v. State Farm Mutual Automobile Insurance Company

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
July 1, 2021

2021COA89

No. 20CA0720, Barnes v. State Farm Mutual Automobile
Insurance Company — Civil Procedure — Failure to State a
Claim Upon Which Relief Can be Granted — Motion to Strike —
Consolidation of Defenses in Motion; Insurance — Motor
Vehicles — Uninsured/Underinsured

In this declaratory judgment action, a division of the court of

appeals considers whether a district court erred by allowing a

defendant to file a C.R.C.P. 12(b)(5) motion to dismiss after it had

already filed a separate C.R.C.P. 12(f) motion to strike. The division

reasons that, although C.R.C.P. 12(g) requires consolidation of

C.R.C.P. 12 motions, any error by the district court in considering

the defendant’s successive motion was harmless under the

circumstances presented.

The division also considers plaintiff’s contention that the

district court erred by dismissing her complaint because she
asserted a plausible claim that a form prepared by the defendant

insurance company contained a false or misleading representation

regarding uninsured and underinsured motorist coverage. The

division rejects plaintiff’s contention that, by disclosing that such

coverage follows the insured person rather than the insured vehicle,

the defendant became legally obligated to further disclose

information about “stacking” coverage. The division affirms the

district court’s judgment dismissing the complaint.
COLORADO COURT OF APPEALS 2021COA89

Court of Appeals No. 20CA0720
City and County of Denver District Court No. 19CV32024
Honorable Eric M. Johnson, Judge

Julie Barnes,

Plaintiff-Appellant,

v.

State Farm Mutual Automobile Insurance Company, an Illinois Corporation,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE BROWN
Navarro and Casebolt*, JJ., concur

Announced July 1, 2021

John L. Springer, Aurora, Colorado, for Plaintiff-Appellant

Patterson Ripplinger, P.C., Franklin D. Patterson, Karl A. Chambers,
Greenwood Village, Colorado, for Defendant-Appellee

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
¶1 In this declaratory judgment action, Julie Barnes appeals the

district court’s judgment dismissing her complaint against State

Farm Mutual Automobile Insurance Company (State Farm) for

failure to state a claim upon which relief can be granted.

¶2 Barnes first contends that the district court erred by allowing

State Farm to file a C.R.C.P. 12(b)(5) motion to dismiss after it had

already filed a separate C.R.C.P. 12(f) motion to strike because

C.R.C.P. 12(g) requires consolidation of C.R.C.P. 12 motions.

Although we agree that the court erred, under the circumstances

discussed below, we conclude the error was harmless.

¶3 Barnes next contends that the district court erred by

dismissing her complaint because she asserted a plausible claim

that a State Farm form contained a false or misleading

representation — a “half-truth” — regarding uninsured and

underinsured motorist (UM) coverage. Specifically, she contends

that, by disclosing that UM coverage follows the insured person

rather than the insured vehicle, see § 10-4-609(1)(a), C.R.S. 2020,

State Farm became legally obligated to further disclose that an

insured who rejects UM coverage on one of multiple policies loses

the ability to “stack” available UM coverage. We reject this

1
contention and affirm the district court’s judgment dismissing her

complaint.

I. Background

¶4 Colorado law requires that an insurer offer UM coverage for

each automobile liability policy that it issues. § 10-4-609(1)(a). An

insured may reject such coverage in writing. Id.

¶5 State Farm issued Barnes two automobile liability insurance

policies — one for a 2006 Honda and one for a 1990 Geo. After

Barnes visited her insurance agent to discuss her automobile

coverage, State Farm sent Barnes a form titled “Colorado

Automobile Coverages Acknowledgment of Coverage Selection or

Rejection” (UM Rejection Form). Barnes signed the UM Rejection

Form, rejecting UM coverage on the Geo policy.

¶6 The two policies were in effect when Barnes sustained serious

bodily injuries in a car accident caused by another driver. Because

her damages exceeded the amount she recovered from the at-fault

driver, Barnes sought the $100,000 limit of UM coverage under the

Honda policy and $70,000 (of what she believed was a $100,000

limit) of UM coverage under the Geo policy. State Farm paid Barnes

$100,000, the maximum amount of UM coverage available under

2
the Honda policy; but because she had rejected UM coverage on the

Geo policy, State Farm declined to pay her anything more. Had

Barnes not rejected UM coverage on the Geo policy, she alleges that

she would have been able to “stack” the UM coverage, meaning that

she would have been entitled to UM coverage on both policies,

resulting in a total of $200,000 in available UM coverage.

¶7 Barnes filed a declaratory judgment action against State Farm,

seeking a declaration that the UM Rejection Form was invalid or

unenforceable. After Barnes filed an amended complaint, State

Farm filed a C.R.C.P. 12(f) motion to strike certain paragraphs of

the amended complaint or, alternatively, to require Barnes to state

facts to support the statements contained in those paragraphs. The

district court denied the motion to strike.

¶8 State Farm then filed a C.R.C.P. 12(b)(5) motion to dismiss the

amended complaint for failure to state a claim upon which relief

can be granted. Approximately two weeks later, State Farm filed an

answer to Barnes’ amended complaint. Barnes opposed the motion

to dismiss. After conducting a hearing, the district court granted

the motion and dismissed the amended complaint.

3
II. Analysis

A. Successive C.R.C.P. 12 Motions

¶9 Barnes first contends that the district court erred by allowing

State Farm to file a C.R.C.P. 12(b)(5) motion to dismiss after it had

already filed a separate C.R.C.P. 12(f) motion to strike. She argues

that, pursuant to C.R.C.P. 12(g), the court should have disallowed

the motion to dismiss because it was not joined with the earlier-

filed motion to strike. We perceive no reversible error.

1. Standard of Review

¶ 10 We interpret the Colorado Rules of Civil Procedure de novo,

DCP Midstream, LP v. Anadarko Petroleum Corp., 2013 CO 36, ¶ 24,

according to their commonly understood and accepted meanings,

Antero Res. Corp. v. Strudley, 2015 CO 26, ¶ 15. We do not add

words or provisions to a rule. Id. But we construe the rules

liberally “to effectuate their objective to secure the just, speedy, and

inexpensive determination of every case and their truth-seeking

purpose.” Id. (quoting DCP Midstream, ¶ 24); see also C.R.C.P. 1.

¶ 11 Because the Colorado Rules of Civil Procedure are patterned

on the Federal Rules of Civil Procedure, “we may also look to the

4
federal rules and decisions for guidance.” Garrigan v. Bowen, 243

P.3d 231, 235 (Colo. 2010).

¶ 12 On appeal, we disregard any error or defect in the proceedings

that did not affect the substantial rights of the parties. C.R.C.P. 61.

An error affects the substantial rights of the parties if it

“substantially influenced the outcome of the case or impaired the

basic fairness of the trial itself.” Bernache v. Brown, 2020 COA

106, ¶ 26 (quoting Laura A. Newman, LLC v. Roberts, 2016 CO 9,

¶ 24).

2. Applicable Law

¶ 13 C.R.C.P. 12(b) provides that every defense to a claim shall be

asserted in the responsive pleading, except that certain defenses,

including failure to state a claim upon which relief can be granted,

“may at the option of the pleader be made by separate motion.”

C.R.C.P. 12(c) provides that, “[a]fter the pleadings are closed . . . ,

any party may move for judgment on the pleadings.” And C.R.C.P.

12(f) authorizes a party to move to strike “any redundant,

immaterial, impertinent, or scandalous matter” from any pleading.

¶ 14 C.R.C.P. 12(g) states as follows:

5
A party who makes a motion under this Rule
may join with it any other motions herein
provided for and then available to that party.
If a party makes a motion under this Rule but
omits therefrom any defense or objection then
available to that party which this Rule permits
to be raised by motion, that party shall not
thereafter make a motion based on the defense
or objection so omitted, except a motion as
provided in section (h)(2) of this Rule on any of
the grounds there stated.

C.R.C.P. 12(h)(2), in turn, states as follows:

A defense of failure to state a claim upon
which relief can be granted . . . may be made
in any pleading permitted or ordered under
Rule 7(a), or by motion for judgment on the
pleadings, or at the trial on the merits.

3. Any Error by the District Court in Considering State Farm’s
Motion to Dismiss Was Harmless

¶ 15 Although we disagree with the district court’s interpretation of

C.R.C.P. 12(g), we conclude that any error by the district court in

considering State Farm’s second C.R.C.P. 12 motion was harmless.

¶ 16 In rejecting Barnes’ contention that State Farm was not

permitted to file a separate C.R.C.P. 12(b)(5) motion after it had

already filed a C.R.C.P. 12(f) motion, the district court explained,

[I]f you’re going to bring a motion under one
subparagraph of [Rule] 12, then you need to
bring everything that fits under that one
subparagraph, but that does not mean you

6
have to bring all Rule 12 motions. You can,
but you do not have to. So, I disagree with
that interpretation of Rule 12, and I will not
disallow [State Farm’s] motion under
[Rule]12(b)(5) for failure to state a claim just
because previously there had been a . . .
motion to strike under [Rule] 12(f).

(Emphasis added.)

¶ 17 We read the rule differently. C.R.C.P. 12(g) plainly states that

a party who makes a motion “under this Rule” but omits a then-

available defense or objection allowed to be raised by motion “shall

not thereafter” make a motion based on the omitted defense or

objection. Section (g) nowhere states that only defenses and

objections allowable under “one subparagraph” must be brought in

a single motion. Instead, section (g) generally prohibits serial

C.R.C.P. 12 motions regardless of which section or subsection

permits the defense or objection being asserted; it requires

consolidation of all C.R.C.P. 12 motions. C.R.C.P. 12(g); see also

Fed. R. Civ. P. 12(g)(2); Albers v. Bd. of Cnty. Comm’rs, 771 F.3d

697, 701 (10th Cir. 2014).

¶ 18 But C.R.C.P. 12(g) contains an express exception to the

general rule for “a motion as provided in section (h)(2) of this Rule

on any of the grounds there stated.” And section (h)(2) permits a

7
party to assert the defense of failure to state a claim upon which

relief can be granted, among other ways, “by motion for judgment

on the pleadings.” C.R.C.P. 12(h)(2). Thus, even if a party made an

earlier C.R.C.P. 12 motion, section (g) does not preclude it from

making a subsequent motion for judgment on the pleadings

asserting the defense of failure to state a claim. C.R.C.P. 12(g),

(h)(2); see also BSLNI, Inc. v. Russ T. Diamonds, Inc., 2012 COA 214,

¶ 11.

¶ 19 Indeed, if a defendant files a C.R.C.P. 12(b)(5) motion to

dismiss for failure to state a claim after it has filed its answer, the

court should treat the motion as a C.R.C.P. 12(c) motion for

judgment on the pleadings. See City of Aurora v. 1405 Hotel, LLC,

2016 COA 52, ¶ 16 n.3 (“Technically, ‘a post-answer [C.R.C.P.

12(b)(5)] motion is untimely and . . . some other vehicle, such as a

motion for judgment on the pleadings or for summary judgment,

must be used to challenge the plaintiff’s failure to state a claim for

relief.’” (quoting 5B Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 1357, at 408 (3d ed. 2004))); BSLNI, Inc.,

¶ 11 (“[W]hen filed after an answer, a defendant’s motion to dismiss

for failure to state a claim upon which relief can be granted is

8
properly addressed as a motion for judgment on the pleadings

under C.R.C.P. 12(c).”); Shaw v. City of Colorado Springs, 683 P.2d

385, 387 (Colo. App. 1984) (affirming trial court’s ruling on

defendant’s “motion to dismiss” although motion “more accurately

constituted a motion for judgment on the pleadings”).

¶ 20 Barnes argues, however, that the court could not have treated

State Farm’s motion as one for judgment on the pleadings because

State Farm filed the motion before it filed its answer. It is true that

C.R.C.P. 12(c) permits a motion for judgment on the pleadings only

“[a]fter the pleadings are closed.” See 1405 Hotel, LLC, ¶ 16 n.3

(noting that trial court could not have considered defendant’s

motion under C.R.C.P. 12(c) where plaintiffs had not responded to

the defendant’s counterclaims when the motion was filed). But

before Barnes even responded to the motion, State Farm filed its

answer and the pleadings closed, effectively curing any procedural

defect caused by the timing of the motion relative to the answer.

And, because the standard for resolving a motion for judgment on

the pleadings is consistent with that employed in resolving a motion

to dismiss, BSLNI, Inc., ¶ 13, requiring State Farm to file a new

motion for judgment on the pleadings after it filed its answer would

9
have served no practical purpose, see Walzer v. Muriel Siebert & Co.,

447 F. App’x 377, 384 (3d Cir. 2011). It also would have been

antithetical to the purpose of the civil rules “to secure the just,

speedy, and inexpensive determination of every action.” C.R.C.P.

1(a). See also In re Apple iPhone Antitrust Litig., 846 F.3d 313, 318

(9th Cir. 2017) (“Denying late-filed [Fed. R. Civ. P.] 12(b)(6) [the

federal counterpart to C.R.C.P. 12(b)(5)] motions and relegating

defendants to the three procedural avenues specified in Rule

12(h)(2) can produce unnecessary and costly delays, contrary to the

direction of Rule 1.”), aff’d sub nom. Apple Inc. v. Pepper, 587 U.S.

___, 138 S. Ct. 2647 (2018).

¶ 21 To be clear, there may be circumstances in which a trial

court’s erroneous consideration of serial C.R.C.P. 12 motions may

affect the substantial rights of the parties and warrant reversal.

But in the circumstances presented here, any technical error by the

district court in considering State Farm’s successive motion to

dismiss was harmless. See Albers, 771 F.3d at 704 (concluding any

error by district court in considering the defendant’s second motion

to dismiss was harmless because the same argument could have

been presented in a motion for judgment on the pleadings); Walzer,

10
447 F. App’x at 384 (any technical error in entertaining the

defendants’ successive motion to dismiss was harmless).

B. Dismissal of the Complaint

¶ 22 Barnes next contends that the district court erred by

dismissing her complaint. We disagree.

1. Standard of Review and Applicable Law

¶ 23 Whether we treat State Farm’s motion as a motion to dismiss

or as a motion for judgment on the pleadings, we review the district

court’s order de novo, employing the same standards as the district

court. See Melat, Pressman & Higbie, L.L.P. v. Hannon L. Firm,

L.L.C., 2012 CO 61, ¶¶ 16-17. The standard we use to review a

motion for judgment on the pleadings is consistent with the

standard for a motion to dismiss. BSLNI, Inc., ¶ 13.

¶ 24 In evaluating a C.R.C.P. 12(b)(5) motion to dismiss for failure

to state a claim, we accept as true the factual allegations in the

complaint and, viewing them in the light most favorable to the

plaintiff, determine whether the complaint states a plausible claim

for relief. Andres Trucking Co. v. United Fire & Cas. Co., 2018 COA

144, ¶ 14 (citing Warne v. Hall, 2016 CO 50, ¶¶ 9, 24). “A claim

has facial plausibility when the plaintiff pleads factual content that

11
allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). We need not accept as true legal

conclusions masquerading as factual allegations. Id.; Warne, ¶ 9.

¶ 25 Similarly, in evaluating a C.R.C.P. 12(c) motion for judgment

on the pleadings, we construe the allegations of the pleadings

strictly against the movant, consider the factual allegations in the

complaint as true, and grant the motion only if the matter can be

determined on the pleadings. Melat, Pressman & Higbie, ¶ 17.

2. The District Court Properly Dismissed the Amended Complaint

¶ 26 The UM Rejection Form Barnes signed provides, in relevant

part, as follows:

Uninsured Motor Vehicle Coverage provides
protection for persons insured who are legally
entitled to recover damages for bodily injury,
sickness, or disease, including death, from
owners or operators of either uninsured motor
vehicles or underinsured motor vehicles. The
named insured may reject such coverage by
submitting written rejection to the insurer.

Uninsured Motor Vehicle Coverage for bodily
injury, sickness, or disease, including death,
selected on one policy insuring a motor vehicle
owned and insured by you or any family
member who resides in your household will
apply to any accident in which the selected

12
Uninsured Motor Vehicle Coverage is payable
for that bodily injury, sickness, or disease,
including death. The described vehicle on that
one policy need not be involved in the accident
for Underinsured Motor Vehicle Coverage to
apply.

¶ 27 In her amended complaint, Barnes sought a declaration that

the UM Rejection Form was invalid or unenforceable because the

information contained in the second paragraph quoted above

constituted a false or misleading representation.1 Barnes concedes

that the second paragraph is a truthful statement regarding how

UM coverage works. But she contends that, once State Farm

communicated the information in the second paragraph, it had an

affirmative duty to also disclose “the Stacking Information,” which

she defined in her amended complaint as

the opportunity that an insured has to
aggregate or combine the UM coverage limits
on two or more separate automobile or motor
vehicle liability insurance policies for the
purpose of increasing the total amount of
available UM coverage that will apply to any
accident where an insured sustains bodily
injury as the result of the fault of the driver or
operator of an uninsured or underinsured

1 Barnes also sought a declaration that the UM Rejection Form was
void as against public policy, but she did not allege any facts in
support of that requested declaration and she does not raise the
issue on appeal.

13
motor vehicle and the primary policy provides
inadequate coverage to fully compensate the
insured for his or her bodily injury.

She contends that State Farm was required to advise her that, by

rejecting UM coverage on a policy, she loses the ability to stack her

UM coverage and reduces the total amount of UM coverage available

to her. In the absence of the Stacking Information, Barnes argues,

the second paragraph creates a false or misleading impression — a

“half-truth” — that if an insured rejects UM coverage on all but one

of her multiple policies, she will be left with the same amount of UM

coverage but at a reduced cost.

¶ 28 To establish a claim for fraudulent misrepresentation, a

plaintiff must prove that (1) the defendant made a fraudulent

misrepresentation of material fact; (2) the plaintiff relied on the

misrepresentation; (3) the plaintiff had a right to rely on or was

justified in relying on the misrepresentation; and (4) the plaintiff’s

reliance resulted in damages. Rocky Mountain Expl., Inc. v. Davis

Graham & Stubbs LLP, 2018 CO 54, ¶ 53.

¶ 29 Relying on the Restatement (Second) of Torts § 529 (Am. Law

Inst. 1977), Barnes contends that the second paragraph of the UM

Rejection Form constitutes a fraudulent misrepresentation because

14
it is a “half-truth.” Section 529 of the Restatement provides: “A

representation stating the truth so far as it goes but which the

maker knows or believes to be materially misleading because of his

failure to state additional or qualifying matter is a fraudulent

misrepresentation.”

¶ 30 To establish a claim for fraudulent concealment, a plaintiff

must prove (1) concealment of a material fact that in equity and

good conscience should be disclosed; (2) knowledge on the part of

the party against whom the claim is asserted that such a fact is

being concealed; (3) ignorance of that fact on the part of the one

from whom the fact is concealed; (4) the intention that the

concealment be acted upon; and (5) action on the concealment

resulting in damages. Rocky Mountain Expl., Inc., ¶ 56.

¶ 31 To succeed on a claim for fraudulent concealment or

nondisclosure, a plaintiff must show that the defendant had a duty

to disclose the material information. Id. Whether the defendant

has a duty to disclose a particular fact is a question of law we

decide de novo. Poly Trucking, Inc. v. Concentra Health Servs., Inc.,

93 P.3d 561, 564 (Colo. App. 2004).

15
¶ 32 Generally, a defendant has a duty to disclose material facts

that in equity or good conscience should be disclosed. Id. A party

to a business transaction has a duty to exercise reasonable care to

disclose to the other party, as relevant here, “matters known to him

that he knows to be necessary to prevent his partial or ambiguous

statement of the facts from being misleading.” Restatement

(Second) of Torts § 551(2)(b); see also Poly Trucking, 93 P.3d at 564;

Berger v. Sec. Pac. Info. Sys., Inc., 795 P.2d 1380, 1383 (Colo. App.

1990) (“[A] party has a duty to disclose if he has stated facts that he

knows will create a false impression unless other facts are

disclosed.”).

¶ 33 It is unclear to us whether the claim underlying Barnes’

request for declaratory judgment is a claim for fraudulent

misrepresentation or fraudulent concealment. Either way, the

dispositive question is the same: Is the second paragraph of the UM

Rejection Form misleading in the absence of information about an

insured’s ability to stack UM coverage on multiple policies? If the

answer is no, then State Farm did not make a fraudulent

misrepresentation of material fact (resulting in Barnes’ failure to

state a claim for fraudulent misrepresentation) and did not have a

16
duty to disclose additional information (resulting in Barnes’ failure

to state a claim for fraudulent concealment). For two reasons, we

answer this question in the negative.

¶ 34 First, the second paragraph of the UM Rejection Form is a

neutral, accurate statement of the law regarding how UM coverage

applies. See § 10-4-609(1)(a) (requiring insurers to give customers

an option to purchase UM coverage “for the protection of persons”);

see also DeHerrera v. Sentry Ins. Co., 30 P.3d 167, 176 (Colo. 2001)

(“We hold that the language of the UM/UIM statute and the purpose

of that statute require that UM/UIM insurance apply to an insured

person when injured by a financially irresponsible motorist,

irrespective of the vehicle the injured insured occupies at the time

of injury.”); Mullen v. Allstate Ins. Co., 232 P.3d 168, 172 (Colo. App.

2009) (“When one vehicle is insured in a single-vehicle policy, the

UM/UIM coverage applies to the insured person who is injured

‘irrespective of the vehicle the injured insured occupies at the time

of the injury.’” (quoting DeHerrera, 30 P.3d at 176)); Briggs v. Am.

Nat’l Prop. & Cas. Co., 209 P.3d 1181, 1184 (Colo. App. 2009) (UM

coverage follows the person “in any vehicle they occupy when

injured, no matter who owns the vehicle or whether it is insured on

17
the owner’s policy.”). The second paragraph is not ambiguous or

misleading regarding its topic.

¶ 35 Second, the Stacking Information that Barnes argues State

Farm should have disclosed is unrelated to the subject covered by

the second paragraph, so the second paragraph does not amount to

a “half-truth” — either about its subject or about stacking. An

insurance policy is a contract, which should be interpreted

consistently with the well-settled principles of contractual

interpretation. Allstate Ins. Co. v. Huizar, 52 P.3d 816, 819 (Colo.

2002). Our goal is to give effect to the contracting parties’

intentions and reasonable expectations. Thompson v. Md. Cas. Co.,

84 P.3d 496, 501 (Colo. 2004). To ascertain the parties’ intent, we

look to the plain language of the policy and give the words their

plain, generally accepted meanings, unless the policy indicates that

another meaning is intended. Owners Ins. Co. v. Dakota Station II

Condo. Ass’n, 2019 CO 65, ¶ 32.

¶ 36 As noted, the second paragraph addresses the unique nature

of UM coverage following the person insured in any vehicle they

occupy when injured. This is a distinct concept from “stacking,”

which is defined by section 10-4-402(3.5), C.R.S. 2020, as

18
“aggregating, combining, multiplying, or pyramiding limits of

separate policies providing uninsured and underinsured motorist

coverage as provided in section 10-4-609.”

¶ 37 In her amended complaint, Barnes alleged that the second

paragraph,

by informing the named insured that UM
coverage on one policy will apply to any
accident and that the vehicle described in the
policy need not be involved in the accident,
without also informing the named insured
about the Stacking Information and the overall
UM coverage that would be lost to an insured
if the UM Rejection Form was signed, created
the false and/or materially misleading
impression that no benefit would be derived
from having UM coverage on more than one of
multiple policies and that by having UM
coverage on one of multiple policies any
insured would have the same total amount of
available UM coverage, which would apply to
any accident, but at a reduced cost.

¶ 38 But the second paragraph says nothing about the benefits or

detriments of selecting or rejecting UM coverage on multiple

policies. It does not suggest that, by rejecting UM coverage on one

policy, the insured would be entitled to the same total amount of

UM coverage at a reduced cost (i.e., without paying a premium).

Barnes’ interpretation of the second paragraph is not reasonable.

19
See Weaver v. State Farm Mut. Auto. Ins. Co., Civ. A. No. 17-cv-

02208-MEH, 2018 WL 1522610, *4 (D. Colo. Mar. 27, 2018)

(unpublished opinion) (reasoning that the same language at issue

here “does not disclose the positive or negative consequences of

rejecting UM coverage,” but instead “accurately describes . . . the

nature of UM insurance”); see also Huizar, 52 P.3d at 819

(“[S]trained constructions should be avoided.”).

¶ 39 The only Colorado case to address section 529 of the

Restatement (Second) of Torts, the section on which Barnes relies

most heavily, is Eckley v. Colorado Real Estate Commission, 752

P.2d 68 (Colo. 1988). In Eckley, a disbursement agreement for the

sale of a lounge authorized the real estate broker who drafted the

agreement to use funds to pay “for the whiskey, wine and beer,” but

the funds were actually used to bring the premises at issue “into

compliance.” Id. at 72. So, “the fact that payments were made . . .

that were of a different nature from those listed in the agreement

made the disbursement agreement misleading.” Id. at 77. The

subject of the representation and the subject of the omission were

the same — categories of items for which funds would be used.

20
Under such circumstances, the partial or incomplete representation

regarding disbursement of funds was misleading.

¶ 40 Similarly, in Kannavos v. Annino, 247 N.E.2d 708, 713 (Mass.

1969), the court held that a seller had made a deceptive disclosure

when it advertised to investors that houses were being rented to the

public as multi-dwelling properties without revealing that multi-

dwelling use for houses actually violated the local zoning ordinance.

Thus, the subject of the representation and the subject of the

omission were the same — use of the buildings. The court clarified

that if the seller had been silent regarding how the property could

be used, it would not have made any misrepresentation. Id. at 711.

¶ 41 Likewise, in Junius Construction Co. v. Cohen, 178 N.E. 672,

674 (N.Y. 1931), the court held that, because a seller had truthfully

informed a prospective buyer that certain streets would bisect the

tract of land for sale, the seller could not “stop halfway” by failing to

mention that another street also was projected to do the same. The

court clarified that the seller was not under a duty to mention the

projected street at all. Id. But because the seller disclosed certain

projected streets without mentioning a similar street, its

representation was misleading. Id. Again, the subject of the

21
representation and the subject of the omission were the same —

projected streets affecting the property.

¶ 42 Here, in contrast to the cases cited by Barnes, the subject of

State Farm’s representation and the subject of the alleged omission

were different. State Farm did not make any representations about

stacking. Instead, the UM Rejection Form explained that UM

coverage follows the person and not the vehicle. If State Farm had

failed to disclose something related to that subject, such as a

circumstance under which the UM coverage would not follow the

person, Barnes might have validly claimed misrepresentation. But

whether Barnes is entitled to stack UM coverage on multiple

policies in the event of an accident is a different concept from the

personal nature of UM coverage. The fact that stacking is possible

does nothing to undermine the content of the second paragraph of

the UM Rejection Form. What State Farm included in the UM

Rejection Form is qualitatively different from the Stacking

Information Barnes claimed it should have disclosed.

¶ 43 So, even assuming the truth of the allegations in the amended

complaint, Barnes has failed to state a plausible claim for relief.

She failed to allege facts that would allow us to draw the reasonable

22
inference that the second paragraph of the UM Rejection Form was

a “half-truth” amounting to a fraudulent misrepresentation,

resulting in her failure to state a claim for fraudulent

misrepresentation. And she failed to allege facts establishing that

State Farm had a legal duty to disclose additional information with

respect to the second paragraph of the UM Rejection Form,

resulting in her failure to state a claim for fraudulent concealment.

The district court did not err by dismissing her complaint.2

III. Conclusion

¶ 44 We affirm the district court’s judgment dismissing Barnes’

amended complaint.

JUDGE NAVARRO and JUDGE CASEBOLT concur.

2 Barnes made six interrelated arguments challenging the district
court’s order dismissing her complaint. Because we have affirmed
on the basis that Barnes failed to allege facts to support at least one
element of either claim underlying her request for declaratory
judgment, we need not address her remaining contentions.

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