insurance contract, statutory violation of C.R.S. § 10-3- 1115, negligent procurement of insurance and negligent misrepresentation within the applicable limitations period. II. LEGAL STANDARD 6. “In reviewing a motion to dismiss, the court must ‘accept all well-pleaded facts as true and view them in the light most favorable’ to the party asserting the claim. Walden v. Metro. Life Ins. Co. of Am., Inc., 75 F. Supp. 3d 1320, 1324 (D. Colo. 2014) (quoting Jordan– Arapahoe, LLP v. Bd. of County Comm’rs of Cnty. of Arapahoe, 633 F.3d 1022, 1025 (10th Cir. 2011)). “This means that the plaintiff must allege enough factual matter, taken as true, to make Case 1:16-cv-01917-RM-STV Document 87 Filed 03/29/17 USDC Colorado Page 3 of 15 4 his ‘claim to relief ... plausible on its face.”’ Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 167 L.Ed.2d 929 (2007)). When addressing a motion to dismiss, the court may consider only the facts alleged in the complaint, attached exhibits, documents incorporated by reference in the complaint and matters of which the court may take judicial notice. Walker v. Van Laningham, 148 P.3d 391, 396-97 (Colo. App. 2006). 7. “Although a statute of limitations bar is an affirmative defense, questions regarding the statute of limitations may be resolved under Rule 12(b)(6) when it is clear from the face of the complaint that the right sued upon has been extinguished.” Int'l Bhd. of Elec. Workers, Local #111 v. Pub. Serv. Co. of Colorado, 176 F. Supp. 3d 1102, 1112 (D. Colo. 2016) (citing Aldrich v. McCulloch Props., Inc., 627 F.2d 1036, 1041 n. 4 (10th Cir.1980)); see also Jackson v. Standifird, 463 Fed.Appx. 736, 737 (10th Cir.2012) (“Dismissal of a claim as time- barred is treated as a dismissal for failure to state a claim”); Radloff-Francis v. Wyo. Med. Ctr., Inc., 524 Fed.Appx. 411, 413 (10th Cir. 2013) (statute of limitations bar may be resolved on a Rule 12(b)(6) motion to dismiss when dates given in complaint clearly evidence the claims asserted are time barred). III. LAW AND ARGUMENT A. Plaintiff’s Third (Bad Faith Breach of Insurance Contract), Fifth (Negligent Procurement of Insurance), and Sixth (Negligent Misrepresentation) claims for relief are subject to a two-year limitations period pursuant to C.R.S. § 13-80-102(1)(a). 8. “A federal court sitting in diversity applies state law for statute of limitations purposes.” Burnham v. Humphrey Hosp. Reit Trust, Inc., 403 F.3d 709, 712 (10th Cir. 2005). Under Colorado law, tort actions, including claims premised on negligence, are subject to a two- year statute of limitations. C.R.S. § 13-80-102(1)(a). Case 1:16-cv-01917-RM-STV Document 87 Filed 03/29/17 USDC Colorado Page 4 of 15 5 9. Under Colorado law, Plaintiff’s claim for common law bad faith breach of an insurance contract is a tort claim that is subject to a two-year statute of limitations period. Brodeur v. Am. Home Assur. Co., 169 P.3d 139, 150 (Colo. 2007) (“The statute of limitations bars bad faith tort actions brought more than two years after the claim accrues.”); Alarcon v. Am. Family Ins. Grp., CIVA 08CV01171MSKMJW, 2010 WL 2541131, at *3 (D. Colo. June 18, 2010) (“In Colorado, actions for bad faith breach of insurance contract sound in tort and, therefore, are subject to a two-year limitation period.”); Harmon v. Fred S. James & Co. of Colorado, Inc., 899 P.2d 258, 260 (Colo.App. 1994). 10. Like Plaintiff’s bad faith breach of insurance contract claim, her claims for negligent procurement of insurance and negligent misrepresentation are also subject to a two- year limitations period. Ebrahimi v. E.F. Hutton & Co., Inc., 794 P.2d 1015, 1017 (Colo.App. 1989). “While [other jurisdictions] have applied the fraud statute of limitations to [negligent misrepresentation claims], [this court is] convinced that a negligent misrepresentation claim is one based upon simple negligence… .” Id. In Deatley v. Allard, 14-CV-00100-RM-KMT, 2015 WL 134271, at *4 (D. Colo. Jan. 9, 2015), this Court reached the same conclusion as the Ebrahimi court, and held that negligent misrepresentation claims are subject to the two-year statute of limitations period set forth in C.R.S. § 13-80-102(1)(a)); See also Butera v. Crane, 13- CV-03327-RBJ, 2014 WL 5849317, at *7 (D. Colo. Nov. 12, 2014) (“Under Colorado law, a two-year statute of limitations applies to negligent misrepresentation.”); See Colorado Pool Sys., Inc. v. Scottsdale Ins. Co., 317 P.3d 1262, 1274 (Colo. App. 2012) (concluding that a two year statute of limitations applied to the contractor’s negligent misrepresentation claim). Case 1:16-cv-01917-RM-STV Document 87 Filed 03/29/17 USDC Colorado Page 5 of 15 6 11. Here, Plaintiff’s Amended Complaint asserts that “Travelers’ conduct falls below the standard of care for prudent insurers in the State of Colorado, violates the Policy’s implied covenant of good faith and fair dealing, and constitutes the tort of bad faith breach of insurance contract as recognized in Colorado by C.R.S. § 10-3-1113, incorporating C.R.S. § 10-3-1104 and the common law.” See Amended Complaint at ¶ 65. With respect to the negligent procurement of insurance and negligent misrepresentation claims, Plaintiff asserts that Hub was negligent by unreasonably failing to procure the insurance requested by the Corporation and negligently representing to the Corporation the type and extent of coverage provided under the Policy. See Amended Complaint at pp. 16-17. Based on the foregoing, it is abundantly clear that Plaintiff’s third, fifth and sixth claims for relief are tort claims subject to a two-year limitation period, pursuant to C.R.S. 13-80-102(1)(a). B. Plaintiff’s Fourth claim for relief (Violation of C.R.S. § 10-3-1115) is subject to a one- year limitations period pursuant to C.R.S. § 13-80-103(1)(d). 12. Under Colorado law, actions to recover penalties are subject to a one-year statute of limitations. See C.R.S. § 13-80-103(1)(d). C.R.S. § 13-80-103(1)(d) provides, “[t]he following civil actions, regardless of the theory upon which suit is brought, or against whom suit is brought, shall be commenced within one year after the cause of action accrues, and not thereafter: … (d) All actions for any penalty or forfeiture of any penal statues.” Id. 13. “A statutory claim is a claim for a ‘penalty’ for statute of limitations purposes if ‘(1) the statute asserted a new and distinct cause of action; (2) the claim would allow recovery without proof of actual damages; and (3) the claim would allow an award in excess of actual damages.” Gerald H. Phipps, Inc. v. Travelers Prop. Cas. Co. of Am., 14-CV-01642-PAB- Case 1:16-cv-01917-RM-STV Document 87 Filed 03/29/17 USDC Colorado Page 6 of 15 7 KLM, 2015 WL 5047640, at *1 (D. Colo. Aug. 27, 2015) (citing Kruse v. McKenna, 178 P.3d 1198, 1201 (Colo. 2008)). 14. There can be no doubt that the first prong of the Kruse test is satisfied. C.R.S. § 10-3-1116(4) states, “[t]he action authorized in this section is in addition to, and does not limit or affect, other actions available by statute or common law, now or in the future.” C.R.S. 10-3- 1116(4). Accordingly, § 10-3-1116(1) creates a new and distinct cause of action. See Hall v. American Std. Ins. Co., 292 P.3d 1196, 1200 (Colo.App.2012) (§ 10-3-1116(1) “create[s] a statutory claim, separate from the common law tort of bad faith breach of an insurance contract, or recovery when an insurer has delayed or denied payment of covered benefits without a reasonable basis.”). 15. In Gerald H. Phipps, Inc. v. Travelers Prop. Cas. Co. of Am., 14-CV-01642-PAB- KLM, 2015 WL 5047640, at *2 (D. Colo. Aug. 27, 2015), the court concluded that the second prong of the Kruse test was met, providing the following analysis in support: “Section 1116... explicitly contemplates and countenances that an insured may simultaneously bring a breach of contract claim to recover certain benefits he was denied and a section 1116 claim for double those benefits if they were unreasonably denied[.]” Rabin v. Fidelity Nat'l Prop. & Cas. Ins. Co., 863 F. Supp. 2d 1107, 1111-12 (D. Colo. 2012). The nature of the remedy for unreasonable denial or delay of payment, namely, two times the covered benefit (in addition to any contractual damages that may be owed), reflects the imposition of a penalty rather than compensation for actual damages. See Etherton, 2013 WL 5443068, at *3 (noting that Section 1116(1) “does not incorporate the amount of contract damages into the amount plaintiff can recover, but rather uses the covered benefit as a unit for measuring the amount of the penalty”); Flowers v. Life Ins. Co. of North Am., 781 F. Supp. 2d 1127, 1132 (D. Colo. 2011) (describing the insurance bad faith statute as creating a “civil penalty remedy” that “does not affect the substantive terms or content of insurance policies”). The fact that Section 10-3-1116 does not depend upon a finding of “actual damages” is illustrated by a plaintiff's ability to recover twice the covered benefit even if the insurer pays the benefit in full. Section 10-3-1116(1) allows recovery for a claim that was “unreasonably delayed or denied.” Hernandez v. Am. Standard Ins. Co. Case 1:16-cv-01917-RM-STV Document 87 Filed 03/29/17 USDC Colorado Page 7 of 15 8 of Wisc., No. 11-cv-03076-RBJ, 2013 WL 6633392, at *4 (D. Colo. Dec. 16, 2013) (insured may “recover two times the ‘covered benefit’ even if the benefit was unreasonably delayed but not denied.”). Thus, although a plaintiff in a statutory bad faith claim who claims delay must prove the amount of the covered benefit, there is no need that plaintiff prove that he or she suffered actual damages. As the Colorado Court of Appeals held in Hansen v. Am. Family Mut. Ins. Co., there is no requirement in either Section 10-3-1115 or Section 1116 that the insured “suffer and prove damages attributable to any unreasonable delay or denial in the payment of the covered benefit.” --- P.3d ----, 2013 WL 6673066, at *9 (Colo. App. 2013), cert. granted, Am. Family Mut. Ins. Co. v. Hansen, 2014 WL 5510047 (Colo. Nov. 3, 2014). 16. Gerald H. Phipps, Inc. v. Travelers Prop. Cas. Co. of Am., 14-CV-01642-PAB-KLM, 2015 WL 5047640, at *2 (D. Colo. Aug. 27, 2015) (emphasis in original). 17. Lastly, § 10-3-1116(1) satisfies the third prong of the Kruse test because it allows recovery in excess of actual damages. “In sum, the Court finds that Section 10-3-1116(1) satisfies all three elements of the Kruse test and is thus properly characterized as a statutory penalty.” Gerald H. Phipps, Inc., 2015 WL 5047640, at *3 (citing Hernandez v. Am. Standard Ins. Co. of Wisc., No. 11-cv-03076-RBJ, 2013 WL 6633392, at *4 (D. Colo. Dec. 16, 2013) (concluding that claims under §§ 10-3-1115 and 1116 are penalties). “The plain reading of [C.R.S. §§ 10-3-1116(1) and 10-3-1116(4)] indicates a plaintiff can bring a common law breach of contract claim, recover contract damages, and bring a claim for an insurer's unreasonable delay or denial of benefits in addition to the breach of contract claim.” Home Loan Inv. Co. v. St. Paul Mercury Ins. Co., 827 F.3d 1256, 1264 (10th Cir. 2016) (emphasis in original). Therefore, all three of the Kruse prongs are satisfied, and Plaintiff’s claim brought pursuant to C.R.S. §§ 10- 3-1115 and 10-3-1116 is subject to a one-year statute of limitations period, pursuant to C.R.S. § 13-80-103(1)(d). Case 1:16-cv-01917-RM-STV Document 87 Filed 03/29/17 USDC Colorado Page 8 of 15 9 C. Plaintiff’s Third, Fourth, Fifth and Sixth Claims for Relief are time-barred because Plaintiff failed to assert these claims within the applicable limitations periods as set forth in Sections A. and B. 18. Under Colorado law, a negligence action accrues “when the injury, loss, damage, or conduct giving rise to the cause of action is discovered or should have been discovered by the exercise of reasonable diligence.” C.R.S. § 13-80-108(8). “Claims for violation of §§ 10–3– 1115 and 10–3–1116 ‘accrue in the same manner as bad faith claims.’ Pinewood Townhome Ass'n, Inc v. Auto Owners Ins. Co., 15-CV-01604-CMA-NYW, 2017 WL 590294, at *4 (D. Colo. Feb. 13, 2017) (citing Wardcraft Homes, Inc. v. Employers Mut. Cas. Co., 70 F.Supp.3d 1198, 1212 (D. Colo. 2014)). Claims for bad faith breach of an insurance contract, statutory violations of § 10-3-1115, negligent procurement of insurance and negligent misrepresentation accrue in the same manner as negligence claims. Olson v. State Farm Mut. Auto Ins. Co., 174 P.3d 849, 853 (Colo.App.2007) ( “A claim for bad faith breach of an insurance contract accrues when “both the injury and its cause are known or should have been known by the exercise of reasonable diligence.”); Colorado Pool Sys., Inc., 317 P.3d at 1274 (Insured’s claim for negligent misrepresentation accrued on the date insurer denied coverage, because insured should have discovered on that date that the insurance agent/broker misrepresented the extent of coverage.); Gargano v. Owners Ins. Co., 12-CV-01109-CMA-BNB, 2014 WL 3843786, at *3 (D. Colo. Aug. 5, 2014), aff'd, 623 Fed. Appx. 921 (10th Cir. 2015)1 (plaintiff’s §§ 10-3-1115 and 1116 claims accrued in same manner as bad faith breach of contract claims). 1 Travelers notes that the Gargango court concluded that a two-year statute of limitations applies to §§ 10-3-1115 and 1116 claims, rather than the one-year limitations period determined by the courts in the cases cited in Section B of this Motion. Gargango, 2014 WL 3843786, at *3. As set forth more fully below, however, even assuming arguendo that a two-year limitations period applies to Plaintiff’s and Plaintiff Intervenors’ statutory claims, the same are nonetheless untimely. Case 1:16-cv-01917-RM-STV Document 87 Filed 03/29/17 USDC Colorado Page 9 of 15 10 19. With respect to information or knowledge that a Plaintiff must possess for an action to accrue, ‘“[t]he critical inquiry of when an action accrues is knowledge of the facts essential to the cause of action, not knowledge of the legal theory upon which the action may be brought.”’ Olson v. State Farm Mut. Auto. Ins. Co., 174 P.3d 849, 855 (Colo.App. 2007) (quoting Winkler v. Rocky Mountain Conference, 923 P.2d 152, 159 (Colo.App.1995)). Additionally, a plaintiff is required to “exercise reasonable diligence in discovering the relevant circumstance of her claims.” Gargango, 2014 WL 3843786, at *3. 20. Generally the accrual date of a particular claim is a question of fact, however, “if the undisputed facts clearly show that a plaintiff discovered, or reasonably should have discovered, the negligent conduct as of a particular date, the issue may be decided as a matter of law.” Winkler, 923 P.2d at 159. Where an insured’s bad faith claim is based on the insurer’s refusal to provide insurance coverage, an insurer can breach its duty of good faith and fair dealing before the underlying matter is resolved. Brodeur v. American Home Assur. Co., 169 P.3d 139, 148 (Colo. 2007). Furthermore, when an insured is represented by counsel, “[a]n attorney is presumed to know the law, and an attorney’s knowledge is imputed to the client if it relates to the proceedings for which the attorney has been employed.” Murry v. GuideOne Specialty Mut. Ins. Co., 194 P.3d 489, 493 (Colo.App.2008). 21. In Murry, the claimant sued her insurer for failure to offer her extended PIP benefits as required by the now repealed Colorado Auto Accident Reparations Act. Id. at 491. The subject accident occurred in September 1995, and the insured received basic PIP benefits through September 1996. Id. at 490-91. The insured retained an attorney in October 1995 to assist her in pursuing a judgment against the at-fault tortfeasor. Id. When the insured’s basic PIP Case 1:16-cv-01917-RM-STV Document 87 Filed 03/29/17 USDC Colorado Page 10 of 15 11 benefits ceased in September 1996, neither her nor her counsel sought benefits beyond the basic benefits provided. Id. at 491. 22. In 2005, the insured received notice of a class action suit concerning an insurer’s duty to offer enhanced PIP benefits. Id. The insured contacted the attorney who sent her the class action notice to determine whether she had a potential claim. Id. The new attorney investigated whether she had a potential claim, and filed a complaint on her behalf against her insurer in 2005. Id. The insurer eventually filed a motion for summary judgment, asserting that the insured’s claims were barred by the applicable statute of limitations. Id. at 492. The trial court granted the insurer’s summary judgment motion and the insured appealed. Id. The appeals court concluded that the insured “knew the facts essential to her claim and should have been motivated to inquire further in 1996 when the basic PIP benefits terminated. Id. at 493. Since the insured did not file her complaint until 2005, the appeals court concluded that her claim was barred under the applicable statute of limitations. Id. 23. The Colorado Pool Systems court reached a similar conclusion when considering when a claim for negligent misrepresentation accrues. Colorado Pool Systems, 317 P.3d at 1274. In Colorado Pool Systems, the pool contractor agreed to build a swimming pool for the Founders Village Pool and Community Center. Id. at 1266. After the pool was completed, the owner alleged that the pool was defective and demanded that the pool be torn out and replaced. Id. The pool contractor did not think this was necessary, and believed that sections of the pool could be repaired with ripping out the entire pool. Id. at 1272. The pool contractor met with the insurance adjuster assigned to review the case at the project site. Id. at 1271. While at the work site, the insurance adjuster allegedly made several representations to the pool contractor concerning the Case 1:16-cv-01917-RM-STV Document 87 Filed 03/29/17 USDC Colorado Page 11 of 15 12 availability of coverage for demolishing and replacing the defective pool. Id. at 1272. The adjuster allegedly told the pool contractor that he had the authority to make coverage decisions on behalf of the insurer, and that consequential rip and tear damages would be covered. Id. After the pool contractor began demolishing the pool, its insurer advised that the claim was being denied. Id. With respect to when the pool contractor’s negligent misrepresentation claim accrued, the court reasoned that the same would have accrued when the pool contractor received the denial of coverage letter from the insurer. Id. at 1274. 24. Here, like the above cited cases, Plaintiff’s tort claims, all of which accrued in the same manner as a negligence claim, accrued when Plaintiff discovered, or reasonably should have discovered, the negligent conduct giving rise to her claims. In this instance, Plaintiff should have known about her bad faith breach of an insurance contract claim, violation of § 10-3-1115 claim, negligent procurement of insurance claim and negligent misrepresentation claim when she received Travelers first denial of coverage letter dated July 18, 2013. See Amended Complaint at ¶ 32. 25. Plaintiff alleges in her Amended Complaint that she made a timely demand on Travelers for liability coverage under the Policy issued to the Corporation. See Amended Complaint at ¶ 29. Plaintiff further alleges that “[o]n July 18, 2013, Travelers sent a letter to Ms. Corsentino denying coverage for the Accident. Plaintiff alleges that Travelers’ denied coverage for the Accident because “Ms. Corsentino … did not fit the definition of an ‘insured.”’ Id. at ¶ 45. 26. Both Plaintiff’s common law bad faith claim and statutory claim are premised on Travelers’ alleged unreasonable delay or denial of her claim without a reasonable basis to do so. Case 1:16-cv-01917-RM-STV Document 87 Filed 03/29/17 USDC Colorado Page 12 of 15 13 Plaintiff’s negligent procurement of insurance claim is premised on the belief that Hub, whose conduct Plaintiff contends is imputed to Travelers, failed to procure the insurance requested by the Corporation. Similarly, Plaintiff’s negligent misrepresentation is also based on allegations that Hub and Travelers supplied false and misleading information concerning the extent of coverage provided by the Policy. 27. Based on the foregoing case authority, Plaintiff knew, per the letter of July 18, 2013, when coverage for the Accident was first denied, of the facts supporting her claims against Travelers for the causes of action discussed herein. Plaintiff’s Complaint was filed on July 1, 2016 (nearly 3 years after coverage was denied), and Plaintiff’s First Amended Complaint was filed on March 15, 2017 (over 3.5 years after coverage was denied).2 Accordingly, to avoid a statute of limitations defense, Plaintiff needed to assert her claims against Travelers by the following dates: a. Third Claim For Relief: Statute of limitations expired on July 18, 2015. b. Fourth Claim For Relief: Statute of limitations expired on July 18, 2014. c. Fifth Claim For Relief: Statute of Limitations expired on July 18, 2015. d. Sixth Claim For Relief: Statute of Limitations expired on July 18, 2015. 28. Despite knowledge of the facts giving rise to these causes of action, Plaintiff did not file her Complaint against Travelers until July 1, 2016, almost one year after the applicable statute of limitations expired for her Third, Fifth & Sixth Claims for Relief, and almost two years after the limitations period expired for her Fourth Claim for Relief. 2 Travelers notes that Plaintiff’s Fourth, Fifth and Sixth claims for relief are new claims that were not asserted in the Complaint filed on July 1, 2016. Travelers does not concede that the newly added claims relate back to the original Complaint. However, assuming for the sake of argument they do, Plaintiff’s Fourth, Fifth and Sixth claims are nonetheless untimely and barred by the applicable statute of limitations period. Case 1:16-cv-01917-RM-STV Document 87 Filed 03/29/17 USDC Colorado Page 13 of 15 14 IV. CONCLUSION 29. As previously noted, motions to dismiss under Fed.R.Civ.P. 12(b)(6) are designed to test the Complaint’s legal sufficiency to determine whether the plaintiff has asserted a claim for which relief may be granted. In evaluating the motion, the Court must accept all material factual averments as true and must view the complaint’s allegations in the light most favorable to the plaintiff. Applying that standard here, Plaintiff’s Third, Fourth, Fifth and Sixth Claims for Relief fail to state a viable claim against Travelers as a matter of law and must be dismissed. WHEREFORE, for the reasons stated herein, this Court should dismiss the Plaintiff’s Third, Fourth, Fifth and Sixth Claims For Relief for failure to state a claim against Travelers upon which relief can be granted. Rule 12(b)(6), Fed.R.Civ.P. For this relief Travelers prays, together with such other and further relief as the Court may deem just and proper. Respectfully submitted this 29th day of March 2017. MONTGOMERY AMATUZIO DUSBABEK CHASE, LLP s/ Kyle B. Joyce Max K. Jones, Jr. Kevin F. Amatuzio Kyle B. Joyce 4100 E. Mississippi Ave. Denver, CO 80246 Telephone: (303) 592-6600 Facsimile: (303) 592-6666 E-mails: mjones@madc-law.com kamatuzio@madc-law.com kjoyce@madc-law.com ATTORNEYS FOR DEFENDANT THE TRAVELERS INDEMNITY COMPANY OF CONNECTICUT Case 1:16-cv-01917-RM-STV Document 87 Filed 03/29/17 USDC Colorado Page 14 of 15 15 CERTIFICATE OF SERVICE I hereby certify that on March 29, 2017 a true and correct copy of the foregoing DEFENDANT THE TRAVELERS INDEMNITY COMPANY OF CONNECTICUT’S RULE 12(b)(6) MOTION TO DISMISS PLAINTIFF’S AND PLAINTIFF INTERVENORS’ THIRD, FOURTH, FIFTH & SIXTH CLAIMS FOR RELIEF was filed and served in the manner indicated below and properly addressed as follows: Counsel for Plaintiff: W. Randolph Barnhart Melissa A. Hailey, Esq. Zachary C. Warzel, Esq. Keating Wagner Polidori Free, PC 1290 Broadway, Suite 600 Denver, CO 80203 Fax US Mail ECF E-Mail Counsel for Hub International Insurance Services: Hilary D. Wells, Esq. Lewis Roca Rothgerber Christie LLP 1200 17th Street, Suite 3000 Denver, CO 80202-5855 - and - Lyndsay K. Arundel, Esq. Lewis Roca Rothgerber Christie LLP 1200 17th Street, Suite 3000 Denver, Colorado 80202-5835 Fax US Mail ECF E-Mail Counsel for Plaintiffs-Intervenors Jason and Mendy Brockman: Thomas Metier, Esq. Phillip B. Chupik, Esq. 4828 South College Avenue Fort Collins, CO 80525 - and - James L. Gilbert, Esq. Anne M. Dieruf, Esq. Anthony P. Bolson, Esq. 5400 Ward Road, Bldg. IV, Suite 200 Arvada, CO 80002 Fax US Mail ECF E-Mail s/ Karen Wood Karen Wood Case 1:16-cv-01917-RM-STV Document 87 Filed 03/29/17 USDC Colorado Page 15 of 15 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 16-cv-01917- RM-STV KIMBERLY CORSENTINO, Plaintiff, v. HUB INTERNATIONAL INSURANCE SERVICES, INC. and THE TRAVELERS INDEMNITY COMPANY OF CONNECTICUT, foreign corporations, Defendants, and JASON AND MENDY BROCKMAN, Plaintiff Intervenors. ORDER GRANTING DEFENDANT THE TRAVELERS INDEMNITY COMPANY OF CONNECTICUT’S RULE 12(b)(6) MOTION TO DISMISS PLAINTIFF’S AND PLAINTIFF INTERVENORS’ THIRD, FOURTH, FIFTH & SIXTH CLAIMS FOR RELIEF THIS MATTER comes before the Court on Defendant, The Travelers Indemnity Company of Connecticut's Rule 12(b)(6) Motion to Dismiss Plaintiff's and Plaintiff Intervenors' Third, Fourth, Fifth & Sixth Claims for Relief, and the Court being fully advised in the premises, hereby GRANTS said Motion, and ORDERS that Plaintiff's and Plaintiff Intervenors' Third, Fourth, Fifth and Sixth Claims for Relief are DISMISSED. Dated this ___ day of _______, 2017. BY THE COURT: _____________________________ USDC Judge Case 1:16-cv-01917-RM-STV Document 87-1 Filed 03/29/17 USDC Colorado Page 1 of 1