JUDGMENT AFFIRMED. Division VI Opinion by JUDGE HAWTHORNE Lichtenstein and Gabriel, JJ., concur

Transcription

1 12CA2209 Smith v State Farm Mut COLORADO COURT OF APPEALS Court of Appeals No. 12CA2209 Douglas County District Court No. 11CV936 Honorable Paul A. King, Judge Danvis S. Smith, Plaintiff-Appellant, v. State Farm Mutual Automobile Insurance Company, Defendant-Appellee. JUDGMENT AFFIRMED Division VI Opinion by JUDGE HAWTHORNE Lichtenstein and Gabriel, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(f) Announced February 13, 2014 Danvis S. Smith, Pro Se DATE FILED: February 13, 2014 CASE NUMBER: 2012CA2209 Levy Wheeler Waters, P.C., Marc R. Levy, Heather E. Judd, Greenwood Village, Colorado, for Defendant-Appellee

2 Plaintiff, Danvis S. Smith, appeals the trial court s judgment for defendant, State Farm Mutual Automobile Insurance Company. We affirm. I. Facts and Procedural Background Approximately one year after sustaining injuries from an altercation at Denver International Airport, during which he was allegedly pulled out of a rental car by a police officer, plaintiff filed insurance claims with defendant, his motor vehicle insurer. The claims sought coverage for wage losses and medical payments. Defendant ultimately denied the claims, asserting that (1) plaintiff s notice was untimely; (2) plaintiff made material misrepresentations; and (3) plaintiff hampered the claim investigation process. Following the denial of his insurance claims, plaintiff filed suit against defendant and brought claims for breach of contract, bad faith breach of contract, improper denial of a claim under section , C.R.S. 2013, and violation of the Colorado Consumer Protection Act (CCPA) under section , C.R.S Defendant moved to dismiss the CCPA claim under C.R.C.P. 12(b)(5), and the trial court granted the motion. The trial court also granted defendant s motion for summary judgment under C.R.C.P. 1

3 56 on the remaining claims, as well as defendant s motion for costs. Lastly, the trial court denied plaintiff s motion for reconsideration. II. Summary Judgment Plaintiff first contends that the trial court erred in granting summary judgment because genuine issues of material fact precluded the entry of such a judgment. We disagree. A. Standard of Review We review a summary judgment de novo. W. Elk Ranch, L.L.C. v. United States, 65 P.3d 479, 481 (Colo. 2002); Barnhart v. Am. Furniture Warehouse Co., 2013 COA 158, 8. Summary judgment should be granted only if it is clear that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Turman v. Castle Law Firm, LLC, 129 P.3d 1103, 1105 (Colo. App. 2006) (citing Compass Ins. Co. v. City of Littleton, 984 P.2d 606, 613 (Colo. 1999)). The party moving for summary judgment has the burden of establishing the nonexistence of a genuine issue of material fact. Snook v. Joyce Homes, Inc., 215 P.3d 1210, 1218 (Colo. App. 2009). However, once the moving party has met this burden, the nonmoving party must establish that a triable issue of fact exists. Id. (citing Cont l Air 2

4 Lines, Inc. v. Keenan, 731 P.2d 708, (Colo. 1987)). At that point, the nonmoving party may not rest upon mere allegations or denials in its pleadings, but must provide specific facts demonstrating the existence of a genuine issue for trial. Colo. Cmty. Bank v. Hoffman, 2013 COA 146, 36 (quoting Sender v. Powell, 902 P.2d 947, 950 (Colo. App. 1995)). We also construe contract terms de novo. Fed. Deposit Ins. Corp. v. Fisher, 2013 CO 5, 9; Byerly v. Bank of Colo., 2013 COA 35, 15. B. Discussion The trial court granted summary judgment because it determined, based on evidence submitted by defendant and plaintiff s own admission, that plaintiff was not the sole owner of the car insured by defendant a 2003 Dodge Durango and consequently was not covered by the insurance policy. The court also noted that plaintiff s claim for coverage based on a nonowned vehicle endorsement of the insurance policy failed for the same reason. Finally, the court observed that plaintiff did not meet his burden to demonstrate a genuine issue of material fact regarding his bad faith claim. 3

5 On appeal, plaintiff argues that the trial court erred because genuine issues of material fact existed as to whether he was covered under defendant s insurance policy. In particular, plaintiff asserts that (1) an ownership interest in the covered vehicle was sufficient to obtain coverage and (2) he was eligible for coverage under the nonowned vehicle endorsement. We are not persuaded. The insurance contract between the parties included the following language: [Defendant] agree[s] to provide insurance according to the terms of this policy... in reliance on the following statement[]:... The named insured is the sole owner of your car. (Emphasis added.) Plaintiff affirmed in the insurance contract that the statements [regarding sole ownership of the car] are made by the named insured or applicant and are true, and that [defendant] provide[s] this insurance on the basis those statements are true. Defendant introduced evidence that plaintiff represented himself as the sole insured for the 2003 Dodge Durango. However, plaintiff later admitted in a deposition that (1) he was not on the Durango s title; (2) his wife and his employer, Alpha Ministries, were on the title; and (3) Alpha Ministries owned the vehicle, but he made payments on it and used it frequently. In light of plaintiff s 4

6 admission, there is no genuine issue of material fact as to the ownership of the Durango because, despite plaintiff s assertion that he had an ownership interest, he was indisputably not the sole owner as required by the insurance contract. Similarly, there is no genuine issue of material fact as to plaintiff s being covered under the insurance contract s nonowned vehicle endorsement while using a rental car. The endorsement states that all other provisions of the policy remain the same and apply to this endorsement. Because defendant was not the sole owner of the Durango, he was not covered by the policy, and accordingly was not entitled to coverage for nonowned vehicles under the policy. And although plaintiff alleges that defendant s representative told him that he would be covered under the nonowned vehicle endorsement despite not having title to the vehicle, his assertions are not supported by evidence in the record. See Colo. Cmty. Bank, 36. For these reasons, we conclude that the trial court correctly granted summary judgment for defendant. 5

7 III. Motion to Dismiss Plaintiff next contends that the trial court erred in dismissing his CCPA claim. We disagree. A. Standard of Review We review a motion to dismiss de novo. Hickman v. Catholic Health Initiatives, 2013 COA 129, 6. A motion under C.R.C.P. 12(b)(5) to dismiss [a complaint] for failure to state a claim upon which relief can be granted serves as a test of the formal sufficiency of a plaintiff's complaint. Qwest Corp. v. Colo. Div. of Prop. Taxation, 2013 CO 39, 12 (quoting Pub. Serv. Co. v. Van Wyk, 27 P.3d 377, 385 (Colo. 2001)). When reviewing an order granting a motion to dismiss, we view all of the nonmoving party s material factual allegations as true. Id. B. Discussion A claim brought pursuant to the CCPA must allege, inter alia, that the defendant s actions have a significant impact upon the public. Gen. Steel Domestic Sales, LLC v. Hogan & Hartson, LLP, 230 P.3d 1275, 1279 (Colo. App. 2010). To evaluate whether a plaintiff s alleged facts establish the public impact element, we consider (1) the number of consumers directly affected by the 6

8 challenged practice ; (2) the relative sophistication and bargaining power of the consumers affected by the challenged practice ; and (3) evidence that the challenged practice has previously impacted other consumers or has the significant potential to do so. Id. (quoting Rhino Linings USA, Inc. v. Rocky Mountain Rhino Lining, Inc., 62 P.3d 142, 149 (Colo. 2003)). Plaintiff alleged the following facts in his complaint to support his CCPA claim: [Defendant] failed to deliver services within a reasonable time ; [Defendant s] delays and denials were unreasonable, as [defendant] delayed and denied authorizing payment of covered benefits without a reasonable basis for that action ; Defendant s unreasonable delays and denials caused Plaintiff to suffer damages and losses. We conclude that plaintiff failed to state a claim for which relief could be granted. Plaintiff s allegations, if true, do not establish the public impact element necessary to sustain a CCPA claim. To the contrary, the allegations exclusively concern 7

9 defendant s conduct toward plaintiff. Accordingly, the trial court did not err in dismissing the claim. IV. Bill of Costs Plaintiff also contends that the trial court erred in calculating the costs awarded to defendant following its successful summary judgment motion. We disagree. [C]osts shall be allowed as of course to the prevailing party unless the court otherwise directs. C.R.C.P. 54(d). We review a court s award of costs for an abuse of discretion. First Citizens Bank & Trust Co. v. Stewart Title Guar. Co., 2014 COA 1, 50. Here, plaintiff asserts that the trial court erroneously awarded defendant hundreds of dollars more than defendant was entitled to. We conclude that plaintiff s argument, made without analysis or reference to evidence in the record, is not persuasive. See Westrac, Inc. v. Walker Field, 812 P.2d 714, 718 (Colo. App. 1991) (bare statements in briefs cannot supply that which must appear from a certified record). V. Recusal and Venue Change Finally, plaintiff contends, for the first time on appeal, that the trial court erred in failing to recuse itself from the case because its 8

10 conduct evinced bias against him. To remedy the alleged bias, plaintiff requests a writ of mandamus from this court to change venue. We need not consider plaintiff s argument concerning the trial court s bias because the argument was not preserved. See Melat, Pressman & Higbie, L.L.P. v. Hannon Law Firm, L.L.C., 2012 CO 61, 18 ( It is axiomatic that issues not raised in or decided by a lower court will not be addressed for the first time on appeal. ). For the same reason, we decline to consider plaintiff s argument concerning change of venue. See id. Judgment affirmed. JUDGE LICHTENSTEIN and JUDGE GABRIEL concur. 9

11 CHRIS RYAN CLERK OF THE COURT STATE OF COLORADO 2 East 14 th Avenue Denver, CO (720) PAULINE BROCK CHIEF DEPUTY CLERK NOTICE CONCERNING ISSUANCE OF THE MANDATE Pursuant to C.A.R. 41(b), the mandate of the Court of Appeals may issue fortythree days after entry of the judgment. In worker s compensation and unemployment insurance cases, the mandate of the Court of Appeals may issue thirty-one days after entry of the judgment. Pursuant to C.A.R. 3.4(I), the mandate of the Court of Appeals may issue twenty-nine days after the entry of the judgment in appeals from proceedings in dependency or neglect. Filing of a Petition for Rehearing, within the time permitted by C.A.R. 40, will stay the mandate until the court has ruled on the petition. Filing a Petition for Writ of Certiorari with the Supreme Court, within the time permitted by C.A.R. 52(b) will also stay the mandate until the Supreme Court has ruled on the Petition. BY THE COURT: Alan M. Loeb Chief Judge DATED: October 10, 2013 Notice to self-represented parties: The Colorado Bar Association provides free volunteer attorneys in a small number of appellate cases. If you are representing yourself and meet the CBA low income qualifications, you may apply to the CBA to see if your case may be chosen for a free lawyer. Self-represented parties who are interested should visit the Appellate Pro Bono Program page at