UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

CHRISTINE WILLIAMS, 

 Plaintiff - Appellant, 

v. 

OWNERS INSURANCE COMPANY, 

 Defendant - Appellee. 

No. 14-1262 

(D.C. No. 1:12-CV-00999-MSK-CBS) 

(D. Colo.)

 

ORDER AND JUDGMENT*

 

Before BRISCOE, Chief Judge, LUCERO and MATHESON, Circuit Judges. 

 

 Christine Williams appeals the district court’s grant of summary judgment to 

Owners Insurance Company (Owners) on her claims for breach of contract and bad 

faith failure to pay her underinsured motorist (UIM) claim. We affirm. 

 

*

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist the determination of this 

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 15, 2015

Elisabeth A. Shumaker 

Clerk of Court
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I. BACKGROUND

 Ms. Williams was injured in an automobile accident on August 25, 2008. She 

settled with the at-fault driver’s insurance company on January 3, 2012, for the 

policy limit of $25,000. She then sought payment from her own insurance company, 

Owners, for UIM coverage. Her Owners policy required her to exhaust her claim 

against the at-fault driver before seeking payment under the Owners policy. On 

January 10, 2012, she demanded the policy limit of $100,000 from Owners, stating 

that her unreimbursed medical expenses exceeded $50,000 and her lost income 

exceeded $60,000. 

Owners personnel reviewed Ms. Williams’s medical records and noted that her 

symptoms may have worsened over time; some injuries were degenerative and thus 

preexisting, rather than traumatically caused by the accident; and she had been in a 

subsequent automobile accident in October 2009. As to the claimed lost wages, 

Owners observed that none of Ms. Williams’s medical providers had restricted her 

from working. In addition, the only documentation Ms. Williams initially provided 

to support her wage-loss claim was a spreadsheet she had prepared herself. 

Considering the concerns raised by the documents provided, on February 6, 

2012, Owners offered a $50,000 settlement and requested additional documentation, 

which Ms. Williams submitted. Owners increased the settlement offer to $75,000 on 

February 29, 2012. Ms. Williams rejected the offer, but demanded that Owners pay 

her the $75,000 pending a final settlement. When Owners declined to pay without a 
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release of all claims, Ms. Williams filed suit on March 16, 2012. It is undisputed that 

the parties never reached an agreement as to the amount of UIM benefits to which 

Ms. Williams was entitled. 

 Ms. Williams brought claims for breach of contract, common law bad faith 

delay in processing her claim, and statutory bad faith delay in processing her claim.1

 

After noting the law applicable to each claim, the district court determined that all 

claims had one element in common: whether Owners’ conduct in processing 

Ms. Williams’s claim was unreasonable. Concluding that Ms. Williams had not 

produced evidence demonstrating that Owners had acted unreasonably, the district 

court granted Owners’ motion for summary judgment. Ms. Williams appeals, 

renewing on appeal her substantive claims. She also asserts error in the district 

court’s articulation and application of the summary judgment standard and in the 

characterization of her expert witness’s testimony. 

II. STANDARDS OF REVIEW 

We apply Colorado law to this insurance dispute based on diversity 

jurisdiction. Berry & Murphy, P.C. v. Carolina Cas. Ins. Co., 586 F.3d 803, 808 

(10th Cir. 2009). We review the grant of summary judgment de novo, applying the 

same standards as the district court. Id. We view the facts, and all reasonable 

inferences supported by those facts, in the light most favorable to Ms. Williams as 

 

1

 Ms. Williams filed her complaint in Colorado state court. Owners removed 

the case to federal court, invoking diversity jurisdiction, see 28 U.S.C. § 1332(a). 
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the nonmoving party. Id. “The court shall grant summary judgment if the movant 

shows that there is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 

An issue is “genuine” if there is sufficient evidence on each side 

so that a rational trier of fact could resolve the issue either way. An 

issue of fact is “material” if under the substantive law it is essential to 

the proper disposition of the claim. If a party that would bear the 

burden of persuasion at trial does not come forward with sufficient 

evidence on an essential element of its prima facie case, all issues 

concerning all other elements of the claim and any defenses become 

immaterial. If there is no genuine issue of material fact, we next 

determine whether the district court correctly applied the substantive 

law. 

The movant bears the initial burden of making a prima facie 

demonstration of the absence of a genuine issue of material fact and 

entitlement to judgment as a matter of law. In so doing, a movant that 

will not bear the burden of persuasion at trial need not negate the 

nonmovant’s claim. Such a movant may make its prima facie 

demonstration simply by pointing out to the court a lack of evidence for 

the nonmovant on an essential element of the nonmovant’s claim. 

If the movant carries this initial burden, the nonmovant that 

would bear the burden of persuasion at trial may not simply rest upon its 

pleadings; the burden shifts to the nonmovant to go beyond the 

pleadings and set forth specific facts that would be admissible in 

evidence in the event of trial from which a rational trier of fact could 

find for the nonmovant. To accomplish this, the facts must be identified 

by reference to affidavits, deposition transcripts, or specific exhibits 

incorporated therein. Thus, although our review is de novo, we conduct 

that review from the perspective of the district court at the time it made 

its ruling, ordinarily limiting our review to the materials adequately 

brought to the attention of the district court by the parties. 

Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (citations and 

internal quotation marks omitted). 
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“Because our review is de novo, we need not separately address 

[Ms. Williams’s] argument[] that the district court erred by viewing evidence in the 

light most favorable to [Owners] and by treating disputed issues of fact as 

undisputed.” Simmons v. Sykes Enters., Inc., 647 F.3d 943, 947 (10th Cir. 2011); 

see also Knitter v. Corvias Military Living, LLC, 758 F.3d 1214, 1227-28 n.9 

(10th Cir. 2014) (“[B]ecause our standard of review is de novo, we are free to apply 

the proper test here, and we may affirm on any ground supported by the record.”); 

Salve Regina Coll. v. Russell, 499 U.S. 225, 238 (1991) (“When de novo review is 

compelled, no form of appellate deference is acceptable.”). 

III. DISCUSSION 

A. Breach of Contract 

 The elements of a cause of action for breach of an insurance contract are 

“(1) the existence of a contract, (2) performance by the plaintiff or some justification 

for nonperformance, (3) failure to perform the contract by the defendant, and 

(4) resulting damages to the plaintiff.” W. Distrib. Co. v. Diodosio, 841 P.2d 1053, 

1058 (Colo. 1992) (citations omitted). The insurance contract between Ms. Williams 

and Owners included the following provision: “Whether an injured person is legally 

entitled to recover damages and the amount of such damages shall be determined by 

an agreement between the injured person and us.” Aplt. App. at 116. Owners points 

out that the parties never reached an agreement on the amount of damages. 

Ms. Williams argues that enforcing this provision would permit Owners to avoid 
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payment merely by refusing to agree. Consequently, she contends that the clause 

violates public policy and contravenes Colo. Rev. Stat. § 10-3-1115 (prohibiting 

insurers from unreasonably denying or delaying payment for benefits owed to a 

first-party claimant). 

 Owners’ enforcement of this provision is not a breach of the contract. The 

provision is indisputably part of the contract. Ms. Williams does not allege that the 

parties reached an agreement on a settlement. Therefore, we consider whether 

Owners violated public policy or section 10-3-1115 by unreasonably handling 

Ms. Williams’s claim. If the evidence had clearly established that Ms. Williams had 

$100,000 in UIM exposure, but Owners refused to pay that amount, we could 

conclude that the clause is unenforceable and Owners’ conduct was unreasonable 

and/or in bad faith. See Goodson v. Am. Standard Ins. Co., 89 P.3d 409, 414 

(Colo. 2004) (en banc) (“Every contract in Colorado contains an implied duty of 

good faith and fair dealing.”). But Owners reasonably disputed the amounts of 

Ms. Williams’s medical expenses and wage losses. Therefore, as we discuss below, 

no reasonable jury could find that Owners unreasonably declined to pay the policy 

limit of $100,000. 
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B. Common Law and Statutory Bad Faith 

Ms. Williams claims Owners acted unreasonably and in bad faith as follows: 

(1) Owners’ investigation was unreasonable because Owners did not begin to 

investigate until after January 13, 2012, when it received Ms. Williams’s demand for 

payment under her UIM coverage, despite being informed in 2009 of the probability 

of a UIM claim; (2) Owners refused to pay her the $75,000 settlement offer as an 

undisputed minimum, even though a final settlement amount had not been reached; 

(3) Owners’ settlement offers of $50,000 and $75,000 were unreasonable, given her 

documentation to support her claim for $100,000, and Owners did not explain the 

bases for the settlement offers; (4) Owners’ agent did not consult a medical 

professional concerning her questions about Ms. Williams’s claimed injuries; and 

(5) Owners’ record-keeping was inadequate. 

(1) Applicable Law

For a common law bad faith claim, because this is a “direct or first-party 

[claim], [the tort of bad faith processing of an insurance claim] requires proof of 

unreasonable conduct and knowledge that the conduct is unreasonable or a reckless 

disregard of the fact that the conduct is unreasonable.” Travelers Ins. Co. v. Savio, 

706 P.2d 1258, 1276 (Colo. 1985) (en banc). “Under Colorado law, it is reasonable 

for an insurer to challenge claims that are ‘fairly debatable.’” Zolman v. Pinnacol 

Assurance, 261 P.3d 490, 496 (Colo. Ct. App. 2011). 
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Ms. Williams also brings claims under Colo. Rev. Stat. §10-3-1115(1)(a), 

which provides: “A person engaged in the business of insurance shall not 

unreasonably delay or deny payment of a claim for benefits owed to or on behalf of 

any first-party claimant.” Section 10-3-1115(2) imposes an unreasonableness 

standard “for the purposes of an action brought pursuant to this section and section 

10-3-1116.” Section 1116, in turn, creates a private right of action for certain 

remedies for violations of section 1115, and authorizes damages of two times the 

covered benefit plus attorney fees and court costs. 

These statutes “impose on insurers a . . . standard of liability in addition to and 

different from that required to prove a claim for breach of the common law duty of 

good faith and fair dealing.” Kisselman v. Am. Family Mut. Ins. Co., 292 P.3d 964, 

973 (Colo. Ct. App. 2011). An insurer breaches the statutory duty if there was “no 

reasonable basis to delay or deny the claim for benefits.” Id. at 974 (internal 

quotation marks omitted); see also section 10-3-1115(2) (stating “an insurer’s 

delay . . . was unreasonable if the insurer delayed . . . authorizing payment of a 

covered benefit without a reasonable basis for that action”). In contrast to a common 

law bad faith claim, “the only element at issue in the statutory claim is whether an 

insurer denied benefits without a reasonable basis.” Vaccaro v. Am. Family Ins. 

Group, 2012 COA 9, ¶ 44, 275 P.3d 750, 760; see id. ¶ 44 (stating that a finding that 

a UIM claim was “fairly debatable” for common law purposes “would not alone 

establish that [the insurer’s] actions . . . were reasonable as a matter of law.”). 
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Both the common law and the statutes impose liability if the insurer acted 

unreasonably. Both types of claim are evaluated objectively, based on industry 

standards. Savio, 706 P.2d at 1276 (common law claim); Fisher v. State Farm Mut. 

Auto. Ins. Co., 2015 COA 57, ¶ 53, 2015 WL 2198515, at * 9 (statutory claim). Ms. 

Williams had the burden to establish that Owners acted unreasonably. See Bankr. 

Estate of Morris v. COPIC Ins. Co., 192 P.3d 519, 523 (Colo. Ct. App. 2008). The 

issue of unreasonableness is usually a question of fact, but “in appropriate 

circumstances, as when there are no genuine issues of material fact, reasonableness 

may be decided as a matter of law.” Id. at 524. 

(2) Application 

We first address Ms. Williams’s claim that Owners unreasonably delayed 

investigating her claim. Ms. Williams asserts that Owners should have begun its 

investigation in 2009 upon being informed of the probability of a UIM claim, not in 

2012 when it received her demand for payment. To carry her burden to show that 

Owners acted unreasonably in violation of industry standards, Ms. Williams relies on 

excerpts from the deposition of her expert witness, Bradley Levin. Mr. Levin 

testified that Owners’ request for additional documentation to support the wage loss 

claim was not unreasonable, but Owners should have requested additional 

information from Ms. Williams about her wage loss claim in January, 2012. He did 

not say Owners should have made the request in 2009. See Sanderson v. Am. Family 

Mut. Ins. Co., 251 P.3d 1213, 1220 (Colo. Ct. App. 2010) (holding plaintiff’s UIM 
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claims did not accrue until his lawsuit against the underinsured driver was resolved 

where insurance policy provided for UIM coverage only after liability policies had 

been exhausted). Mr. Levin did not testify that his opinion that Owners should have 

asked for additional documents in January was based on industry standards. 

Owners received Ms. Williams’s demand package on January 13, 2012. On 

February 6, Owners requested further documentation. On February 29, 2012, Owners 

offered $75,000. Thus, 46 days elapsed between Ms. Williams’s demand and 

Owners’ offer. We conclude that under these circumstances, no reasonable jury 

could find that Owners unreasonably delayed investigating Ms. Williams’s UIM 

claim. 

We next determine that Owners’ refusal to pay Ms. Williams the $75,000 

settlement offer as an undisputed minimum does not warrant a finding of bad faith or 

unreasonable conduct. Indeed, the Colorado Court of Appeals has stated in dicta that 

“an assertion that [an insurer] breached its duty under section 10-3-1115 by failing to 

pay [its insured] the initial settlement offer is inconsistent with Colorado law.” 

Fisher, 2015 COA 57, ¶ 15 (addressing claim advanced at trial that insurer 

unreasonably delayed paying insured’s medical expenses, which were owed 

regardless of settlement offer). 

 Ms. Williams asserts that Owners’ settlement offers of $50,000 and $75,000 

were unreasonable, given her documentation to support her claim for $100,000. But 

she does not address, or even acknowledge, Owners’ reservations about her medical 
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expenses—her symptoms worsened over time, some injuries were degenerative rather 

than traumatic, and she was in a subsequent accident. Similarly, she offers no 

response to Owners’ challenges to her wage loss claim—the evidence does not 

contain a doctor’s limitation on her ability to work, she did not proffer admissible 

evidence that she hired and paid others to perform her work, and the spreadsheet she 

prepared herself was inadequate to substantiate her lost wages. Rather, she argues 

merely that she presented “ample evidence establishing that Owners disregarded 

relevant medical opinions,” Aplt. Opening Br. at 37, and she “put forward evidence 

showing that Owners ha[d] no reasonable excuse for failing to perform the contract,” 

id. at 47. These arguments consisting of mere conclusory allegations are insufficient 

to warrant appellate review. See Palma-Salazar v. Davis, 677 F.3d 1031, 1037 (10th 

Cir. 2012) (declining to address conclusory statements (collecting cases)). 

 Ms. Williams also claims that Owners’ failure to explain its offers of $50,000 

and $75,000 showed bad faith. But the correspondence between Owners and 

Ms. Williams demonstrated that Owners had questions about her medical and wage 

loss claims. Upon receipt of additional documentation after making the $50,000 

offer, Owners increased its offer to $75,000. And if Ms. Williams was confused 

about the basis for the offer, she could have asked, but there is no indication that she 

did.2

 

 

2

 Ms. Williams relies on Colo. Rev. Stat. § 10-3-1104(1)(h)(XIV), which lists as 

an unfair or deceptive insurance practice a failure to promptly explain the basis for a 

(continued) 
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We next address Ms. Williams’s claim that Owners’ agent acted unreasonably 

and in bad faith by not consulting a medical professional to resolve her concerns 

about Ms. Williams’s claim for damages related to medical expenses. Ms. Williams 

again relies on her expert witness’s opinion. Mr. Levin opined that as a layperson, 

the agent evaluating a claim must have a reasonable basis for rejecting the claim and 

may not reject a treating physician’s statement without first consulting a medical 

professional. But Mr. Levin did not state whether this procedure was an industry 

standard, a condition imposed by law, or merely his personal opinion of how this 

claim should have been handled. Moreover, when asked whether the Owners agent 

had the capacity or training to evaluate a medical claim without consulting a medical 

professional, Mr. Levin replied, “She may or she may not.” Aplt. App. at 106. 

Mr. Levin did not explain how Owners’ evaluation of the claim was deficient. 

Consequently, this opinion does not demonstrate that Owners unreasonably or in bad 

faith challenged Ms. Williams’s medical claim or that Owners violated industry 

standards. 

Last, we consider Ms. Williams’s claim that Owners’ record-keeping was 

inadequate. Mr. Levin stated that industry standards require an insurer to keep 

detailed records concerning a claim and that Owners’ internal records did not meet 

this standard. He did not opine, however, that this failure had any impact on Owners’ 

 

settlement offer. Even if it applied to our facts, this section does not create a private 

right of action. Colo. Rev. Stat. § 10-3-1114. 
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actions toward Ms. Williams. Thus, Ms. Williams has not shown that Owners’ 

inadequate record-keeping resulted in any unreasonable actions toward her. 

C. Expert Witness Testimony 

 Ms. Williams takes issue with the district court’s treatment of her expert 

witness’s testimony, asserting that the court interpreted and weighed the testimony in 

the light most favorable to Owners. She argues that once the court received 

Mr. Levin’s testimony on summary judgment as an expert under Fed. R. Evid. 702, 

the court should have presumed that his opinions espoused industry standards. 

Ms. Williams has cited no legal authority for this position. The district court 

carefully reviewed the testimony to determine whether Mr. Levin was, in fact, 

describing industry standards, which was part of Ms. Williams’s burden. Based on 

our de novo review, we perceive no error. 

IV. CONCLUSION 

 The judgment of the district court is affirmed. 

 Entered for the Court 

 Mary Beck Briscoe 

 Chief Judge