Cunningham v. Travelers Home and Marine Insurance Company

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge S. Kato Crews
Case No. 1:24-cv-01806-SKC-NRN
SAMUEL CUNNINGHAM,
Plaintiff,
v.
TRAVELERS HOME AND MARINE INSURANCE COMPANY,
Defendant.
ORDER DENYING DEFENDANT’S PARTIAL MOTION
FOR SUMMARY JUDGMENT (DKT. 71)
The above-referenced Motion is now before the Court. Defendant Travelers
Home and Marine Insurance Company seeks partial summary judgment on Plaintiff
Samuel Cunnigham’s claims for violations of Colo. Rev. Stat. §§ 10-3-1115, 1116,
common law bad faith breach of an insurance contract, and exemplary damages.1
Dkt. 71. Plaintiff contends there are disputed issues of material fact precluding
summary judgment in Travelers’ favor. Dkt. 76.
The Court has reviewed the Motion, Response, Reply (Dkt. 81), the statement
of material facts in support of the Motion (Dkt. 82), the evidence, and the entire case
1 Travelers does not seek judgment on Plaintiff’s claim for breach of contract.
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file. No hearing is necessary. Because genuine issues of material fact govern the
central disputes between the parties, the Motion is denied.
Summary judgment is warranted when the movant shows there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law. Turnkey Sols. Corp. v. Hewlett Packard Enter. Co., No. 15-cv-01541-CMA-CBS,
2017 WL 3425140, at *2 (D. Colo. Aug. 9, 2017). Conclusory statements based merely
on conjecture, speculation, or subjective belief do not constitute competent summary
judgment evidence. Id. When reviewing motions for summary judgment, a court must
view the evidence in the light most favorable to the non-moving party. Id.
ANALYSIS
To prevail on claims for violations of Colo. Rev. Stat. §§ 10-3-1115, -1116, and
bad faith breach of an insurance contract, Plaintiff must prove that Travelers delayed
or denied benefits without a reasonable basis. Anderson v. Am. Nat’l Prop. & Cas.
Co., No. 17-cv-03016-KMT, 2020 WL 406077, at *6 (D. Colo. Jan. 23, 2020); Schultz
v. GEICO Cas. Co., 429 P.3d 844, 848 (Colo. 2018); Colo. Rev. Stat. § 10-3-1115(2).
Under Colorado law, reasonableness is usually an issue for the jury; however, “in
appropriate circumstances, as when there are no genuine issues of material fact,
reasonableness may be decided as a matter of law.” Zolman v. Pinnacol Assur., 261
P.3d 490, 497 (Colo. App. 2011) (citing Bankr. Estate of Morris v. COPIC Ins. Co., 192
P.3d 519, 524 (Colo. App. 2008)); cf. Cont’l Cas. Co. v. Hempel, 4 F. App’x 703, 719
(10th Cir. 2001) (“[C]ourts have found . . . unreasonableness as a matter of law when
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the 	evidence 	in 	the 	record 	indicated 	that 	a 	factfinder 	could 	reach 	no 	other
conclusion.”).
“In determining whether an insurer acted reasonably . . . courts must consider,
among other things, whether a reasonable person would find that the insurer’s
justification for delaying or denying payment was ‘fairly debatable.’” Fear v. GEICO
Cas. Co., 560 P.3d 974, 981 (Colo. 2024) (citing Schultz, 429 P.3d at 848). While “fair
debatability is not a threshold inquiry that is outcome determinative as a matter of
law,” a finding that a claim was “fairly debatable” “weighs against a finding that the
insurer acted unreasonably.” Sanderson v. Am. Family Mut. Ins. Co, 251 P.3d 1213,
1217, 1218 (Colo. App. 2010).
In its Motion and supporting materials, Travelers discusses a plethora of
evidence that would indeed support a finding that its conduct was reasonable under
the circumstances. Dkt. 71, pp.5-15. But contrary to Travelers’ assertion, Plaintiff
has offered evidence to the contrary, particularly in the form of Mr. Nelson Waneka’s
expert testimony. Dkts. 76-6, 76-7. While the mere existence of an expert report does
not alone create an issue of material fact, Zolman v. Pinnacol Assur., 261 P.3d 490,
500 (Colo. App. 2011), “expert testimony regarding insurance industry standards is
routinely admitted in Colorado insurance bad faith cases.” O’Sullivan v. Geico Cas.
Co., 233 F. Supp. 3d 917, 926 n.4 (D. Colo. 2017).
In this case, Mr. Waneka’s report thoroughly discusses the evidentiary record
in this matter and concludes based thereon that Travelers’ conduct fell below
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insurance industry standards and that Travelers knew or recklessly disregarded the
validity of Plaintiff’s claims. Dkt. 76-6. Mr. Waneka particularly highlights various
of Karen White’s—the adjuster assigned to Plaintiff’s claim—decisions and actions
that were contrary to industry standards.2 Id.
For example, in her claim notes, Ms. White wrote that Travelers would need
to procure experts to “rebut” Plaintiff’s experts. Dkt. 82, ¶35 (Plaintiff’s Additional
Facts). 	And 	during 	her 	deposition, 	she 	acknowledged 	that 	retaining 	experts
specifically to rebut an insured’s claim would be improper under industry standards.
Id. at ¶36. Travelers dismisses this fact as trivial because Ms. White also stated she
did not in fact retain experts specifically to rebut Plaintiff’s evidence. Id. at ¶35. But
these conflicting statements (in her claim notes and her testimony), in and of
themselves, raise genuine questions regarding whether her conduct aligned with
industry standards. And such questions can only be resolved with a determination
regarding her credibility.
In addition, Plaintiff has cited evidence that:
1. 	Ms. White rejected Plaintiff’s demand and made compromise
offers even though she had outstanding questions regarding
2 Although the Court recently changed its practice standards to allow 702 challenges
as late as the Final Pretrial Conference, these changes are inapplicable to this case.
At the time the schedule in this case was determined, 702 motions were due 30 days
after the rebuttal expert witness designation deadline. Travelers did not file any 702
challenges 	regarding 	Mr. 	Waneka’s 	proffered 	opinions; 	thus, 	objections 	to 	his
testimony or opinions on 702 grounds are waived.
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Plaintiff’s claim and had not yet completed an investigation. (Dkt.
82, ¶¶25, 26.)3
2. 	Ms. White spent only an hour and fifteen minutes reviewing
Plaintiff’s 	evidence—nearly 	600 	pages 	of 	documents—before
concluding that her valuation would not change. (Id. at ¶¶27, 28.)
3. 	Ms. White relied heavily on a nurse reviewer’s broad opinions in
reaching her conclusions despite the fact this nurse (1) was not a
qualified expert; and (2) was Travelers’ employee, and therefore,
not impartial. (Id. at ¶¶6-11.)
This evidence is relevant to both Plaintiff’s claims for bad faith and to his
request for exemplary damages.4 Thus, even without Mr. Waneka’s report, Ms.
White’s 	credibility 	is 	central 	to 	determining 	whether 	Travelers’ 	conduct 	was
consistent 	with 	industry 	standards. 	But 	“[t]he 	weighing 	of 	evidence, 	the
reconciliation of inconsistent testimony, and the assessment of a witness’ credibility
is solely within the province of the jury.” Cruz v. City of Deming, 138 F.4th 1257, 1266
(10th Cir. 2025).
And just as Travelers has cited evidence to support its valuation of Plaintiff’s
claim, there is abundant evidence in the record to support Plaintiff’s alleged injuries
3 These record citations are examples and not meant to be exhaustive of the evidence
creating disputed issues of material fact. In citing this evidence, the Court makes no
comment on the relevance or admissibility of any evidence the parties’ may use to
support their claims and defenses.
4 	Indeed, 	Magistrate 	Judge 	N. 	Reid 	Neureiter 	convened 	a 	hearing 	regarding
Plaintiff’s request to add exemplary damages. The Court has reviewed all the
evidence attached to Plaintiff’s request and agrees with Judge Neureiter that this
evidence supports a triable issue. Whether Plaintiff’s evidence sufficiently proves his
claim is not for this Court to decide. The parties will present their competing evidence
at trial and submit the question to a jury.
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and damages. The Court must construe this evidence and any reasonable inferences
that can be made from it in the light most favorable to Plaintiff. Adams v. Am.
Guarantee & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000). Consequently, it is
for a jury to decide whether Travelers’ valuation of Plaintiff’s under insured motorist
claim was reasonable and whether Travelers recklessly disregarded the risks to
Plaintiff’s interests.
* 	* 	*
For 	the 	reasons 	shared 	above, 	the 	Motion 	for 	Summary 	Judgment 	is
respectfully DENIED.
IT IS FURTHER ORDERED a Final Pretrial Conference is set for March 25,
2026, at 10:00 a.m. in Courtroom A601 before U.S. District Judge S. Kato Crews. No
later than March 18, 2026, the parties shall file the proposed final pretrial order. A
WORD version of the proposed final pretrial order should also be emailed to
crews_chambers@cod.uscourts.gov. 	The Parties shall refer to this Court’s Standing
Order for Civil Cases when preparing the proposed final pretrial order. The Parties
should also be prepared to set a trial date within one to two months from the date of
this conference. Lead counsel who will try the case must be in attendance.
DATED: February 9, 2026.
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BY THE COURT:
___________________________
S. Kato Crews
United Stated District Judge
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