Mayfield v. DeLaCroix

24CA2026 Mayfield v DeLaCroix 02-12-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA2026
Boulder County District Court No. 22CV30463
Honorable Elizabeth Beebe Volz, Judge

Douglas Mayfield and Amanda Mayfield,

Plaintiffs-Appellants,

v.

Nancy DeLaCroix; MetLife Auto & Home Insurance Agency n/k/a Farmers
General Insurance Agency, Inc., a Rhode Island corporation; American
Strategic Insurance Corp. d/b/a Progressive Home, a Florida corporation; and
Marshall & Swift/Boeckh, LLC, a Delaware corporation,

Defendants-Appellees.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE FOX
Kuhn and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 12, 2026

Howard O. Bernstein, P.C., Howard O. Bernstein, Shirin Chahal, Boulder,
Colorado; The Baumberger Law Firm, LLC, Robert D. Baumberger, Pueblo,
Colorado, for Plaintiffs-Appellants

Freeman Mathis & Gary, LLP, Robert J. Zavaglia, Jr., Chayla A. Witherspoon,
Denver, Colorado, for Defendant-Appellee Nancy DeLaCroix

Gorden Rees Scully Mansukhani LLP, John R. Mann, Melissa A. Wiese, Andrew
K. Lavin, Denver, Colorado, for Defendant-Appellee MetLife Auto & Home
Insurance Agency n/k/a Farmers General Insurance Agency, Inc.
Womble Bond Dickinson (US) LLP, Holly C. White, Elizabeth Michaels, Frances
Scioscia Staadt, Denver, Colorado, for Defendant-Appellee American Strategic
Corp. d/b/a Progressive Home

Troutman Pepper Hamilton Sanders LLP, Justin D. Balser, Andrea M. Hicks,
Irvine, California; Troutman Pepper Hamilton Sanders LLP, Timothy J. St.
George, Richmond, Virginia, for Defendant-Appellee Marshall & Swift/Boeckh,
LLC
¶1 This appeal stems from a dispute over an insurance policy

plaintiffs, Douglas and Amanda Mayfield, owned when Colorado’s

Marshall Fire destroyed their home. The Mayfields appeal the

district court’s orders awarding summary judgment to defendants,

Nancy DeLaCroix; MetLife Auto & Home Insurance Agency n/k/a

Farmers General Insurance Agency, Inc. (MetLife); American

Strategic Insurance Corp. d/b/a Progressive Home (Progressive);

and Marshall & Swift/Boeckh, LLC (MSB). For the following

reasons, we affirm.

I. Background

¶2 The Mayfields owned a home in Louisville, Colorado.

DeLaCroix, a licensed insurance agent, assisted the Mayfields in

obtaining homeowners’ insurance for this property from 2014 to

2019. In 2019, at the alleged recommendation of DeLaCroix, the

Mayfields changed their home insurance provider from MetLife to

Progressive. DeLaCroix represented that the Progressive policy

offered comparable coverage and assured the Mayfields that she

would add Progressive’s “50% Extended Replacement-Cost

Coverage” to protect them in the event of a total loss. DeLaCroix

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procured the 2019 policy, and the Mayfields paid the premium to

Progressive. DeLaCroix retired soon after.

¶3 In 2020 and 2021, the Mayfields renewed their homeowners’

insurance policy directly through Progressive. The Mayfields twice

asked a Progressive representative for a review of their policy but

did not discuss the terms of the policy with anyone. The policy at

issue here, purchased in July 2021, included dwelling coverage up

to $381,000 and other structure coverage up to $38,100.

Progressive based the coverage amounts on an estimate generated

by MSB’s reconstruction cost estimate software.

¶4 The Mayfields filed a claim with Progressive after the Marshall

Fire unfortunately destroyed their home on December 30, 2021.

Pursuant to the terms of the 2021 policy, Progressive issued

$419,100 to the Mayfields as insurance coverage for their home and

other lost structures — an amount that purportedly does not fully

cover rebuilding costs. The Mayfields learned at this time that their

policy did not include the “50% Extended Replacement-Cost

Coverage” DeLaCroix agreed, two years earlier, to add.

¶5 Premised on this omission, the Mayfields sued DeLaCroix for

negligence, negligent misrepresentation, and breach of fiduciary

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duty; Progressive for negligence, vicarious liability, coverage by

estoppel, and violations of the Colorado Consumer Protection Act

(CCPA), § 6-1-101 to -116, C.R.S. 2025; MetLife for vicarious

liability; and MSB for negligent misrepresentation. Defendants

moved for summary judgment, and the district court granted each

defendant’s motion on all claims. We conclude that the district

court did not err in its summary judgment awards.

II. Standard of Review

¶6 “Summary judgment is appropriate when the pleadings and

supporting documents establish 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.” Gibbons v. Ludlow, 2013 CO 49, ¶ 11. We

review de novo an order granting summary judgment, applying the

same standard as the district court to determine “whether a

genuine issue of material fact exists and whether the district court

correctly applied the law.” City & County of Denver v. Monaghan

Farms, Inc., 2023 COA 60, ¶ 20.

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III. MSB

A. Additional Background

¶7 MSB owns software that allows insurance providers to

estimate the baseline reconstruction cost of a property. One such

product, RCT Express, has roughly fifty different inputs that

describe features of a home. The RCT Express user manually

selects the inputs based on the unique characteristics of the home,

and the software provides a rebuilding cost estimate. Because the

estimate is based on the selected inputs, users are instructed to

carefully confirm the characteristics of the subject home and choose

appropriate inputs to arrive at an accurate estimate.

¶8 MSB licenses the RCT Express software to Progressive.

However, as relevant here, Progressive agents customize only

sixteen inputs during the quoting process. In May 2021, two

months before the policy renewal period, Progressive used RCT

Express to estimate the reconstruction cost of the Mayfields’ home.

The estimate — $381,000 — formed the basis of the policy at issue

and the corresponding premium payment.

¶9 The Mayfields sued MSB for negligent misrepresentation,

arguing that this estimate undervalued their property. The

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complaint alleged that MSB knew or should have known about the

possibility of undervaluation given its prior experience with wildfire

claims. The district court granted MSB’s motion for summary

judgment, concluding that MSB did not owe a duty of care to the

Mayfields and that reconstruction cost estimates are not

representations of fact. The Mayfields maintain that the district

court erred because MSB owed them a duty of care, which

precluded summary judgment in its favor. We are not persuaded.

B. Applicable Law and Analysis

¶ 10 To establish a negligence claim, the plaintiffs must first show

that the defendant owes them a duty of care. Turman v. Castle Law

Firm, LLC, 129 P.3d 1103, 1105 (Colo. App. 2006). Whether the

defendant owes this duty is a legal question determined by the

court. Id. To assert negligent misrepresentation, “the plaintiff must

demonstrate that the defendant supplied false information in a

business transaction and failed to exercise reasonable care . . . in

obtaining or communicating the information.” Bedard v. Martin,

100 P.3d 584, 592 (Colo. App. 2004).

¶ 11 The Mayfields provide no record support for the proposition

that MSB made a representation to them. On the contrary, the

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record shows that MSB never directly communicated with the

Mayfields. The Mayfields instead attempt to impute on MSB a duty

to guarantee that its licensees fully utilize the capabilities of its

software. By failing to discharge this duty, goes the argument, MSB

misrepresented the cost to rebuild the Mayfields’ home via

Progressive’s inadequate insurance quote. Because this attenuated

misrepresentation theory finds no support in our case law, we

affirm the district court’s order. See Barfield v. Hall Realty, Inc.,

232 P.3d 286, 290 (Colo. App. 2010) (“Negligent misrepresentation

occurs when one . . . ‘supplies false information for the guidance of

others . . . .’” (quoting Mullen v. Allstate Ins. Co., 232 P.3d 168, 174

(Colo. App. 2009)); see also Deines v. Atlas Energy Servs., LLC, 2021

COA 24, ¶¶ 11-13 (explaining that a plaintiff cannot recover under

a negligence theory unless the defendant caused the plaintiff’s

injury).

IV. DeLaCroix

A. Additional Background

¶ 12 In July 2019, during the annual insurance renewal period, the

Mayfields discussed their homeowners’ policy with DeLaCroix.

Because MetLife would soon cease offering homeowners’ insurance

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in Colorado, DeLaCroix recommended that the Mayfields switch

from MetLife to Progressive. DeLaCroix procured a quote from

Progressive that purportedly matched the coverage offered by

MetLife and stated that she would add a “50% Extended

Replacement-Cost Coverage” to the Progressive policy. This

extension would raise the coverage to $500,000 in the event of

complete property loss.

¶ 13 Relying on these representations, the Mayfields obtained the

Progressive policy on July 26, 2019. The policy, however, did not

contain the “50% Extended Replacement-Cost Coverage,” an

omission the Mayfields failed to notice. DeLaCroix retired in early

2020, and the Mayfields continued renewing this policy — with the

same terms — through a Progressive representative. Each year,

Progressive provided the Mayfields with a copy of the policy,

including a breakdown of their coverage. The Mayfields claim they

read the entire policy but maintain that they did not learn they

lacked the extended coverage until filing a claim in December 2021.

¶ 14 The Mayfields sued DeLaCroix, asserting that she negligently

failed to secure the type of coverage they sought for their property,

misrepresented the nature of the coverage provided, and breached

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her duty as a fiduciary. The third claim rested on the Mayfields’

assumption that DeLaCroix owed them enhanced duties because a

“special relationship” formed over the years. DeLaCroix sought

summary judgment on all three claims, which the district court

granted.

¶ 15 The court concluded that DeLaCroix had no duty to advise or

warn the Mayfields of the provisions in the 2021 policy, the

Mayfields’ reliance on DeLaCroix’s statement regarding additional

coverage was not justifiable because they received and reviewed a

copy of the policy, and DeLaCroix had no fiduciary relationship or

other special relationship with the Mayfields. We agree.

B. Applicable Law and Analysis

1. Negligence

¶ 16 To succeed on a negligence claim, the plaintiff must show that

the defendant owes a duty of care. Vigil v. Franklin, 103 P.3d 322,

325 (Colo. 2004). Breach, causation, and damages become relevant

to the analysis only if the defendant has a legally cognizable duty.

Id. “[W]hether a defendant owes a duty to a plaintiff is a question of

law to be determined by the court.” Id.

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¶ 17 The Mayfields unsuccessfully attempt to merge DeLaCroix’s

procurement of the 2019 policy with their renewal of the 2021

policy. While DeLaCroix may have had a duty regarding the 2019

policy, see Apodaca v. Allstate Ins. Co., 232 P.3d 253, 259 (Colo.

App. 2009) (“[W[hen an agent promises to obtain a specific type of

insurance requested by the insured, the agent assumes a duty to

act reasonably to procure the requested insurance . . . .”), aff’d, 255

P.3d 1099 (Colo. 2011), the 2019 policy was not in effect at the time

of the 2021 Marshall Fire. Rather, the Mayfields renewed their

homeowners’ policy through Progressive in July 2020 and July

2021, and they had the option to obtain additional coverage at

either time. After DeLaCroix retired in early 2020, she was not

involved in the 2021 policy renewal. Thus, she owed no duty to the

Mayfields vis-a-vis the 2021 policy. See Gorab v. Equity Gen.

Agents, Inc., 661 P.2d 1196, 1198 (Colo. App. 1983) (concluding

that the insured was not entitled to recover on negligence claims

brought against the agent when the agent was not a party to the

insurance contract).

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2. Negligent Misrepresentation

¶ 18 We apply and expand upon the legal principles outlined in

supra Part III.B. A negligent misrepresentation claim fails “if the

insured has a copy of his or her policy and can see that the alleged

oral misrepresentation contradicts the express terms of the policy.”

Colo. Pool Sys., Inc. v. Scottsdale Ins. Co., 2012 COA 178, ¶ 58.

¶ 19 The Mayfields received a physical copy of their policy in 2019

when they switched from MetLife to Progressive, and again in 2020

and 2021. When asked if he read the policy “cover to cover,” Mr.

Mayfield responded, “I did.” The policy stated the limits for dwelling

coverage and other structures, and the Mayfields acknowledged

that they never saw “50% Extended Replacement-Cost Coverage” in

writing. The Mayfields maintain that the policy is ambiguous, but

our review of the document reveals that it contains the information

necessary to ascertain the available coverage. Because the

Mayfields possessed and read a copy of the policy that contradicted

DeLaCroix’s oral statements, their claim for negligent

misrepresentation must fail. See id.; see also Usick v. Am. Fam.

Mut. Ins. Co., 131 P.3d 1195, 1201 (Colo. App. 2006) (the

policyholder has a duty to read the entire policy); Unigard Sec. Ins.

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Co. v. Mission Ins. Co. Tr., 12 P.3d 296, 300 (Colo. App. 2000) (“An

insured is charged with knowledge of the policy’s terms and is

therefore on notice that the scope of his, her, or its insurance

coverage is governed by the terms of the policy . . . .”).

3. Special Relationship

¶ 20 The Colorado insurance agent licensing statute provides that

“[e]very insurance producer who solicits or negotiates an application

for insurance of any kind on behalf of an insurer shall be regarded

as representing the insurer and not the insured.” § 10-2-401(1),

C.R.S. 2025. Insurance agents are not personal financial

counselors, and “it is well settled that agents have no continuing

duty to advise, guide, or direct a client to obtain additional

coverage.” Kaercher v. Sater, 155 P.3d 437, 441 (Colo. App. 2006).

Agents do have a duty to act with reasonable care, but “absent a

special relationship between the insured and the insurer’s agent,

that agent has no affirmative duty to advise or warn his or her

customer of provisions contained in an insurance policy.” Id. The

formation of a special relationship turns on whether there is

“entrustment,” i.e., whether the agent assumes additional

responsibilities beyond those of an ordinary agent. Id.

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¶ 21 The Mayfields argue that insurance agents may assume

additional duties that require the agent to exercise a heightened

level of skill, care, and diligence that is appropriate under the

circumstances for one in the insurance field. They point to Golden

Rule Insurance Corp. v. Greenfield, 786 F. Supp. 914, 916 (D. Colo.

1992), a federal case in which the court concluded that a client may

come to rely on an insurance agent’s special knowledge and

experience when the agent assists the client in completing an

insurance application. In Golden Rule, the agent met with the

client, and the two completed an application for health insurance

together. Id. at 915. The agent there assumed an advisory role

beyond that of an ordinary insurance agent, and this, in turn, gave

rise to a special relationship. See id.

¶ 22 We fail to see how this is analogous to the relationship

between DeLaCroix and the Mayfields. DeLaCroix procured an

estimate from Progressive and offered policy recommendations —

something a typical insurance agent might do. While DeLaCroix

served as the Mayfields’ agent for several years and stated the 2019

policy would contain certain coverage, this alone does not give rise

to a “special relationship” warranting a heightened standard of care.

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Kaercher, 155 P.3d at 441. Because DeLaCroix did not act within a

special relationship with the Mayfields, she cannot be held liable for

breaching an enhanced duty she never assumed.

V. Progressive

A. Additional Background

¶ 23 The Mayfields’ 2021 Progressive policy provided dwelling

replacement cost coverage up to $381,000 and additional coverage

for other structures, personal property, and loss of use. This was

the minimum amount Progressive offered based on the RCT Express

calculation. The policy specifically warned that “[t]he coverage

amount listed on your attached declaration page is only an estimate

of the replacement cost value of your insured property. It may not

be sufficient to replace your property in the event of a total loss.”

Indeed, the Mayfields could have secured additional coverage in

exchange for higher premiums. Consistent with the 2021 policy’s

terms, Progressive paid the Mayfields $419,100 for the loss of their

home and other structures on the property.

¶ 24 In their complaint, the Mayfields alleged that Progressive was

vicariously liable for DeLaCroix’s failure to add the extended

coverage, breached its duty to accurately estimate the cost of their

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property, and violated the CCPA by using “ambiguous and

misleading” language in the policy. The Mayfields also argued

coverage by estoppel. The district court granted summary

judgment to Progressive on all claims.

¶ 25 On appeal, the Mayfields challenge the court’s vicarious

liability, negligence, and CCPA findings. We do not address the

negligence claim because the Mayfields, for the first time on appeal,

argue that section 10-1-101, C.R.S. 2025, imposes a duty on

insurance providers to guard against inadequate insurance rates.

The district court did not decide the issue on these grounds, and we

therefore decline to review it. Frisco Lot 3 LLC v. Giberson Ltd.

P’ship, LLLP, 2024 COA 125, ¶ 92 (“In civil cases, we generally do

not review issues that are insufficiently preserved.”). We also do not

reach the CCPA contention because the Mayfields fail to identify

factual issues that precluded summary judgment and fail to include

record citations to support their argument that Progressive violated

the CCPA. See C.A.R. 28(a)(7); see also Am. Fam. Mut. Ins. Co. v.

Am. Nat’l Prop. & Cas. Co., 2015 COA 135, ¶ 42 (declining to

consider conclusory allegations that lacked development). We

otherwise affirm the summary judgment as to the vicarious liability

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claim. We also grant Progressive’s request for appellate costs but

deny its request for attorney fees.

B. Applicable Law and Analysis

1. Vicarious Liability

¶ 26 Vicarious liability rests on the existence of an agency

relationship to hold an employer liable for the torts of its employees

when they are acting within the scope of their employment. Semler

v. Hellerstein, 2016 COA 143, ¶ 47, rev’d on other grounds sub nom.,

Bewley v. Semler, 2018 CO 79. To find the employer liable, the

court must first find the employee liable. Carbajal v. Wells Fargo

Bank, N.A., 2020 COA 49, ¶ 27; Ochoa v. Vered, 212 P.3d 963, 966

(Colo. App. 2009). Because DeLaCroix was not a Progressive

employee at the time of the 2021 policy renewal, she is not liable for

claims relating to the 2021 policy. Therefore, the Mayfields’

vicarious liability claim necessarily fails. See Carbajal, ¶ 27.

2. Request for Appellate Costs and Fees

¶ 27 Progressive requests its “appellate costs and fees” under

C.A.R. 39. Because we affirm the judgment in Progressive’s favor,

we agree Progressive is entitled to its appellate costs upon

compliance with C.A.R. 39(c)(2). See C.A.R. 39(a)(2).

15
¶ 28 To the extent Progressive also requests its appellate attorney

fees, we deny its request. Other than citing C.A.R. 39 — which

authorizes only an award of costs, not attorney fees — Progressive

does not explain the basis for its fees request. Accordingly, we deny

its request. See In re Marriage of Newell, 192 P.3d 529, 538 (Colo.

App. 2008).

VI. MetLife

A. Additional Background

¶ 29 MetLife, an insurance agency with offices in Boulder,

Colorado, employed DeLaCroix and underwrote the Mayfields’ 2017

and 2018 policies. In July 2019, DeLaCroix informed the Mayfields

that MetLife doubled its premium rates and would soon stop

issuing homeowner policies. DeLaCroix then procured a

Progressive estimate for the Mayfields.

¶ 30 The Mayfields asserted vicarious liability against MetLife,

seeking to hold it responsible, under the 2021 policy, for

DeLaCroix’s alleged acts and omissions relating to the 2019 policy.

The district court found that the claim failed for lack of causation

and granted summary judgment in MetLife’s favor. We affirm.

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B. Applicable Law and Analysis

¶ 31 We apply the same legal principles outlined in supra Part

V.B.1. The Mayfields’ claim fails because MetLife cannot be held

vicariously liable for an agent who was not at fault. See Carbajal,

¶ 27; Semler, ¶ 48; Ochoa, 212 P.3d at 966. DeLaCroix did not

secure the Mayfields’ 2021 insurance policy, nor did MetLife employ

her when the operative policy was in effect. Because the Mayfields’

claim fails as a matter of law, the district court did not err in

granting MetLife’s summary judgment motion.

VII. Disposition

¶ 32 The summary judgments in favor of each defendant are

affirmed.

JUDGE KUHN and JUDGE SULLIVAN concur.

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