Stanisavljevic v. Travelers Insurance Company

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:22-cv-03287-RM-SBP
LJUBINKA STANISAVLJEVIC,
Plaintiff,
v.
THE STANDARD FIRE INSURANCE COMPANY d/b/a TRAVELERS INSURANCE
COMPANY,
Defendant.
ORDER GRANTING MOTION TO AMEND
Susan Prose, United States Magistrate Judge
Plaintiff Ljubinka Stanisavljevic has moved to amend her complaint to assert claims for
punitive damages against Defendant The Standard Fire Insurance Company, d/b/a Travelers
Insurance Company (“Standard Fire”). ECF No. 50 (“Motion to Amend” or “Motion”). The
undersigned considers the Motion pursuant to 28 U.S.C. § 636(b) and the Order Referring
Motion dated August 17, 2023. ECF No. 52. The court has reviewed the briefs, the entire docket,
and the applicable case law. For the reasons sets forth below, the court GRANTS the Motion to
Amend. 1
1 “Whether motions to amend are dispositive is an unsettled issue in the 10th Circuit.” Cano-
Rodriguez v. Adams Cty. Sch. Dist. No. 14, No. 19-cv-01370-CMA-KLM, 2020 WL 6049595, at
*1 n.2 (D. Colo. July 23, 2020), report and recommendation adopted, 2020 WL 4593219 (D.
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BACKGROUND
The court begins by chronicling the events pertinent to its evaluation of the Motion. The
litigation officially commenced on November 9, 2022, when Ms. Stanisavljevic filed the case in
Denver District Court, prompting Standard Fire to remove the case to this court. ECF No. 1 at 1–
2. In the operative complaint here, Ms. Stanisavljevic brings claims for underinsured motorist
(“UIM”) benefits, breach of contract, willful and wanton breach of contract, breach of the duty of
good faith and fair dealing, and undue delay or denial of insurance benefits in violation of Colo.
Rev. Stat. § 10-3-1116(1). Amended Complaint, ECF No. 45. Ms. Stanisavljevic alleges that, on
July 31, 2020, she sustained severe injuries when the car in which she was a passenger was
struck by another vehicle. Id. ¶¶ 5–6.
Ms. Stanisavljevic settled with the insurance carrier of the person who caused the
accident for that individual’s policy limit of $25,000. Id. ¶ 44. Ms. Stanisavljevic then sought to
obtain $250,000 in UIM benefits under a Standard Fire policy on the vehicle in which Ms.
Stanisavljevic was a passenger. Id. ¶¶ 12–13, 56. To date, Standard Fire has not paid the full
policy limit that Ms. Stanisavljevic claims “she is legally entitled to collect and [is] owed under
the policy.” Id. ¶¶ 52, 109. Ms. Stanisavljevic claims that “at no point prior to her retention of
Colo. Aug. 11, 2020). Courts in this District have treated orders granting motions to amend as
non-dispositive, but “many courts have held that a recommendation to deny a motion to amend
. . . should be viewed as a dispositive ruling because it precludes the filing of certain claims.”
Crocs, Inc. v. Effervescent, Inc., No. 06-cv-00605-PAB-KMT, 2021 WL 941828, at *2 n.1. (D.
Colo. Mar. 11, 2021); see also Bullock v. Daimler Trucks N. Am., LLC, No. 08-cv-00491-PAB-
MEH, 2010 WL 1286079, at *1 (D. Colo. Mar. 29, 2010) (observing that it “makes good sense”
to distinguish between allowing and denying an amendment in considering whether to use an
order or recommendation as a magistrate judge). Because this court finds that the Motion to
Amend should be granted, this court proceeds by order rather than recommendation.
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counsel did Standard ever ma[k]e her an offer,” and after that point, Standard offered her
$10,000. Reply at 14 (emphasis omitted).
In the Motion, Ms. Stanisavljevic seeks to amend her complaint to request relief in the
form of punitive damages against Standard Fire. See Proposed Amended Complaint, ECF No.
50-28 ¶¶ 168. Standard Fire opposes the Motion. Response, ECF No. 64. Ms. Stanisavljevic has
since replied. Reply, ECF No. 77.
LEGAL STANDARD
Under the law of the United States Court of Appeals for the Tenth Circuit, the court
ordinarily engages in a “single-tiered” analysis, assessing whether amendment is proper
under Rule 15(a) of the Federal Rules of Civil Procedure. Gorsuch, Ltd., B.C. v. Wells Fargo
Nat. Bank Ass’n, 771 F.3d 1230, 1240–42 (10th Cir. 2014); Pumpco, Inc. v. Schenker Int’l, Inc.,
204 F.R.D. 667, 668 (D. Colo. 2001). Under this analysis, “[t]he court should freely give leave
when justice so requires.” Fed. R. Civ. P. 15(a). 2 Whether to allow amendment is within the trial
court’s discretion. See Burks v. Okla. Publ’g Co., 81 F.3d 975, 978–79 (10th Cir. 1996); see also
Walker v. United Parcel Serv., Inc., 240 F.3d 1268, 1278 (10th Cir. 2001) (trial court has “broad
discretion to permit a party to serve a supplemental pleading”).
However, the amendment at issue here concerns exemplary damages, which is governed
by Colorado Revised Statute § 13-21-102. Coomer v. Lindell, No. 22-cv-01129-NYW-SKC,
2023 WL 4408254, at *7 (D. Colo. July 7, 2023) (recognizing that “courts in this District have
2 While this analysis typically applies when a party seeks to amend pleadings before the
expiration of the deadline set in the scheduling order and the Scheduling Order deadline for
joinder/amending pleadings passed on May 26, 2023, the Order carved out this kind of motion.
ECF No. 30 at 15. As such, Fed. R. Civ. P. 15(a) applies.
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held that § 13-21-102, rather than Rules 15(a) or 16(b), controls whether to permit the
amendment of a claim for exemplary damages”). Courts in this district consistently have found
that there is no direct conflict between this statute and the Federal Rules of Civil Procedure. See,
e.g., id. (finding that the application of § 13-21-102 “would not result in forum shopping or the
inequitable administration of the law”) (collecting cases). Even under Colo. Rev. Stat. § 13-21-
102, “the court may deny a motion to amend to add exemplary damages because of delay, bad
faith, undue expense, or other demonstrable prejudice”—which mirrors the Rule 15(a) standard.
Franklin D. Azar & Assocs., P.C. v. Executive Risk Indemnity, Inc., No. 22-cv-01381-RMR-
NRN, 2023 WL 7130144, at *2 (D. Colo. Oct. 10, 2023); see also Frank v. U.S. West, Inc., 3
F.3d 1357, 1365 (10th Cir. 1993) (“Refusing leave to amend is generally only justified upon a
showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive,
failure to cure deficiencies by amendments previously allowed, or futility of amendment.”);
Stamp v. Vail Corp., 172 P.3d 437, 449 (Colo. 2007) (“A trial court may properly deny a motion
to amend because of delay, bad faith, undue expense, or other demonstrable prejudice.”).
However, in this case, it appears that Standard Fire does not argue any of those grounds. See
Response.
Under Colo. Rev. Stat. § 13-21-102(1.5), a plaintiff cannot seek exemplary damages in
the initial pleading and may seek to amend the pleading to add an exemplary damages claim
“only after the exchange of initial disclosures pursuant to rule 26 of the Colorado rules of civil
procedure and the plaintiff establishes prima facie proof of a triable issue.” Exemplary damages
are permissible when “the injury complained of is attended by circumstances of fraud, malice, or
willful and wanton conduct[.]” Colo. Rev. Stat. § 13-21-102(1)(a). “Willful and wanton conduct
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is conduct that is “purposefully committed which the actor must have realized as dangerous,
done heedlessly and recklessly, without regard to consequences, or of the rights and safety of
others, particularly the plaintiff.” Colo. Rev. Stat. § 13-21-102(1)(b); see also Coors v. Sec. Life
of Denver Ins. Co., 112 P.3d 59, 66 (Colo. 2005) (citing Tri-Aspen Const. Co. v. Johnson, 714
P.2d 484, 486 (Colo. 1986); Frick v. Abell, 602 P.2d 852, 854 (Colo. 1979)).
In other words, conduct is willful and wanton if it is “‘a dangerous course of action’ that
is consciously chosen ‘with knowledge of facts, which to a reasonable mind creates a strong
probability that injury to others will result.” Stamp, 172 P.3d at 449 (finding evidence that a
snowmobile was traveling at so high a speed that it “lifted off of the ground as it crested the
blind knoll” sufficient for a prima facie showing of willful and wanton conduct) (quoting Steeves
v. Smiley, 354 P.2d 1011, 1014 (Colo. 1960) (holding that evidence of a driver’s decision to
travel at a high speed and to pass other cars at night on a single-lane highway, despite repeated
warnings from his passengers that he was driving too fast, was sufficient to present the question
of willful and wanton conduct to the jury in a wrongful death action)).
“Where the defendant is conscious of his conduct and the existing conditions and knew or
should have known that injury would result, the statutory requirements” are met. Coors, 112 P.3d
at 66; see also Blood v. Qwest Servs. Corp., 224 P.3d 301, 314 (Colo. App. 2009) (same).
“Simple negligence,” however, cannot support an award of exemplary damages. Blood, 224 P.3d
at 314. As for “malicious” conduct, see § 13-21-102(1)(a), such conduct refers to “‘an intention
or desire to harm another [usually] seriously through doing something unlawful or otherwise
unjustified’ or ‘revengeful or unfriendly feelings.’” Bonidy v. Vail Valley Ctr. for Aesthetic
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Dentistry, P.C., 232 P.3d 277, 286 (Colo. App. 2010) (quoting Webster’s Third New Int’l
Dictionary 1367 (2002)).
As to the requirement of a prima facie showing, see Colo. Rev. Stat. § 13-21-102(1.5)(a),
a plaintiff must demonstrate “a reasonable likelihood that the issue will ultimately be submitted
to the jury for resolution.” Stamp, 172 P.3d at 449 (quoting Leidholt v. Dist. Ct., 619 P.2d 768,
771 n.3 (Colo. 1980)). “Prima facie proof, like a proffer, is merely a facial showing sufficient to
prove a matter in the absence of contradictory evidence. It is akin to the showing required to
survive motions brought under Fed. R. Civ. P. 12 and 50.” Rosania v. Grp. O, Inc., No. 13-cv-
00398-MSK-BNB, 2014 WL 679884, at *3 n.4 (D. Colo. Feb. 20, 2014). “Prima facie evidence
is evidence that, unless rebutted, is sufficient to establish a fact.” Id. The evidence, which the
court views in the light most favorable to plaintiffs, must only be enough for a prima facie
showing of willful and wanton behavior, not enough to “defeat a motion for summary judgment
or to result in a jury verdict in Plaintiff’s favor.” Hendrickson v. Doyle, No. 14-cv-02013-WJM-
KLM, 2015 WL 2106225, at *3 (D. Colo. May 4, 2015). The plaintiff’s evidentiary burden on a
motion to amend pursuant to § 13-21-102 is “an admittedly low threshold.” Affordify, Inc. v.
Medac, Inc., No. 19-cv-02082-CMA-NRN, 2020 WL 6290375, at *5 (D. Colo. Oct. 27, 2020).
ANALYSIS
Ms. Stanisavljevic argues that she should be granted leave to add prayers for relief on
exemplary damages under Colorado law. Ms. Stanisavljevic asserts that she has established a
prima facie triable issue for an award of exemplary damages based on the following allegations
and evidence:
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1. 	Email correspondence with Standard Fire and MAC Legal regarding the location of
the Independent Medical Examination (“IME”).
Ms. Stanisavljevic alleges that she “detrimentally relied upon this misrepresentation [that
her IME needed to occur in Chicago and not Florida] by in fact traveling from Florida to
Chicago for this IME, at her own expense that has still not been reimbursed by Travelers to this
very day.” Motion at 6. Ms. Stanisavljevic alleges that Standard Fire “fraudulently convinced
[her] to attend” the IME. Id. at 11.
Ms. Stanisavljevic emailed James Burnham, Auto Liability Senior Technical Specialist
for Standard Fire, requesting that her IME take place as soon as possible since she would soon be
relocating to Florida to care for her mother. ECF No. 50-2. Mr. Burnham replied, “If you move
to Florida please advise so that the IME retention can be someone in that area.” ECF No. 50-3.
Hayleigh Lidbury, an attorney with Montgomery Amatuzio Chase Bell Jones, LLP (“MAC
Legal”), outside counsel retained by Standard Fire, asked Ms. Stanisavljevic whether she was
“still going back and forth between Chicago and Florida and what that schedule looks like for the
next couple of months,” to which Ms. Stanisavljevic replied that she would be in Florida in
December 2021 and Illinois in January 2022. ECF No. 50-4. Marta Garbowski, a paralegal with
MAC Legal, emailed Ms. Stanisavljevic to ask if select dates in January 2022 for an IME
appointment in Illinois would work for her, and Ms. Stanisavljevic responded that she needed to
be in Florida for a while longer and requested an IME in Florida. ECF No. 50-5. Ms. Grabowski
then emailed Ms. Stanisavljevic to inform her that “per the policy we must base the IME off the
residency of the claimant, therefore, the Chicago area. Do you have an idea of when you might
be returning to Chicago?” ECF No. 50-6. Ms. Stanisavljevic replied that she would return to
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Illinois “probably in late February/early March. If you can make an appointment for me, I will be
sure to be there for it. Any day will work, and I prefer an afternoon appointment please.” ECF
No. 50-6. Separately, Standard Fire considered an IME located in Illinois as more “beneficial” if
Ms. Stanisavljevic’s claims were ultimately litigated, which it anticipated. See ECF No. 50-11;
Response at 9; ECF No. 50-10.
In response, Standard Fire argues that Ms. Stanisavljevic “represented to Standard Fire
she was already planning to be in Illinois, which is why the IME was set to occur there in March
2022” and that “she did not submit any request or receipts for reimbursement until after litigation
commenced” and not until May 2023. Response at 8. Additionally, Standard Fire states that
“while the language in the IME scheduling email could have been worded better, . . . Standard
Fire can require that Plaintiff attend an IME in a location of its choosing.” Id. at 9.
2. 	Documentation alleging that Standard Fire failed to conduct a fulsome
investigation of Ms. Stanisavljevic’s claims arising under its policies by
refusing to pay for a Functional Capacity Evaluation (“FCE”).
Ms. Stanisavljevic claims that Standard Fire required a note from a medical provider
“placing her off work or providing work restrictions limiting her ability to work” in order to
evaluate her alleged lost wages (see ECF No. 50-14 at 7) while at the same time refusing to pay
for a Functional Capacity Evaluation (see ECF No. 50-3 at 2), which would have determined her
capacity to work (see ECF No. 50-13 at 12). Ms. Stanisavljevic alleges that she attempted to
obtain a note from her doctor regarding her capacity to work but was “told that she would have
to get an FCE with an outside provider, and that FCE would not be covered under Plaintiff’s
Medicaid insurance thereby making it cost-prohibitive for Plaintiff to obtain it herself.” Reply at
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12.
In response, Standard Fire provides notes from a call with Ms. Stanisavljevic, during
which an unnamed representative of the company advised her that “lost wages documentation is
in [the] process of being reviewed by accountant,” and Ms. Stanisavljevic stated that she “is
going to contact her doctor” about medical documentation regarding her ability to work. ECF
No. 64-7. Ms. Stanisavljevic contests this, claiming that “Standard never specifically requested
she provide such a note” from a doctor regarding her ability to work. Reply at 11. Standard Fire
also provides an email thread in which Ms. Lidbury requested a release from Ms. Stanisavljevic
to obtain her Social Security Disability Insurance application (see ECF No. 64-18), which would
have provided Standard Fire with documentation of her capacity to work. See Response at 11.
Standard Fire claims that Ms. Stanisavljevic did not provide a release for her SSDI application.
Id.
Ms. Stanisavljevic also alleges that Standard Fire failed to address her complaints of
migraines and headaches from the accident (see ECF No. 50-15 at 1) because it employed Dr.
Gregory Lopez, who is an orthopedic surgeon, not a neurologist, to conduct the IME and that
“nowhere in Dr. Lopez’s report does he address [her] complaints of migraines and headaches
from the accident.” Motion at 11. However, in the first page of the IME report, Dr. Lopez wrote,
“She also has headaches located at the base of her skull. She has tried NSAID’s without
sustained relief. She has had therapy for her neck which did help her symptoms, but not fully
alleviate them.” ECF No. 50-9 at 1.
Standard Fire responds that Ms. Stanisavljevic “also alleges that her cervical spine
suffered a lesion and caused numbness and tingling in her bilateral hands, which affects her
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ability to work,” presumably to demonstrate that it was appropriate for an orthopedic surgeon to
conduct the IME, and argues that she “has provided no case law to support her position that a
single expert must be retained to address every single complaint alleged by a plaintiff to satisfy
requirements” for a fulsome investigation. Response at 11; ECF No. 64-20 at 3. Standard Fire
also points to a Bodily Injury Worksheet to “show that Standard Fire did review and evaluate the
effect of Plaintiff’s claimed headaches on her claim for damages.” Response at 11; see ECF No.
124-1 at 2, 8.
Ms. Stanisavljevic also alleges that Standard Fire’s medical payments adjuster,
Christopher Kirkbride, decided to close her MedPay claim3 after “a few months of improperly
trying to delegate” claim handling responsibilities to her, which “not only caused [Ms.
Stanisavljevic] to be deprived of the MedPay benefits which she is owed, but he also caused
substantial delay in the investigation of the UIM claim.” Motion at 13–14.
In response, Standard Fire provides claim notes that say, “Discussed with [Ms.
Stanisavljevic] that she is waiting on bills and records to finalize Med Pay claim. Agreed to close
the claim for now. They/provider/IL Medicaid will send a demand for payment once Tx but
timelines are unk. Due to this, I am closing the claim and notating BRT/setting reserve. I ADV
that if anything changes to please let me know and I can reactive [sic] the claim. She
understood.” ECF No. 64-4 at 1.
3. 	A letter from Standard Fire’s outside counsel, MAC Legal.
Ms. Stanisavljevic alleges that Standard Fire has refused to provide requested documents
3 MedPay coverage insures the policyholder for any bodily injury “resulting from the ownership,
maintenance, or use of [a] motor vehicle,” regardless of fault. Colo. Rev. Stat. § 10-4-635(1)(a).
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and that it could essentially “launder” its claim handling through its outside counsel, MAC
Legal, “and completely avoid having to follow the law.” Motion at 14. She provides a letter from
MAC Legal, highlighting a section regarding a discovery dispute in which the law firm says,
“MAC-Legal is not subject to the requirements of 3 C.C.R. § 702-1:1-1-7(5)(E)(4) since the
statute applies to third-party administrators, title insurance, insurance agents, bail insurance,
companies or individuals that deal with issuance of insurance policies, and companies or
individuals that are subject to the authority of the insurance commissioner” and not the law firm.
ECF No. 50-21 at 2–3 (internal quotations omitted).
In response, Standard Fire asserts that MAC Legal was not acting as a claim adjuster and
that Ms. Stanisavljevic “did not cite to a single case where an insurer’s decision to retain outside
legal counsel prelitigation served as a basis for punitive damages.” Response at 13.
4. 	Statements regarding multiple sclerosis (“MS”).
Ms. Stanisavljevic provides screenshots of emails and claim notes from Mr. Burnham and
Ms. Lidbury stating that Ms. Stanisavljevic underwent medical treatment and incurred costs from
a prior medical condition of MS, even though “Mr. Burnham had medical records in his direct
possession at the time unequivocally showing that [Ms. Stanisavljevic] did not have MS.”
Motion at 16–17. Ms. Stanisavljevic alleges that these statements amount to an attempt to lower
the value of her claims. Id. An Independent Medical Examination dated March 4, 2022, included
Ms. Stanisavljevic’s medical records, which show that a November 6, 2020 MRI scan of her
brain did “not have any lesions that are suggestive of MS.” ECF No. 50-9 at 6. The medical
record with the MRI scans states, “Based upon the history and MRI findings of the brain, Ms.
Stanisavljevic does not have multiple sclerosis.” ECF 50-22 at 1–2. Standard Fire’s records
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referred to this finding: “MRI of the brain did not indicate MS.” ECF No. 50-12 at 3.
In response, Standard Fire claims that its payment to her included the cost of the MS
evaluation and that it “did not consider the MS testing related to the subject [accident].”
Response at 13–14. Standard Fire also points to a Bodily Injury Worksheet which refers to the
MS evaluation as a “[l]ikely unrelated bill[] and associated with MS,” at a cost of $5,000; the
worksheet further notes that Standard Fire “[w]ill need priors and medical evaluation on
reasonable care and issues with MS.” ECF No. 124-2. It is unclear from this document whether
Standard Fire actually made a payment to Ms. Stanisavljevic that included the cost of the MS
evaluation. The document reflects that Standard Fire set a reserve of over $42,471 for Plaintiff’s
medical bills––which did not include the MS evaluation––deducted $25,000 (without any
apparent explanation), and noted “net special damages” in the amount ($17,471) that Standard
Fire asserts it paid to Plaintiff in a “Fisher” payment4 that month. Id. at 5–7. This does not show
that Standard Fire paid for the MS evaluation. To the contrary, a reasonable jury could find the
document supports the opposite conclusion, that Standard Fire excluded the MS evaluation from
the medical expenses that it paid in May 2021. More importantly, Standard Fire does not address
why Mr. Burnham referred to Ms. Stanisavljevic receiving treatment for MS in claim notes and
in correspondence with MAC Legal while he was in possession of medical records showing that
she does not have MS, particularly when Standard Fire asserts that Plaintiff’s alleged MS was
4 In 2018, the Colorado Supreme Court held that “insurers have a duty not to unreasonably delay
or deny payment of covered benefits, even though other components of an insured’s claim may
still be reasonably in dispute.” State Farm Mut. Auto. Ins. Co. v. Fisher, 418 P.3d 501, 506
(Colo. 2018). Since that time, payments from insurers to insureds for amounts not in dispute are
referred to as “Fisher payments.”
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unrelated to the subject accident. See generally Response.
5. 	Testimony and correspondence regarding a nurse’s medical review of Ms.
Stanisavljevic’s claims, first revealed to her during discovery.
Ms. Stanisavljevic alleges that during discovery, she learned that the original UIM
adjuster assigned to her claim, Julie Belletire, had obtained an expert opinion regarding her
injuries from a nurse named Joan Redlinski. Motion at 18. Ms. Stanisavljevic alleges that she
first learned of this review during discovery, as it “was nowhere to be found in the files conveyed
by MAC,” id., when her counsel had previously requested “any other documents relevant to the
claim they my client provided [sic] or that you obtained on your own that I have not listed, I
would request those also” on June 14, 2022. ECF No. 50-23 at 2. Ms. Stanisavljevic provides an
email response from MAC Legal with a link to “all documents received from Ms. Stanisavljevic
and all medical records and billing previously received by [their] office” in regard to her claim,
ECF No. 50-24 at 1, as well as the deposition transcript in which Ms. Belletire responds
affirmatively to a question of whether she considered the nurse review to be material to her
handling of Ms. Stanisavljevic’s claim. ECF No. 50-13 at 4–5.
In response, Standard Fire claims that Ms. Stanisavljevic “fails to provide any legal
support for her position and asks this Court to reach conclusions that are inapposite to what other
courts in this jurisdiction have held when presented with the issue of whether an insurer is
required to share its internal reports with claimants.” Response at 14. Standard Fire contends that
it was under no obligation to produce the nurse review in response to Ms. Stanisavljevic’s
counsel’s June 14, 2022 letter, citing cases decided in this district. Id. at 14. As Standard Fire
quotes, “Plaintiff does not cite any case which suggests that an insurance company has a duty to
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share its engineer or adjuster reports with the insured as a matter of course. Likewise, the Court’s
independent research did not uncover such a case.” Id. (quoting 2506 6th St., LLC v.
WestGUARD Ins. Co., No. 21-cv-01673-WJM-MDB, 2022 WL 17335952, at *4 (D. Colo. Nov.
30, 2022)). However, the judge in that case granted the plaintiff’s motion to leave to amend its
complaint to add exemplary damages since “Plaintiff does not solely allege a failure to share
adjuster reports. Plaintiff paints a broader picture that suggests Defendants intentionally slow-
played the claim—whereby the failure to share reports was merely one facet of Defendants’
questionable conduct.” Here, too, Standard Fire’s failure to share the nurse’s medical report is
just one facet of Ms. Stanisavljevic’s claims.
6. 	Examples of Standard Fire’s affirmative defenses that allegedly amount to
“litigation gamesmanship” revealing “bad faith conduct.”
Ms. Stanisavljevic alleges that Standard Fire’s failure to mitigate defense, with respect to
the wage loss portion of Ms. Stanisavljevic’s insurance claim; comparative fault defense, with
respect to the vehicle collision; and assertion that her “claims are barred for an unexplained
failure to meet or comply with one or more conditions of the policy” demonstrate “bad faith
conduct” that warrants a trebling of punitive damages. Motion at 19–20. Ms. Stanisavljevic cites
the traffic accident report, which says that she was a passenger in the vehicle, see ECF No. 50-26
at 4, and the deposition transcript, in which Ms. Belletire agrees that she would “put zero percent
liability on Ms. Stanisavljevic” and Ms. Rosenblum, the driver of the vehicle in which Ms.
Stanisavljevic was passenger. ECF No. 50-13 at 9. Ms. Stanisavljevic also cites two cases, Am.
Guarantee & Liab. Ins. Co. v. King, 97 P.3d 161, 169 (Colo. App. 2003) (upholding trial court’s
finding of bad faith and awarding punitive damages where evidence demonstrated the insurer
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engaged in improper litigation conduct aimed at putting more pressure on the insured), and Tait
v. Hartford, 49 P.3d 337, 343 (Colo. App. 2001) (holding, in case where insurer’s counsel
“committed discovery violations in a manner that required the court to hold hearings to insure
compliance,” among other misconduct, that insured was not entitled to appellate attorney fees
“because, although insurer’s conduct prior to and during litigation has been found egregious, we
cannot say that its pursuit of this appeal has been frivolous”).
In response, Standard Fire rejects Ms. Stanisavljevic’s assertion that its failure to mitigate
damages defense is baseless because she “failed to provide any objective evidence of her
inability to work.” Response at 15; see ECF No. 64-7. With respect to the comparative fault
defense, Standard Fire responds that it “ultimately agreed during the scheduling conference to
withdraw the comparative negligence defense because it decided against filing a non-party at
fault designation. This Court has already addressed this issue by having Standard Fire file an
Amended Answer removing this defense.” Response at 16. Standard Fire distinguishes the
present matter from that in King by asserting that, among other things, the insurer in King “was
aware of and sought to exploit King’s vulnerable health; and that it joined the doctor as a
defendant to trigger King’s indemnification under the settlement agreement, thereby putting
more pressure on him.” Response at 16 (quoting King, 97 P.3d at 169).
Based on this evidence, Ms. Stanisavljevic argues, she has established prima facie proof
of a triable issue. See Motion at 4, citing Colo. Rev. Stat. § 13-21-102(1.5)(a).
For its part, Standard Fire argues that Ms. Stanisavljevic has not made the threshold
showing required by Colo. Rev. Stat. § 13-21-102 because she has not shown that she can
establish “beyond a reasonable doubt” her entitlement to punitive damages. Response at 5, citing
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Colo. Rev. Stat. § 13-25-127(2). However, that statute—which requires that “Exemplary
damages against the party against whom the claim is asserted shall only be awarded in a civil
action when the party asserting the claim proves beyond a reasonable doubt the commission of a
wrong under the circumstances set forth in section 13-21-102”—does not pertain to the present
matter, which is whether Ms. Stanisavljevic should be permitted leave to amend her complaint to
add a claim for exemplary damages, not whether she should be awarded exemplary damages.
Colo. Rev. Stat. § 13-25-127(2) (emphasis added). Ms. Stanisavljevic’s ability to make a
showing “beyond a reasonable doubt” is not the standard by which the court evaluates whether
she may amend her complaint to seek exemplary damages. See Hendrickson, 2015 WL 2106225,
at *3 (rejecting defendant’s argument the plaintiff needed to show a jury could award exemplary
damages against defendant beyond a reasonable doubt).
Rather, to meet the relatively low prima facie hurdle, Ms. Stanisavljevic need only
demonstrate “a reasonable likelihood that the issue [of exemplary damages] will ultimately be
submitted to the jury for resolution.” Stamp, 172 P.3d at 449; see also, e.g., White v. Santomaso,
No. 10-cv-01224-REB-KLM, 2011 WL 486234, at *3 (D. Colo. Feb. 7, 2011) (“The Court’s sole
function now is to determine whether Plaintiff has provided a plausible basis for exemplary
damages liability if her version of the facts and potential evidence are assumed to be true.”)
(citing Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)).
The court agrees with Ms. Stanisavljevic that her evidence with respect to the
correspondence about the IME location, the FCE denial, the statements regarding Ms.
Stanisavljevic undergoing treatment for MS, and the delayed disclosure of the nurse’s medical
review of Ms. Stanisavljevic’s claims suffices as prima facie evidence of willful and wanton
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conduct under Colorado law. In so concluding, the court expressly states that it does not base
this conclusion on the litigation decisions of counsel for Standard Fire, and explicitly rejects
Plaintiff’s assertion that counsel engaged in “litigation gamesmanship” demonstrative of “bad
faith” conduct—assertions unsupported by the record here.
Taking the remainder of Ms. Stanisavljevic’s evidence in the light most favorable to her,
those allegations and documents could support a reasonable jury finding that Standard Fire was
heedless of Ms. Stanisavljevic’s rights under the policy and under Colorado law, in imposing
requirements for her claims that arguably are inconsistent with the policy, Colorado law, or both,
as well as in falsely concluding that she suffered from multiple sclerosis despite having
documentation proving otherwise. See Franklin D. Azar & Assocs., 2023 WL 7130144, at *3
(granting motion for leave to amend to add exemplary damages after plaintiffs submitted
evidence that “Defendant has willfully ignored relevant and material policyholder
communications.”); Stoker v. State Farm Mut. Auto. Ins. Co., No. 19-cv-03569-NYW, 2021 WL
681444, at *12 (D. Colo. Feb. 22, 2021) (granting leave to amend to add exemplary damages
claim and finding that plaintiffs had established a prima facie case that an insurance company
acted recklessly and/or heedlessly for purposes of exemplary damages, even though plaintiffs
had not disclosed their treating provider or a cost estimate from a treating provider despite the
insurance company’s requests for such information); Sands v. Integon Nat’l Ins. Co., No. 18-cv-
00714-PAB-NYW, 2020 WL 8188184, at *7 (D. Colo. Mar. 9, 2020) (granting leave to amend
to add exemplary damages and finding a prima facie case that the defendant’s conduct in
processing plaintiff’s claim was willful and wanton when it provided plaintiff with false
information), report and recommendation adopted, 2020 WL 8188168 (D. Colo. Mar. 25,
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2020)); Argo v. State Farm Mut. Auto. Ins. Co., No. 18-cv-02059-RM-KMT, 2019 WL 4192110,
at *3 (D. Colo. Sept. 4, 2019) (granting leave to amend to add exemplary damages claim and
finding a prima facie case that the defendant insurance company improperly concluded that the
plaintiff suffered from a pre-existing condition because “[t]here is no indication that Plaintiff
acted in bad faith or with undue delay” and “Defendant has not shown, nor even argued, that
unfair prejudice will result from the amendment”); Cunningham v. Standard Fire Ins. Co., No.
07-cv-02538-REB-KLM, 2008 WL 4371929, at *2 (D. Colo. Sept. 23, 2008) (granting motion
for leave to amend to add exemplary damages claim after plaintiff argued, “Defendants’ conduct
was willful and wanton because they knew their own standards and the purpose for those
standards, and they did not follow them. The standards encouraged reasonable claims handling.
Defendants purposefully ignored the standards to the detriment of Plaintiff.”); Am. Econ. Ins. Co.
v. William Schoolcraft, M.D., P.C., No. 05-cv-01870-LTB-BNB, 2007 WL 160951, at *4 (D.
Colo. Jan. 17, 2007) (granting motion for leave to amend to add exemplary damages claim
because the insurance company’s “change of position demonstrates a prima facie case of
heedless or reckless disregard to the consequences or the rights of the insured”).
To be sure, Standard Fire has provided evidence giving rise to factual disputes between
the parties on these issues, but the court need not resolve these disputed issues of fact at this
juncture. See Schimek v. Owners Ins. Co., No. 16-cv-02197-PAB-STV, 2017 WL 3621833, at *6
(D. Colo. Aug. 23, 2017) (“Defendant thus, at best, has highlighted factual disputes between the
parties with regard to Plaintiff’s proposed claim for exemplary damages. The Court declines
Defendant’s invitation to resolve these disputed issues of fact.”).
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At present, the court is only concerned with whether the evidence, when viewed in the
light most favorable to Ms. Stanisavljevic, is sufficient to make out a prima facie case of willful
and wanton behavior for the purpose of allowing her to amend her “Complaint to include
exemplary damages, not whether such evidence is sufficient to defeat a motion for summary
judgment or to result in a jury verdict in [her] favor.” RCHFU, LLC v. Marriott Vacations
Worldwide Corp., No. 16-cv-1301-PAB-GPG, 2018 WL 3055772, at *4 (D. Colo. May 10,
2018). See also Am. Econ. Ins. Co. 2007 WL 160951, at *4 (“I am concerned here only with the
preliminary question of whether [the plaintiffs] have made a prima facie case under § 13-21-
102(1.5)(a), not with summary judgment.”). This is “a low burden relative to the burden of proof
at trial.” Reply, quoting Am. Ins. Co. v. Pine Terrace Homeowners Ass’n, 20-cv-00654-DDD-
MDB, 2022 WL 5240648, at *3 (D. Colo. Oct. 6, 2022).
In addition to this low prima facie hurdle, Standard Fire has not asserted that Ms.
Stanisavljevic’s Motion is unduly delayed; indicative of undue prejudice, bad faith, or dilatory
motive; a result of failure to cure deficiencies by amendments previously allowed; or is futile.
See, e.g., Frank, 3 F.3d at 1365; Bylin v. Billings, 568 F.3d 1224, 1229 (10th Cir. 2009).
In sum, having reviewed the evidence presented by Ms. Stanisavljevic and taking all
reasonable inferences in the light most favorable to her, for the reasons stated above, the court
finds that she has met her burden to assert a demand for exemplary damages, and therefore her
Motion to Amend should be granted. In so finding, the court only answers the “preliminary
question” of whether Ms. Stanisavljevic made a prima facie case, Am. Econ. Ins. Co., 2007 WL
160951, at *4, and does not pass on the merits of her claims or demand for exemplary damages.
Neither does the court pass on the merits of Standard Fire’s defenses or counterclaims.
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CONCLUSION
For the foregoing reasons, IT IS ORDERED that:
(1) Plaintiff Ljubinka Stanisavljevic’s Motion for Leave to Amend Complaint to Assert
Claim for Punitive Damages, ECF No. 50, is GRANTED;
(2) Plaintiff is ORDERED to file a clean version of the proposed Amended Complaint,
ECF No. 50-28, as a separate docket entry on or before April 11, 2024; and
(3) Defendant Standard Fire is ORDERED to file an answer to the Amended Complaint
within fourteen days of service of the Amended Complaint and Jury Demand, revised only to
address Ms. Ljubinka Stanisavljevic’s newly asserted requests for relief in the form of
exemplary damages.5
DATED: March 28, 2024 	BY THE COURT:
Susan Prose
United States Magistrate Judge
5 Rule 72 of the Federal Rules of Civil Procedure provides that within fourteen (14) days after
service of a Magistrate Judge’s order or recommendation, any party may serve and file written
objections with the Clerk of the United States District Court for the District of Colorado. 28
U.S.C. §§ 636(b)(1)(A), (B); Fed. R. Civ. P. 72(a), (b). Failure to make any such objection will
result in a waiver of the right to appeal the Magistrate Judge’s order or recommendation. See
Sinclair Wyo. Ref. Co. v. A & B Builders, Ltd., 989 F.3d 747, 782 (10th Cir. 2021) (firm waiver
rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119,
1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require
review, including when a “pro se litigant has not been informed of the time period for objecting
and the consequences of failing to object”).
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