Nibert v. Geico Casualty Co

COLORADO COURT OF APPEALS 2017COA23

Court of Appeals No. 16CA0322
City and County of Denver District Court No. 15CV30089
Honorable Shelley I. Gilman, Judge

Denise G. Nibert,

Plaintiff-Appellee,

v.

Geico Casualty Company,

Defendant-Appellant.

JUDGMENT AND ORDER AFFIRMED
AND CASE REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE FOX
Román and Booras, JJ., concur

Announced February 23, 2017

Franklin D. Azar & Associates, P.C., Michael Born, Aurora, Colorado, for
Plaintiff-Appellee

Deisch, Marion & Klaus, P.C., Gregory K. Falls, Denver, Colorado, for
Defendant-Appellant

Burg Simpson Eldredge Hersh & Jardine, P.C., Thomas W. Henderson, Brian
K. Matise, Nelson Boyle, Englewood, Colorado, for Amicus Curiae The Colorado
Trial Lawyers Association
¶1 Geico Casualty Company (Geico Casualty) appeals the trial

court’s judgment entered against it on jury verdicts returned in

favor of Denise G. Nibert on her claims of common law bad faith

and violations of section 10-3-1116, C.R.S. 2016. Geico Casualty

also appeals the trial court’s order awarding Nibert her attorney

fees. We affirm.

I. Background

¶2 Nibert and her husband were injured when a car collided with

their motorcycle in October 2012, along Interstate Highway 25.1

Nibert fractured her tibia and fibula and required surgery. The

at-fault driver of the car was insured by Allstate Insurance

Company (Allstate), and Allstate paid Nibert its insurance limits of

$50,000, settling Nibert’s claims against the at-fault driver. Nibert

had underinsured motorist (UIM) coverage on the motorcycle

through Geico Indemnity Company (Geico Indemnity), and Geico

Indemnity paid Nibert her UIM coverage limit of $50,000 before

trial. Nibert had a separate UIM policy on the automobiles in her

household through Geico Casualty, with a $25,000 coverage limit,

1Nibert’s husband was the original plaintiff in the case but settled
his claims before trial.

1
which was secondary to the motorcycle policy. On July 3, 2014,

Geico Casualty offered Nibert $1500 to settle her claim under her

secondary automobile UIM coverage.

¶3 On January 8, 2015, Nibert sued Geico Casualty for breach of

contract, common law bad faith, and statutory delay under section

10-3-1116. After discovery and before trial, Geico Casualty paid

Nibert the $25,000 UIM coverage limit to settle Nibert’s claims for

breach of contract.

¶4 Following trial on Nibert’s remaining claims of bad faith and

statutory delay, a jury returned verdicts awarding Nibert $33,250 in

noneconomic damages on her bad faith claim and $25,000 for her

statutory delay claim. The trial court entered judgment on the

jury’s verdict for Nibert’s bad faith claim and entered judgment of

$50,000 as damages for Nibert’s statutory delay claim.

¶5 The trial court also granted Nibert’s motion for attorney fees,

awarding $118,875.30 in fees. The court rejected Geico Casualty’s

arguments regarding the reasonableness of Nibert’s attorney’s

hourly rates and scope of work performed and found that the

lodestar amount of $118,875.30 did not warrant any upward or

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downward adjustment based on the facts and subject matter of the

case.

II. Defense Theory Jury Instruction

¶6 Geico Casualty argues that the trial court erred in failing to

adequately instruct the jury on its theory of defense — specifically

that challenges to debatable claims are reasonable. We disagree.

A. Preservation and Standard of Review

¶7 The parties agree that Geico Casualty preserved its argument

for appeal.

¶8 We review jury instructions de novo to determine whether the

instructions as a whole accurately informed the jury of the

governing law. Clyncke v. Waneka, 157 P.3d 1072, 1078-79 (Colo.

2007). If a jury instruction correctly states the law, we review the

trial court’s decision to give the instruction for an abuse of

discretion. Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011). A

court abuses its discretion when its ruling is manifestly arbitrary,

unreasonable, unfair, or when it misapplies the law. Landmark

Towers Ass’n, Inc. v. UMB Bank, N.A., 2016 COA 61, ¶ 31.

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B. Law and Analysis

¶9 Rejecting a tendered instruction that properly instructs the

jury on the applicable law in the case and the evidence at issue,

which are not adequately covered elsewhere, is error. Schuessler v.

Wolter, 2012 COA 86, ¶ 26. However, it is not error for a trial court

to reject a party’s instruction when that instruction misstates the

law, is argumentative, improperly emphasizes specific evidence, or

when the court allows the party to otherwise argue its theory of the

case. Id.; Vista Resorts, Inc. v. Goodyear Tire & Rubber Co., 117

P.3d 60, 73-74 (Colo. App. 2004); see also People v. Merklin, 80 P.3d

921, 927 (Colo. App. 2003) (concluding that the trial court properly

rejected the defendant’s instruction where the defendant was not

precluded from presenting his theory of the case during closing

argument); People v. Renaud, 942 P.2d 1253, 1255-57 (Colo. App.

1996) (affirming the trial court’s refusal to give the defendant’s

requested instructions where the defendant was not deprived of his

opportunity to present his theory of the case).

¶ 10 Geico Casualty tendered the following instruction, which the

trial court refused to give to the jury: “It is reasonable for an

insurance company to challenge claims that are fairly debatable. A

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claim is fairly debatable if reasonable minds could disagree on the

outcome.” Instead, the trial court relied on the Colorado pattern

jury instructions governing common law bad faith and first-party

statutory claims. In relevant part, the court instructed the jury as

follows:

 Instruction 6 stated the elements of common law insurance

bad faith, including that Geico Casualty knew or recklessly

disregarded the fact that its conduct or position was

unreasonable.

 Instruction 7 provided the standards for unreasonable

conduct and unreasonable position, including the necessary

comparison to what “a reasonably careful insurance company”

would do under similar circumstances.

 Instruction 8 gave the elements of statutorily unreasonable

delay, including the requirement that the delay was “without a

reasonable basis.”

 Instruction 9 listed prohibited insurer practices found in

section 10-3-1104(1)(h), C.R.S. 2016.

The instructions did not state that it is reasonable for an insurance

company to challenge claims that are fairly debatable. See Vaccaro

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v. Am. Family Ins. Grp., 2012 COA 9M, ¶ 41 (stating that, under

Colorado law, it is reasonable for an insurer to challenge claims

that are fairly debatable).

¶ 11 However, the trial court allowed Geico Casualty to present

expert testimony regarding the “fairly debatable” issue and argue its

theory of defense to the jury. Geico Casualty’s expert, Jon Sands,

testified that, in his opinion, Geico Casualty acted reasonably in

handling Nibert’s UIM claim. Sands also testified about what it

means to have a claim that is fairly debatable and opined that

disagreements over the value of an insured’s claim are neither

uncommon nor unreasonable. In closing argument, Geico Casualty

reiterated Sands’ testimony, emphasizing to the jury that “he also

told you that it’s reasonable for insurers to challenge claims that

are fairly debatable.”

¶ 12 Geico Casualty argues that the ability to present its theory of

defense and argument related to the “fairly debatable” issue did not

adequately remedy the court’s rejection of their instruction. We

disagree. Contrary to Geico Casualty’s argument, the tendered

instruction went beyond the reasonableness of a challenge to a

claim that is fairly debatable. Instead, the instruction, as tendered,

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misstated the law by effectively conflating the reasonableness

elements of the common law bad faith claim and the statutory delay

claim by inquiring only into whether Nibert’s claim was fairly

debatable. Colorado law is clear that whether a claim is fairly

debatable is not the sole inquiry in a reasonableness analysis. See

Fisher v. State Farm Mut. Auto. Ins. Co., 2015 COA 57, ¶¶ 22-24

(cert. granted on other grounds June 6, 2016).

¶ 13 In Fisher, another division of this court concluded that “fair

debatability is not a threshold inquiry that is outcome

determinative as a matter of law,” but instead is a factor to be

considered in a broader evaluation of whether an insurer acted

reasonably. Id. at ¶ 24 (quoting Vaccaro, ¶ 42). The instruction in

this case, as tendered, overly emphasized the “fairly debatable”

issue, and, if allowed, could have directed the jury to find Geico

Casualty’s actions reasonable based purely on whether the claim

was fairly debatable — rather than upon application of a balancing

inquiry to more broadly determine reasonableness.

¶ 14 Geico Casualty further argues that the language in Fisher and

Vaccaro, concluding that fair debatability is merely a factor to be

considered in the ultimate reasonableness determination, is

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distinguishable where, as here, the issue arises in the context of a

trial, rather than during resolution of a dispositive motion.

However, the procedural posture is not relevant because the

ultimate determination that a trial court must make when ruling on

proffered jury instructions is whether the instruction adequately

instructs the jury on the relevant law. See Schuessler, ¶ 26.

Therefore, the conclusions in Fisher and Vaccaro that fair

debatability is not outcome determinative and is but a factor in the

broader reasonableness inquiry are instructive here.

¶ 15 Moreover, the “fairly debatable” issue is not relevant to a

statutory delay claim pursuant to section 10-3-1116. See Etherton

v. Owners Ins. Co., 829 F.3d 1209, 1226-27 (10th Cir. 2016)

(summarizing Colorado’s unreasonable delay law, agreeing with

cases limiting the “fairly debatable” issue to common law bad faith

claims, and opining that “under Colorado law, fair debatability can

be a relevant but not necessarily a determinative factor as to

whether the insurer acted reasonably”). Including Geico Casualty’s

proposed instruction — without further explanation of its purpose

and proper interpretation — in the jury instructions could have

prompted the jury to improperly weigh the defense theory. See id.

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The trial court avoided this outcome by refusing to give the

instruction.2

¶ 16 Our analysis is aided by the fact that Geico Casualty took full

advantage of the opportunity to articulate its “fairly debatable”

argument to the jury through its expert witness and during closing

argument. See Schuessler, ¶ 26. Geico Casualty’s remarks during

closing argument largely mirrored the language of the rejected

instruction. And the record supports the conclusion that the jury

was informed of Geico Casualty’s defense theory, further weighing

against an obligation that its defense theory be included as a formal

jury instruction. See Merklin, 80 P.3d at 927; Renaud, 942 P.2d at

1255-57.

2 Geico Casualty argued during oral argument that the trial court’s
refusal to give the proposed “fairly disputable” instruction stripped
Geico Casualty of its right to have the jury instructed on its theory
of defense. See Hansen v. State Farm Mut. Auto. Ins. Co., 957 P.2d
1380, 1385 (Colo. 1998). Here, the “fairly debatable” instruction
effectively conflated the reasonableness elements of both of Nibert’s
claims, and it is not the responsibility of the trial court, especially
in a civil action, to “craft appropriate theory of the case instructions
when a party’s own counsel declines to do so.” Id. at 1384.
Because the “fairly debatable” instruction, as tendered, was not an
accurate statement of the law, the trial court did not err in refusing
to provide it to the jury. See id.

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¶ 17 We conclude that the instructions, as given, adequately

instructed the jury of the applicable law and that the parties were

afforded ample opportunity to present their case theories to the

jury. The trial court’s ruling was neither manifestly arbitrary,

unreasonable, or unfair, nor a misapplication of the law. Landmark

Towers Ass’n, ¶ 31. Therefore, the trial court did not err in

rejecting Geico Casualty’s tendered instruction.

III. Scope of Remedy Under Section 10-3-11163

¶ 18 Geico Casualty argues that the trial court erred in awarding

Nibert recovery of two times her UIM benefit as a penalty under

section 10-3-1116. We disagree.

A. Preservation and Standard of Review

¶ 19 The parties agree that Geico Casualty preserved its argument

for appeal.

3 This issue is substantially similar to the issue on which the
supreme court granted certiorari in Barriga v. American Family
Mutual Insurance Co., (Colo. App. No 13CA1944, Oct. 8, 2015) (not
published pursuant to C.A.R. 35(f)) (cert. granted Aug. 22, 2016).
Until we have more guidance from the supreme court, we elect to
follow Barriga and Hansen v. American Family Mutual Insurance Co.,
2013 COA 173, ¶¶ 59-63, rev’d on other grounds, 2016 CO 46, ¶ 4.

10
¶ 20 We review a trial court’s statutory interpretation de novo.

Smith v. Exec. Custom Homes, Inc., 230 P.3d 1186, 1189 (Colo.

2010); Medina v. State, 35 P.3d 443, 452 (Colo. 2001).

¶ 21 When interpreting a statute, we try to give effect to the intent

of the General Assembly. Larrieu v. Best Buy Stores, L.P., 2013 CO

38, ¶ 12; Vista Ridge Master Homeowners Ass’n, Inc. v. Arcadia

Holdings at Vista Ridge, LLC, 2013 COA 26, ¶ 9. We look first to the

plain language of the statute, giving the language its commonly

accepted and understood meaning. Smith, 230 P.3d at 1189; Vista

Ridge Master Homeowners Ass’n, ¶ 9. Further, we construe

statutory provisions as a whole, giving effect to the entire statute.

Lombard v. Colo. Outdoor Educ. Ctr., Inc., 187 P.3d 565, 570 (Colo.

2008); Vista Ridge Master Homeowners Ass’n, ¶ 9. We look at the

context in which a statutory term appears and ascertain the term’s

meaning by reference to the words associated with it. Platt v.

Aspenwood Condo. Ass’n, Inc., 214 P.3d 1060, 1063 (Colo. App.

2009).

¶ 22 When the language of the statute is clear and unambiguous,

we give effect to its plain and ordinary meaning. Stamp v. Vail

Corp., 172 P.3d 437, 442 (Colo. 2007). However, when the language

11
is ambiguous — that is, reasonably susceptible of multiple

meanings — we may consider extrinsic indications of the General

Assembly’s intent. Id.; In re M.D.E., 2013 COA 13, ¶ 10.

B. Law and Analysis

¶ 23 Section 10-3-1116(1) provides: “A first-party claimant as

defined in section 10-3-1115 whose claim for payment of benefits

has been unreasonably delayed or denied may bring an action in a

district court to recover reasonable attorney fees and court costs

and two times the covered benefit.” Section 10-3-1116(4) specifies

that “[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.” See also Travelers Prop. Cas.

Co. of Am. v. Stresscon Corp., 2016 CO 22M, ¶ 16 (“[I]n addition to

contractual remedies for breach of an insurance contract, an

insurer’s bad faith breach also gives rise to tort liability.”).

“Damages awarded pursuant to this section shall not be recoverable

in any other action or claim.” § 10-3-1116(4).

¶ 24 Geico Casualty argues that these provisions show that the

statute is penal in nature and must be strictly construed in its

favor. This strict construction, Geico Casualty contends, leads to

12
the conclusion that the trial court erred in not allowing a setoff of

the ultimate statutory damages award, in the amount of the

$25,000 previously paid to Nibert on her UIM claim. We disagree.

¶ 25 Other divisions of this court have recently addressed this

issue. See Barriga v. Am. Family Mut. Ins. Co., (Colo. App. No.

13CA1944, Oct. 8, 2015) (not published pursuant to C.A.R. 35(f))

(cert. granted Aug. 22, 2016); Hansen v. Am. Family Mut. Ins. Co.,

2013 COA 173, ¶¶ 59-63, rev’d on other grounds, 2016 CO 46, ¶ 4.

We agree with and follow these divisions’ analyses and conclusions

that a statutory damages award of two times a delayed benefit —

even when, as here, that benefit has already been paid, resulting in

an effective payment to an insured of three times the contracted

benefit — is contemplated by the plain meaning of section

10-3-1116. See Hansen, 2013 COA 173, ¶ 61.

¶ 26 The language in subsections (1) and (4) of section 10-3-1116 is

plain. It authorizes an award of twice the covered benefit in

addition to any recovery of that benefit through another source.

Therefore, the trial court did not err when it awarded Nibert

$50,000 in damages on her successful statutory claim — which

represented two times the $25,000 UIM benefit from her policy with

13
Geico Casualty — even though Geico Casualty paid Nibert the

$25,000 UIM benefit before trial.

IV. Attorney Fees Pre-Appeal

¶ 27 Geico Casualty contends that the trial court erred in awarding

Nibert attorney fees incurred to prosecute the common law bad

faith and statutory delay claims, both before and after the date

when payment of the UIM benefit was delayed. Geico Casualty

argues that the window for attorney fees allowed pursuant to

section 10-3-1116 is limited to the period from the date the benefit

was first delayed to the date the benefit was actually paid.4 As a

matter of first impression, we reject the argument.

A. Preservation and Standard of Review

¶ 28 The parties agree that Geico Casualty preserved its claims for

appeal.

¶ 29 We review de novo a trial court’s interpretation of a statute.

Smith, 230 P.3d at 1189. “We review the district court’s decision to

4 The trial court found that “[u]nder [Geico Casualty’s] theory, the
relevant time period for recovery of attorney fees is from July 13,
2014, the date on which [Geico Casualty] made the $1500.00
underinsured offer, through August 11, 2015, the date on which
[Geico Casualty] paid the disputed $25,000 contract benefit to Ms.
Nibert.”

14
award attorney fees and costs for an abuse of discretion, but we

review the legal conclusions which provided the basis for that

decision de novo.” Jorgensen v. Colo. Rural Props., LLC, 226 P.3d

1255, 1259 (Colo. App. 2010).

B. Law and Analysis

¶ 30 “In the absence of an express statute, court rule, or private

contract to the contrary, attorney fees generally are not recoverable

by the prevailing party in a contract or tort action.” Allstate Ins. Co.

v. Huizar, 52 P.3d 816, 818 (Colo. 2002).

¶ 31 Section 10-3-1116(1) expressly authorizes a first-party

claimant “whose claim for payment of benefits has been

unreasonably delayed or denied [to] bring an action in a district

court to recover reasonable attorney fees and court costs[.]”

¶ 32 The trial court’s order confirmed that the jury found that Geico

Casualty’s delay in paying Nibert her contractual benefit lacked a

reasonable basis and awarded Nibert “all attorney fees incurred in

successfully pursuing her statutory claim and obtaining the

remedies available to her.” Geico argues that this construction

undermines the American Rule and fosters an unwarranted windfall

where, as here, the eventual attorney fee award is substantially

15
larger than an original contingency fee agreement would have been

if it were based on recovering only the contracted UIM benefit.

Nibert responds that Geico Casualty’s contention ignores the

legislative intent behind the expressed allowance of attorney fees in

section 10-3-1116(1) and that Geico Casualty’s interpretation of the

relevant portion of section 10-3-1116(1) would lead to the absurd

result of allowing insurance companies to avoid accountability and

attorney fee awards by paying delayed benefits until after litigation

is completed. The Colorado Trial Lawyers Association (the CTLA),

as amicus curiae, argues that section 10-3-1116 provides a clear

exception to the American Rule and clear authorization for an

award of “fees on fees” because the statute includes reasonable

attorney fees in the damage calculation. The CTLA argues that the

statute exists to curb abuses in the insurance industry and that the

interpretation Geico Casualty advocates could lead to unreasonable

litigation costs incurred by insureds in enforcing contractual

agreements and seeking to recover the expenses of battling large

insurance companies.

¶ 33 We agree with the trial court, Nibert, and the CTLA. Geico

Casualty offers no persuasive legal support for its assertions that

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section 10-3-1116(1) does not contemplate an award of attorney

fees incurred litigating anything other than a contractual claim or

incurred for the time before and after a delayed benefit accrues and

is paid. First, we disagree with Geico Casualty’s argument that

extra-contractual claim litigation should not be the basis for

attorney fees awarded under the statute. The statute itself

explicitly authorizes one of these extra-contractual claims — the

statutory delay claim. § 10-3-1116(1). Nothing in the statute’s

language limits an award of attorney fees to a contractual claim and

the only limit on the fees is that they must be reasonable — a

factual determination that the trial court made, with ample record

support. See Jorgensen, 226 P.3d at 1259. Moreover, the process

of litigating a common law bad faith claim and a statutory delay

claim are inescapably intertwined, as many of the relevant elements

are shared and much of an attorney’s work in a case is not limited

to one claim. See Fisher, ¶ 23.

¶ 34 The only support Geico Casualty provides is a case from the

Supreme Court of California, Cassim v. Allstate Ins. Co., 94 P.3d

513 (Cal. 2004). Not only is the analysis from Cassim not binding

on our court, see Wal-Mart Stores, Inc. v. United Food & Commercial

17
Workers Int’l Union, 2016 COA 72, ¶ 17 (we are not bound by the

decisions of the courts of other states), it is also factually

distinguishable. Cassim involved attorney fees associated with a

common law bad faith claim and did not involve a statute expressly

authorizing an award of attorney fees as damages. Cassim, 94 P.3d

at 528. The analysis in Cassim is therefore inapplicable to the

issues presently before us and its discussion is unhelpful.

¶ 35 We are further persuaded by Nibert’s suggestion that Geico

Casualty’s argument — that fees should not be awarded for a period

before a delay occurred or after eventual payment — would create

an unfair loophole through which insurance companies could avoid

paying full attorney fees under the statute. Geico Casualty’s

concern is addressed by the statute’s reference to “reasonable”

attorney fees. See § 10-3-1116(1). We agree with Nibert that Geico

Casualty’s argument regarding the date of delay is a factual issue

and was implicitly rejected in the trial court’s written order.

¶ 36 While the statute does not automatically authorize an award of

all attorney fees, the statute limits the award of attorney fees to only

those that are reasonable. This necessarily involves a factual

determination of relatedness of the sought fees to the delay for

18
which the fees are awarded. See Ravenstar LLC v. One Ski Hill Place

LLC, 2016 COA 11, ¶¶ 60-66. To be sure, it could be unreasonable

for a trial court to award fees incurred before a more obvious date of

delay, but we are not presented with that scenario here. The record

reflects that there were many dates — during the course of Nibert’s

dealings with the insurer after her injury — that a fact finder could

have rationally concluded was the date on which Geico Casualty

first unreasonably delayed its payment. We defer to the trial court’s

factual determinations absent clear error — which we conclude is

not present in the trial court’s implicit finding that the delay

accrued when Nibert was first forced to pursue her statutory claim.

See First Citizens Bank & Tr. Co. v. Stewart Title Guar. Co., 2014

COA 1, ¶ 13.

¶ 37 For the foregoing reasons, we conclude that the trial court did

not err in awarding Nibert attorney fees under section 10-3-1116(1)

without limiting those fees to work completed in prosecution of her

contract claim or to the period between the delay and the eventual

payment of the UIM benefit.

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V. Appellate Attorney Fees

¶ 38 Nibert requests an award of her attorney fees incurred

defending this appeal pursuant to section 10-3-1116 and C.A.R.

39.1. “When a party is awarded attorney fees for a prior stage of

the proceedings, it may recover reasonable attorney fees and costs

for successfully defending the appeal.” Melssen v. Auto-Owners Ins.

Co., 2012 COA 102, ¶ 75 (quoting Kennedy v. King Soopers Inc., 148

P.3d 385, 390 (Colo. App. 2006)). Therefore, we grant Nibert’s

request for appellate attorney fees. We remand to the trial court to

determine and award the amount of reasonable attorney fees and

costs that Nibert incurred in successfully defending the trial court’s

judgment. See id.

VI. Conclusion

¶ 39 The judgment and order are affirmed. The case is remanded

for the trial court to determine and award the amount of reasonable

attorney fees and costs Nibert incurred on appeal.

JUDGE ROMÁN and JUDGE BOORAS concur.

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