26 CO 40, 24SC440 Progressive Direct Ins. v. Ortiz, Andrew

OCR transcription for search; preserved printed pages are authoritative

The opinion summaries are not part of the Colorado Supreme
Court's opinion. They have been prepared solely for the reader's
convenience. As such, they may not be cited or relied upon. If
there is any discrepancy between the language in the summary
and the opinion, the language in the opinion controls.

ADVANCE SHEET HEADNOTE
June 1, 2026

2026 CO 40

No. 24SC440, Progressive Direct Ins. v. Ortiz-Uninsured Motorist ("UM")
Coverage-§ 10-4-609, C.R.S. (2025)-UM Insurer Participation in Tort
Litigation Between Uninsured and Insured Motorists -State Farm Mut. Auto.
Ins. Co. v. Brekke, 105 P.3d 177 (Colo. 2004).

The supreme court granted certiorari to review whether it should reconsider
its decision in State Farm Mutual Automobile Insurance Co. v. Brekke, 105 P.3d 177
(Colo. 2004). There, the supreme court held that to provide a court with the
information necessary to determine a uninsured motorist ("UM") insurer's level
of participation in tort litigation between its insured and an uninsured motorist, a
UM insurer must plead with particularity the legitimate defenses it intends to raise
as soon as practicable. Id. at 192 & n.20, 193.

With one minor clarification regarding C.R.C.P. 8 and C.R.C.P. 9(b), the
supreme court declines to overrule Brekke. Instead, the court concludes that
Brekke's guiding principles stand. To provide a court with the information needed
to timely determine a UM insurer's appropriate level of participation in tort
litigation between its insured and an uninsured motorist, an insurer must-as

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soon as practicable- plead its legitimate defenses specifically. Rule 9(b) does not
apply unless a UM insurer asserts fraud or mistake as a legitimate defense.

Because the UM insurer in this case failed to meet Brekke's requirements, the
supreme court concludes that the district court did not abuse its discretion in
barring the UM insurer from contesting liability in the tort litigation between its
insured and an uninsured motorist. The district court appropriately balanced the
interests of the parties and provided the insurer with the opportunity for a fair
hearing on its legitimate defenses. Accordingly, the supreme court affirms the
judgment of the court of appeals.

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# The Supreme Court of the State of Colorado 2 East 14th Avenue . Denver, Colorado 80203

2026 CO 40

Supreme Court Case No. 24SC440 Certiorari to the Colorado Court of Appeals

Court of Appeals Case No. 23CA292

Petitioner:

Progressive Direct Insurance Company,

V.

Respondent:

Andrew Ortiz.

Judgment Affirmed

en banc

June 1, 2026

Attorneys for Petitioner:

Montgomery | Amatuzio

Brendan O. Powers

Denver, Colorado

Attorneys for Respondent:

Western Slope Law

Nelson A. Waneka

Glenwood Springs, Colorado

Galperin and Associates

Jacob Galperin

Rebecca Bilello

Denver, Colorado

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Attorneys for Amicus Curiae Colorado Trial Lawyers Association:
Fiedler Trial Lawyers
James R. Anderson
Denver, Colorado

Ramos Law
Spencer B. Aitken
Centennial, Colorado

JUSTICE BERKENKOTTER delivered the Opinion of the Court, in which
CHIEF JUSTICE MÁRQUEZ, JUSTICE BOATRIGHT, JUSTICE HOOD,
JUSTICE GABRIEL, JUSTICE SAMOUR, and JUSTICE BLANCO joined.

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JUSTICE BERKENKOTTER delivered the Opinion of the Court.

11
The General Assembly enacted the uninsured motorist ("UM")1 statute,
section 10-4-609, C.R.S. (2025), to mandate uninsured and underinsured motorist
coverage as part of automobile liability policies in Colorado, providing protection
for insured persons who suffer bodily injury or death caused by uninsured or
underinsured motorists. See id. The statute establishes minimum coverage
requirements, defines the scope of protection, and specifies how coverage
amounts are calculated and applied. Id. Its purpose is to provide a mechanism
through which an insured motorist may "purchase insurance coverage against loss
caused by the negligent conduct of a financially irresponsible motorist." Aetna
Cas. & Sur. Co. v. McMichael, 906 P.2d 92, 98 (Colo. 1995); see also DeHerrera v. Sentry
Ins. Co., 30 P.3d 167, 174 (Colo. 2001).

## 12 Uninsured motorist coverage

shall be in addition to any legal liability coverage and shall cover the
difference, if any, between the amount of the limits of any legal
liability coverage and the amount of the damages sustained,
excluding exemplary damages, up to the maximum amount of the
coverage obtained pursuant to this section.

1 Significantly, UM coverage extends beyond traditional uninsured vehicles to
include underinsured motorist ("UIM") protection. § 10-4-609, C.R.S. (2025). This
case involves only UM coverage, though our holding here extends to UIM
coverage as well.

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§ 10-4-609(1)(c). This gap-filling function ensures that insureds receive
compensation up to their policy limits when the at-fault party's insurance is
insufficient or nonexistent. As a prerequisite to receiving payment from its UM
insurer, an insured must establish the liability of the uninsured motorist and that
the insured sustained damages. See Aetna, 906 P.2d at 98; see also DeHerrera, 30 P.3d
at 174; § 10-4-609.

13 The relationship between a UM carrier and its insured is not without some
tension. In State Farm Mutual Automobile Insurance Co. v. Brekke, 105 P.3d 177,
186-93 (Colo. 2004), we recognized that a UM insurer's participation in tort
litigation between its insured and an uninsured motorist "creates a real and
inherent conflict of interest." "The insurance provider's conflicting duty to the
insured and its interest in defending the uninsured motorist creates strong tension
between its legal obligations and its business interests." Id. at 188. Given this
tension, we set out guiding principles: A court determining a UM insurer's
appropriate level of participation in this type of litigation must "balance[] the
duties of the insurance provider and the insured's right to an undiluted UM
recovery against the interest of the insurance provider in receiving a fair hearing
on its legitimate defenses." Id. at 191.

14 To provide a court with the information necessary to determine a UM
insurer's level of participation, we continued, an insurer must plead with

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particularity the legitimate defenses it intends to raise as soon as practicable. Id.
at 192 & n.20, 193.

15 Progressive Direct Insurance Company ("Progressive") now asks us to
reconsider the particularized pleading and timeliness requirement standard we
adopted in Brekke. See id.2 With one minor clarification regarding C.R.C.P. 8 and
C.R.C.P. 9(b), we decline to do so. Instead, we conclude that Brekke's guiding
principles stand. To provide a court with the information needed to timely
determine a UM insurer's appropriate level of participation in tort litigation
between its insured and an uninsured motorist, an insurer must-as soon as
practicable-plead its legitimate defenses specifically. Rule 9(b) does not apply
unless a UM insurer asserts fraud or mistake as a legitimate defense. Generalized,
boilerplate allegations do not meet either standard. The resulting determination
by a court is subject to review for an abuse of discretion. Brekke, 105 P.3d at 183.
16 Progressive failed to meet Brekke's requirements. Consequently, we
conclude that the district court did not abuse its discretion when it ruled that
Progressive could not contest liability in the tort litigation between its insured,
Andrew Ortiz ("Ortiz"), and the uninsured motorist, Tania Granados Camacho

2 We granted certiorari to review the following issue:
Whether the court should reconsider the ... Brekke ... standard
related to the particularized pleading and timeliness requirements
imposed on insurers in UM litigation.

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("Camacho"). The district court appropriately balanced the interests of the parties
and provided Progressive with the opportunity for a fair hearing on its legitimate
defenses. Accordingly, we affirm the judgment of the court of appeals.

## I. Facts and Procedural History

17 This case arises from an accident between an uninsured driver, Camacho,
and the insured plaintiff in this case, Ortiz. Camacho's and Ortiz's vehicles
collided with one another as Ortiz attempted to turn left into a parking lot. At the
time of the collision, Camacho was uninsured, driving with only a learner's
permit, and unsupervised by an adult. Ortiz was insured by Progressive under a
policy that included UM coverage.

18 After the crash, Ortiz filed a claim with Progressive for UM benefits.
Progressive denied Ortiz's claim after concluding that Ortiz was more than 50% at
fault for the collision. Ortiz then filed suit against Camacho alleging negligence
and negligence per se. He also asserted claims against Progressive for breach of
contract, common law insurance bad faith, and unreasonable delay and denial of
insurance benefits under sections 10-3-1115 to -1116, C.R.S. (2025).

19
Camacho never responded to Ortiz's complaint. Ortiz filed a motion
seeking default judgment - which the court interpreted as a motion for entry of a
clerk's default against Camacho. The court granted the motion pursuant to
C.R.C.P. 55(a) and directed the clerk to enter Camacho's default. Though

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Progressive had been served with Ortiz's motion and the district court's order
entering default, Progressive did not file a response to the motion or take any
action with respect to the court's order.

110 Progressive, however, did file an answer to Ortiz's complaint in which it
(1) admitted that Camacho was partially at fault for the accident; and
(2) responded to every one of Ortiz's allegations against Camacho by stating that
the claim was "not direc[ted] to [Progressive] and therefore no response is
required." In its affirmative defenses, Progressive asserted that any damages
sustained by Ortiz were due to intervening or superseding causes or
circumstances, and the acts or omissions of parties other than Progressive. It
further claimed that Ortiz's right of recovery against it, if any, may be barred or
diminished by his comparative or contributory fault.

111 Later, Ortiz and Progressive submitted a joint proposed case management
order. In his description of the case and identification of the issues to be tried,
Ortiz asserted that the "issues concern liability, causation of [his] injuries, the
extent of [his] damages, [and] the bad faith conduct of Progressive." In its
description, Progressive denied Ortiz's claims against it and described the case as
"a simple liability dispute where [Ortiz] has failed to support his claim that he was
not the majority at fault for the underlying motor vehicle accident." Progressive

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also listed several affirmative defenses that it intended to assert. It did not,
however, include comparative fault in that list.

112 The district court issued a case management order that largely accepted the
language in the parties' proposed case management order, including their
respective descriptions of the nature of the case, the issues to be tried, and
Progressive's affirmative defenses.

113 Ten months after the district court granted entry of the clerk's default
against Camacho, Ortiz moved for partial summary judgment against both
Camacho and Progressive. He argued that the undisputed facts showed that
Camacho was "the sole proximate cause of the subject motor vehicle collision"
and, thus, his injuries. Progressive responded to Ortiz's motion by asserting -for
the first time-that it was "entitled to participate in the liability and damages
components of the default[] judgment hearing." The district court denied Ortiz's
motion as to Camacho after concluding that default judgment, not summary
judgment, was the proper remedy given the procedural posture of the case
vis-à-vis Camacho. The court, however, suggested that it would consider a motion
for default judgment against Camacho if Ortiz filed one.

[14 The court indicated that it would allow Progressive to contest Ortiz's
damages in a default judgment hearing, but that it would not allow it to contest
Camacho's liability in such a hearing. It reasoned that the entry of default in favor

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of Ortiz, and against Camacho, established Camacho's liability "for purposes of
moving forward with default judgment." Moreover, the court emphasized,
Progressive did not raise any objection or even concern about its liability issues
ten months earlier when the court granted the entry of default.

115 Relying on this court's guidance in Brekke, 105 P.3d at 186-93, the district
court additionally found that even if it was inclined to hear Progressive's liability
challenge during a default judgment hearing, Progressive failed to make the
required particularized showing that its participation in determining liability was
necessary to ensure a fair hearing. To the contrary, the district court found that
Progressive presented only "general, boilerplate affirmative defenses or
statements" in its answer and "did not raise any objection or even concern about
its liability issues" when default was entered.

116 But the district court emphasized that Progressive could-just as Brekke
contemplated-fully participate in the damages phase of the default judgment
hearing where Ortiz would attempt to establish the damages he suffered in the
crash. After that, Ortiz's claims against Progressive for bad faith breach and
breach of contract would separately proceed to trial before a jury.

117 Progressive and Ortiz subsequently participated in the damages phase of
the default judgment hearing. Camacho did not participate. During the hearing,

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Ortiz and his treating physician testified about causation and the extent of Ortiz's
damages. Progressive's counsel cross-examined both witnesses.

118 Thereafter, the district court concluded that Camacho's liability for the
accident with Ortiz was established by her default. With respect to damages, the
court awarded Ortiz $20,000 of the $100,000 in noneconomic and permanent
physical impairment damages that he sought.

119 The court entered default judgment in favor of Ortiz and against Camacho
in the amount of $86,958.66. This consisted of the $20,000 award for noneconomic
and permanent physical impairment damages, along with approximately $48,000
in medical expenses, and approximately $18,000 in prejudgment interest.
Progressive then paid Ortiz this amount, effectively resolving his claim for breach
of contract.

120 Later, Progressive and Ortiz proceeded to trial before a jury on Ortiz's two
remaining claims: common law and statutory bad faith breach of an insurance
contract. Causation was the central theme during the trial. Progressive's
argument was that Ortiz was primarily at fault for the crash. Its counsel
repeatedly advanced this position during opening statements, throughout witness
examinations, and during closing argument. Progressive acknowledged that
Camacho was found liable for the crash in earlier litigation but emphasized that
this was simply because of a "technical default." And Progressive explained to

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the jury that it initially refused to pay Ortiz any UM benefits because it reasonably
determined, based on its investigation, that Ortiz was more than 50% at fault for
the accident.

121 Consistent with Progressive's position, the district court instructed the jury
that:

· the ... court found Camacho at fault for the accident by default because
she "did not respond or contest liability";

· Progressive "denies that it acted in bad faith or unreasonably delayed or
denied [UM] benefits" because "it found through its own investigation
that [Ortiz] was at fault for the accident, a decision it maintains was
reasonable and a good faith basis to deny uninsured motorist benefits";

· "[w]hether or not a person has a valid driver's license is not relevant to
determining whether that person was driving negligently at the time of
the accident"; and

· at the time of the accident, several Colorado statutes, all of which were
potentially relevant to determining fault for the accident, governed
vehicles turning left, drivers passing other drivers on the right, driving
on roadways laned for traffic, and careless driving that causes bodily
injury.

Ortiz v. Progressive Direct Ins. Co., 2024 COA 54, 1 15, 554 P.3d 537, 542 (alterations
in original).

122 The jury found in Ortiz's favor on both claims, awarding him $76,493.53 for
unreasonable delay and denial of insurance benefits and $140,000 for common law
insurance bad faith. Thereafter, Progressive moved the court for a new trial on the
basis that there were "inherent and unaddressed inconsistencies in the [c]ourt's

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[o]rders." Specifically, Progressive argued that the district court's summary
judgment order barring it from contesting Camacho's liability was inconsistent
with the pleadings and proposed case management order, which Progressive
claimed identified comparative fault as an issue to be tried. The district court
denied Progressive's motion, reasoning that the statements in the proposed case
management order, "which were prepared by the parties not the [c]ourt, indicate
that Progressive was contesting its liability on [Ortiz's] claims for breach of
contract and bad faith claims," not "challenging or seeking to stand in ...
Camacho's shoes to contest liability in this lawsuit on [Ortiz's] negligence claim."
123 More importantly, the district court added, Progressive's statement of the
issues in the proposed case management order did not include the particularized
showing required under Brekke, 105 P.3d at 192. Further, Progressive did not
attempt to make the required showing until nearly a year after default had already
been entered against Camacho.

124 On appeal, Progressive argued that it was improperly restricted from
participating in the tort litigation between Camacho and Ortiz, which prejudiced
Progressive "by precluding any consideration of its coverage defense or reduction
of damages based on comparative fault." Ortiz, 11 30-31, 554 P.3d at 544-45.

125 The division was unpersuaded. It began its consideration of Progressive's
argument by reviewing our holding in Brekke, 105 P.3d at 192 & n.20, 193: To

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provide a court with the information necessary to determine a UM insurer's level
of participation, an insurer must plead with particularity the legitimate defenses
it intends to raise as soon as practicable. Ortiz, 1 24, 554 P.3d at 544.

126 Applying Brekke, the division explained that a court must consider, in each
case, "the unique relationship between the insured and insurance provider and
balance the insurance provider's duties to the insured and the insured's right to
undiluted UM recovery against the interest of the insurance provider in receiving
a fair hearing on its legitimate defenses." Ortiz, 1 35, 554 P.3d at 545 (quoting
Brekke, 105 P.3d at 181). In this case, the division concluded "[t]he district court
did exactly that." Id.

127 The district court-consistent with Brekke-assessed the need for
Progressive to participate in the liability determination based on the specific
circumstances of the insurer-insured relationship and Progressive's insufficient
pleading of its comparative fault defense. See Ortiz, 1 35, 554 P.3d at 545. The
division continued, "[T]he district court sought to balance the interests of the
parties and compensate for Progressive's exclusion from the liability
determination by permitting Progressive to participate in the damages hearing
and proceed to trial on the claims that Ortiz brought against it." Id. at 1 35,
554 P.3d at 545-46.

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128 During the damages phase of the default judgment hearing and the jury
trial, Progressive was able, the division emphasized, to explore the respective fault
of each driver and the cause of the accident. Id. at 1 36, 554 P.3d at 546. "And its
defense was partially successful." Id. Following the damages hearing, "Ortiz
received just [20%] of his requested noneconomic damages and damages for
permanent physical impairment." Id. Thus, the division discerned no abuse of
discretion in the district court's decision to bar Progressive from contesting
Camacho's liability during the default judgment hearing. Id. at [1 37, 51, 554 P.3d
at 546, 548.

129 In his special concurrence, Judge Lipinsky disagreed with the division's
application of Brekke and articulated three reasons why its holding may lead to
unjust results for insurance providers. Ortiz, 1 52, 554 P.3d at 548 (Lipinsky, J.,
specially concurring).

130 First, Progressive should have been able to litigate Ortiz's
liability -"specifically, whether he was more than 50% at fault for the collision."
Id. at 1 53, 554 P.3d at 548. Because Progressive was denied its day in court, Judge
Lipinsky explained, "[W]e do not know whether Ortiz was entitled to recover UM
benefits from Progressive." Id. at "[ 54, 554 P.3d at 548. Second, Camacho's liability
"should not have been binding on Progressive." Id. at | 55, 554 P.3d at 548. Thus,
in Judge Lipinsky's view, the district court should've allowed Progressive to

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litigate Ortiz's fault (1) before it entered the Rule 55(a) default, and (2) "despite the
entry of" the default. Id. Third, footnote twenty in Brekke "can lead to unjust
outcomes in UM coverage cases by resolving [an insured's] coverage claims based
on a formalistic requirement that the supreme court appears to have invented."
Ortiz, 1 56, 554 P.3d at 548 (Lipinsky, J., specially concurring).

131 Judge Lipinsky accordingly urged this court "to reconsider Brekke's
restrictions on an insurer's ability to defend itself against its policyholder's
coverage claims in UM litigation." Ortiz, 1 122, 554 P.3d at 557.

132 Progressive now appeals the division's decision and, echoing the
concurrence, asks this court to reconsider Brekke's particularity and timeliness
requirements.

## II. Analysis

133 We begin our analysis by setting out the standard of review. We then briefly
describe UM coverage before explaining our decision in Brekke, the quasi-fiduciary
relationship caused by the special nature of UM coverage, and the steps a court
must take to determine the appropriate level of participation by an insurer in tort
litigation between its insured and an uninsured motorist. Finally, after pausing to
discuss stare decisis, we analyze whether to reconsider our holding in Brekke.

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### A. Standard of Review

134 Progressive asks us to: (1) reconsider the Brekke particularity and timeliness
requirements, and (2) reverse the division's conclusion that the district court did
not abuse its discretion in prohibiting Progressive from contesting Camacho's
liability during the default judgment hearing, Ortiz, 11 37, 51, 554 P.3d at 546, 548.
As such, we review this case de novo. See Gallegos v. Colo. Ground Water Comm'n,
147 P.3d 20, 28 (Colo. 2006) ("We review the district court's .. . application of ...
case law de novo."); see also In re Marriage of Durie, 2020 CO 7, 1 13, 456 P.3d 463,
468.

## B. UM Coverage

135 The UM statute requires auto insurance policies to offer optional UM
coverage. § 10-4-609(1)(a)(I). This coverage, as the name suggests, provides
benefits when a tortfeasor lacks liability insurance or is underinsured. See
DeHerrera, 30 P.3d at 173-74. Specifically, a UM policy "is first-party coverage,"
which "allows an insured to collect payment from [their] own insurer for injury
suffered as a result of the actions of an at-fault uninsured or underinsured driver."
Apodaca v. Allstate Ins. Co., 255 P.3d 1099, 1103 (Colo. 2011).

136 An insured must establish that they are "legally entitled to recover
damages[;]'" that is, "that the fault of the uninsured [or underinsured] motorist
gave rise to damages and the extent of those damages." Borjas v. State Farm Mut.

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Auto. Ins. Co., 33 P.3d 1265, 1269 (Colo. App. 2001) (quoting § 10-4-609(1)(a)(I)).
"Once the insured meets this burden, the insurer is under a contractual and
statutory duty to compensate the insured." Peterman v. State Farm Mut. Auto. Ins.
Co., 961 P.2d 487, 493 (Colo. 1998).

## C. Brekke

137 In Brekke, we addressed the disparity in power and resources between a UM
insurer and its insured when an insurer wants to participate in tort litigation
between its insured and an uninsured motorist. 105 P.3d at 187-88. As noted, UM
coverage only applies "if the insured is 'legally entitled' to damages." Id. at 188
(quoting § 10-4-609(1)(a)(I)). And, because "a finding of no liability or of limited
damages on the part of the uninsured motorist will eliminate or limit a claim under
the insurance provider's UM coverage[,] ... it is to the insurance provider's
advantage to advocate the interests of the uninsured motorist in the tort
litigation." Id. Even so, while an insurer has an interest in participating in the tort
litigation, its insured's UM coverage may not be diluted. See id. at 190.

138 Thus, as we explained in Brekke, an insurer's participation in tort litigation
between its insured and an uninsured motorist "creates a real and inherent conflict
of interest." Id. at 187. Specifically, "[t]he insurance provider's conflicting duty to
the insured and its interest in defending the uninsured motorist creates strong
tension between its legal obligations and its business interests." Id. at 188.

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139 Accordingly, in Brekke, we emphasized that when a UM insurer seeks to
participate in litigation between its insured and an uninsured motorist, the court
must determine the insurer's appropriate level of participation in such litigation.
See id. at 183. To do so, a court must balance "the duties of the insurance provider
and the insured's right to an undiluted UM recovery against the interest of the
insurance provider in receiving a fair hearing on its legitimate defenses." Id. at
191. And, given the imbalance of power and resources between an insured and
insurer, "the burden falls on the insurance provider to show that its interest in a
fair hearing on its legitimate defenses will be unprotected without greater
participation in the proceedings." Id. at 192. Thus, we concluded in Brekke that an
insurer must plead with particularity the legitimate defenses it intends to raise as
soon as practicable so a court would have the information necessary to determine
a UM insurer's appropriate level of participation. Id. at 192 & n.20, 193.

## D. Stare Decisis

140 Progressive's request for us to review our prior holding in Brekke triggers
principles of stare decisis.

141
"Stare decisis is a judge-made doctrine that promotes uniformity, certainty,
and stability of the law." People v. LaRosa, 2013 CO 2, 1 28, 293 P.3d 567, 574. While
"[t]he principles of stare decisis provide that this Court will follow the rule of law
it has established in earlier cases[,]" Bedor v. Johnson, 2013 CO 4, 1 23, 292 P.3d 924,

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929, "[we] are not without power to depart from a prior ruling, or to overrule it,
where sound reasons exist[,]" Creacy v. Indus. Comm'n, 366 P.2d 384, 386 (Colo.
1961); see also People v. Porter, 2015 CO 34, 1 23, 348 P.3d 922, 927 ("[Stare decisis]
is not so rigid as to prevent us from reevaluating our precedent.").

142 However, "[w]e will depart from our existing law only if we are clearly
convinced that (1) the rule was originally erroneous or is no longer sound because
of changing conditions[,] and (2) more good than harm will come from departing
from precedent." Love v. Klosky, 2018 CO 20, 1 15, 413 P.3d 1267, 1270.

143 With these principles in mind, we turn to the issue before us to determine
whether it is appropriate to depart from our precedent in Brekke. For the reasons
explained below, we conclude it is not. While we clarify our holding in Brekke, the
case remains good law.

## E. No Sound Reason Exists to Depart from Our Holding in Brekke

144 Progressive asks this court to reconsider the particularized pleading and
timeliness standards we articulated in Brekke. It contends that Brekke represents a
radical change in the rules of civil procedure, including Rule 8 (governing the
pleading of basic affirmative defenses like comparative negligence) and Rule 9
(outlining the requirements for pleading certain claims, including fraud, with
particularity). It asserts that this court may not modify Rule 8 or extend Rule 9
through Brekke because such a radical change should proceed through the

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established protocol of the Civil Rules Committee rather than by way of a footnote
in an opinion.

145 Progressive additionally argues that Brekke's holding is contrary to the
public policy declarations in Colorado's statutes governing comparative
negligence, § 13-21-111, C.R.S. (2025), and UM coverage, § 10-4-609. In its view,
this change is not necessary to balance the interests of the insured and insurer nor
to "assur[e] timely notice to the insured of the UM insurer's legitimate defenses."
Finally, it contends that the division should have reversed the district court's
decision to apply Brekke's heightened standards and bar Progressive from
presenting its comparative negligence defense during the default judgment
hearing. It asks that we reconsider Brekke and remand this case for a jury trial on
Camacho's liability. Save for one point of clarification, we disagree.

146 We are unpersuaded by Progressive's arguments. Our holding in Brekke
wasn't intended to amend the rules of civil procedure. Rather, the pleading
requirements we established there apply to a very narrow universe of cases.
Specifically, the requirements are intended to provide a court with the information
it needs to determine the scope of an insurer's participation in tort litigation
between its insured and an uninsured motorist. To analyze the competing
interests in this circumstance and decide how the tort litigation should move

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forward, a court must know what legitimate defenses a UM insurer plans to
pursue. And it needs this information as soon as practicable.

147 Progressive's contention with respect to Rule 9(b) is somewhat more
availing. Rule 9(b) provides: "In all averments of fraud or mistake, the
circumstances constituting fraud or mistake shall be stated with particularity."
C.R.C.P. 9(b). To the extent that footnote twenty in Brekke may be read to suggest
that the particularized pleading standard set forth in Rule 9(b) always applies in
this situation, we clarify that it does not. Rule 9(b) does not apply unless a UM
insurer asserts fraud or mistake as a legitimate defense. In sum, Brekke is best
understood as requiring a UM insurer to plead its legitimate defenses specifically
unless fraud or mistake are asserted as legitimate defenses. Generalized,
boilerplate defenses are insufficient to meet either standard.

148 That clarification aside, we perceive no reason to overrule or otherwise limit
our holding in Brekke. See Love, [ 15, 413 P.3d at 1270 (holding that courts will not
depart from prior rulings if there is no sound reason to do so). We are
unconvinced by Progressive's remaining public policy argument, which we
considered and rejected in Brekke. Progressive argues that Brekke's pleading and
timeliness standards create an unnecessary risk that insureds, whose negligence is
50% or more, can receive UM benefits contrary to public policy. See § 13-21-111.
However, Brekke's holding recognizes that risk as well as UM insurers' conflict of

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interest-when participating in tort litigation between its insured and an
uninsured motorist - and appropriately balances the interests of UM insurers and
their insureds in such litigation. See, e.g., 105 P.3d at 181, 183, 186, 189-90, 192.

149 Insurers will be permitted to participate in tort litigation between the
insured and uninsured motorist "only when it clearly appears that the legitimate
defenses of the insurance provider will not be presented to the court without such"
participation. Id. at 193. Accordingly, a "court must determine the extent of
participation by an insurance provider in the tort litigation on a case-by-case basis,
subject to review for abuse of discretion." Id. at 183.

150 The district court proceeded exactly as Brekke requires. Upon learning for
the first time that Progressive wished to participate in the proceeding between
Ortiz and Camacho-ten months after the district court's entry of the clerk's
default against Camacho and the completion of discovery-the court applied
Brekke's requirements to assess the timing and particularity of Progressive's
pleadings. In doing so, the court addressed three issues. First, the court
considered the effect of the entry of default. It concluded that Camacho's liability
was established when default was entered in April of 2021 and "Progressive did
not raise any objection or even concern about its liability issues at that time."

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Second, the court considered whether Progressive had met the necessary showing
as soon as practicable as required under Brekke.3 It concluded that

even if the [c]ourt were inclined to hear such a challenge, the [c]ourt
finds that ... Progressive has not met its burden to show that its
participation in a default judgment hearing on the issue of liability is
required to ensure a fair hearing .... Progressive has not made the
particularized showing required under Brekke in its [a]nswer or
[r]esponse to the [m]otion [for summary judgment]. Moreover, the
arguments made in the [r]esponse to the [m]otion about
comparative/contributory fault between [Ortiz] and ... Camacho
could have been made at the outset of the case-namely in the
[a]nswer or in response to [Ortiz's] motion for entry of default - and
were not raised. Brekke requires more than general, boilerplate
affirmative defenses or statements. And, raising these issues now
does not meet Brekke's "as soon as practicable" mandate.

(Citation omitted.)

151 And third, the district court examined whether Progressive met its burden
to show that its interest in a fair hearing on its legitimate defenses would be
unprotected without greater participation in the proceedings. As to this issue, the
court concluded that Progressive could "fully participate in any default judgment
damages hearing." During this hearing and the trial between Progressive and
Ortiz, "Progressive explored the cause of the accident and the respective fault of"

3 The district court considered whether Progressive made a "particularized
showing." It appears nonetheless to have analyzed whether Progressive set forth
its legitimate defenses specifically, rather than whether Progressive met
Rule 9(b)'s particularized pleading standard. But even if the court had applied
Rule 9(b), it still reached the correct conclusion as Progressive's arguments were
not made "as soon as practicable." Brekke, 105 P.3d at 192.

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Ortiz and Camacho. At trial, the court instructed the jury regarding the default
judgment, explaining that the court found Camacho at fault for the accident by
default because she "did not respond or contest liability." It further explained in
the instructions that Progressive "denies that it acted in bad faith or unreasonably
delayed or denied [UM] benefits" because "it found through its own investigation
that [Ortiz] was at fault for the accident, a decision it maintains was reasonable
and a good faith basis to deny uninsured motorist benefits."

152 And Progressive's "defense was partially successful. Due to Progressive's
cross-examination during the damages hearing of Ortiz and his treating physician
about causation and the extent of Ortiz's damages, Ortiz received just [20%] of his
requested noneconomic damages and damages for permanent physical
impairment." Ortiz, 136, 554 P.3d at 546. Accordingly, we agree with the
division: Progressive's argument "that the district court precluded 'any
consideration of its coverage defense or reduction of damages based on
comparative fault' is thus without merit." Id.

153 In this case, Progressive failed to specifically plead the legitimate defenses
it intended to raise as soon as practicable. See id. at TT 35-37, 554 P.3d at 545-46;
see also Brekke, 105 P.3d at 192. Progressive waited until ten months after the court
granted entry of the clerk's default and the close of discovery to mention its
interest in participating in the proceedings between Ortiz and Camacho. And, as

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explained above, Progressive's briefing in its answer and response to Ortiz's
motion for summary judgment lacked specificity and contained general,
boilerplate affirmative defenses and statements insufficient to satisfy Brekke's
requirements. Accordingly, the division properly affirmed the district court's
conclusion

that Progressive's failure to respond to Ortiz's allegations against
Camacho (by asserting in its answer that those allegations were
directed only to Camacho), its general denials of responsibility, its
vague assertion that comparative fault may play an unspecified role
in the litigation, and its failure to adequately raise the issue of
comparative fault until nearly a year after default was entered against
Camacho were insufficient for Progressive to show the necessity of its
participation in the liability determination.

Ortiz, 1 33, 554 P.3d at 545.

## III. Conclusion

154 Our decision in Brekke announces specific notice and timing requirements
for a UM insurer that seeks to participate in tort litigation between its insured and
an uninsured motorist: To provide a court with the information necessary to
determine a UM insurer's appropriate level of participation, an insurer must-as
soon as practicable-plead its legitimate defenses specifically. Pleading with
particularity as required by Rule 9(b) is not required unless a UM insurer asserts
fraud or mistake as a legitimate defense. Generalized, boilerplate allegations do
not meet either standard. Brekke, 105 P.3d at 192-93.

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155 While we clarify footnote twenty, Brekke remains good law in all other
respects. UM coverage provides important protections to insureds, which may
not be diluted by insurers. And while UM insurers also have a legitimate stake in
tort litigation between their insureds and uninsured motorists, their participation
in such litigation has prerequisites.

156 Accordingly, we affirm the division's judgment and remand the case to the
division with instructions to return it to the district court to determine and award
the amount of appellate attorney fees and costs incurred by Ortiz on appeal.