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

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See FED. R. APP. P. 34(f); 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. 

F I LED

United States Court of Appeals

Tenth Circuit

June 27, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

NINA JOHNSON, on behalf of herself

and all others similarly situated,

 Plaintiff-Appellant,

 v. 

HARTFORD UNDERWRITERS

INSURANCE COMPANY, a

Connecticut Corporation; HARTFORD

PROPERTY AND CASUALTY

INSURANCE COMPANY, a

Connecticut Corporation; THE

HARTFORD FINANCIAL

SERVICES GROUP, INC., a

Connecticut corporation,

 Defendants-Appellees.

No. 05-1442

(D.C. No. 04-RB-196 (MJW))

(D. Colo.)

ORDER AND JUDGMENT

*

Before BRISCOE, SEYMOUR, and ANDERSON, Circuit Judges.
Although we apply the substantive law of the forum state, Colorado, in this 1

diversity case, federal law governs our review of the propriety of the district

court’s grant of summary judgment, which we review de novo under the same

standard as applicable in the district court. See Hill v. Allstate Ins. Co., 479 F.3d

735, 739-40 (10th Cir. 2007). “Summary judgment is appropriate if ‘the

pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of

law.’” Id. at 740 (quoting FED. R. CIV. P. 56(c)) (further quotation omitted).

-2-

Nina Johnson was injured in an automobile accident in 1998 and received

approximately $100,000 in personal injury protection (PIP) benefits under an

insurance policy issued to her by the defendants (collectively, Hartford). She

brought this action seeking reformation of the policy and additional benefits on

the ground that Hartford’s offer of additional PIP (APIP) coverage, which

Ms. Johnson declined to purchase, did not comply with Colorado law. See

Thompson v. Budget Rent-A-Car Sys. Inc., 940 P.2d 987, 990 (Colo. Ct. App.

1996) (explaining that “[w]hen an insurer fails to offer the insured optional

coverage that it is statutorily required to offer, additional coverage in conformity

with the required offer is incorporated into the agreement by operation of law”).1

She also raised a variety of other claims dependent on the reformation claim. The

district court granted summary judgment in favor of Hartford, as modified in its

denial of Ms. Johnson’s motion for relief under FED. R. CIV. P. 59(e), and

Ms. Johnson appealed. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.
-3-

Hartford issued Ms. Johnson’s policy on May 28, 1992. At the time, the

Colorado Auto Accident Reparations Act, COLO. REV. STAT. §§ 10-4-701 to

10-4-726 (2003) (repealed July 1, 2003) (No-Fault Act), required insurers to

provide certain minimum or “basic” PIP benefits, regardless of fault, to persons

injured in accidents involving the insured vehicle, see COLO. REV. STAT.

§ 10-4-706 (1991), and to offer for purchase certain optional APIP benefits. See

id., § 10-4-710 (1991). Effective July 1, 1992, an amendment to the No-Fault Act

took effect that, in relevant part, changed the optional APIP coverages an insurer

was required to offer. As pertinent here, the amended statute provided:

 (2)(a) Every insurer shall offer for inclusion in a complying

policy, in addition to the [basic PIP] coverages described in section

10-4-706, at the option of the named insured:

 (I) Compensation of all [medical] expenses . . . without

dollar or time limitation; or

 (II) Compensation of all [medical] expenses . . .

without dollar or time limitations and payment of

benefits equivalent to eighty-five percent of loss of

gross income per week from work the injured person

would have performed had such injured person not been

injured during the period commencing on the day after

the date of the accident without dollar or time

limitations.

 (III) Deleted by Laws 1992, H.B. 92-1175, § 2, eff.

April 10, 1992.

 (b) A complying policy may provide that all benefits set forth in

section 10-4-706(1)(b) to (1)(e) and in this section are subject to an

aggregate limit of two hundred thousand dollars payable on account
-4-

of injury to or death of any one person as a result of any one accident

arising out of the use or operation of a motor vehicle.

COLO. REV. STAT. § 10-4-710(2) (1992) (emphasis added). The requirements of

§ 710(2) applied only “to policies issued on or after July 1, 1992.” Id.,

§ 10-4-710(4) (1992).

After the amendment took effect, Hartford sent Ms. Johnson two

documents, an “Important Notice: Personal Injury Protection (No-Fault)

Coverage Changes” (Important Notice) and a “PIP Option/Work Loss Rejection

Form” (PIP Option Form). Hartford maintains that these documents fulfilled its

statutory obligation to offer APIP coverage. Ms. Johnson disagrees. We will

examine the content of these two documents in the context of each of

Ms. Johnson’s preserved arguments. Initially, however, we address several

preliminary matters.

First, Hartford contends the amended APIP requirements apply only to new

policies issued after July 1, 1992, not to its annual renewals of Ms. Johnson’s

policy. Ms. Johnson contends Hartford waived this point by not raising it in the

district court. We need not decide either issue because even assuming the

amended APIP requirements applied to the renewals, our disposition still favors

Hartford.

Second, Ms. Johnson contends that specimen policies Hartford used from

May 1992 until March 2002 were not compliant in certain respects with amended
A third preliminary matter need not detain us long. Hartford points out, 2

and Ms. Johnson does not appear to dispute, that in its order denying

Ms. Johnson’s Rule 59(e) motion and modifying its order granting summary

judgment to Hartford, the district court erroneously applied the amended version

of § 710(2). In so doing, it concluded that the offer of APIP coverage Hartford

made in the application for the original policy issued to Ms. Johnson on May 28,

(continued...)

-5-

§ 710, and therefore Hartford could not have offered her statutorily compliant

APIP coverage. The focus of our examination in this case, however, is not on the

language of the specimen policies, but on the offer of APIP coverage Hartford

made to Ms. Johnson. An insurer’s statutory duty is to offer APIP coverage, and

it can discharge that duty even after a policy is issued. See Allstate Ins. Co. v.

Parfrey, 830 P.2d 905, 912 (Colo. 1992) (en banc) (insurer can fulfill its

continuing statutory obligation to offer additional uninsured/underinsured

motorist coverage after issuance of policy); see also Hill, 479 F.3d at 742

(applying Parfrey in APIP-offer context); Padhiar v. State Farm Mut. Auto. Ins.

Co., 479 F.3d 727, 733 (10th Cir. 2007) (same). None of the cases Ms. Johnson

cites persuades us otherwise. For this same reason, we reject her contention that

because the Important Notice and the PIP Option Form were not endorsements to

her policy, they could not cure the allegedly noncompliant description of

Hartford’s APIP coverage set forth in the policies. Similarly, we need not

examine whether the district court impermissibly considered Ms. Johnson’s lack

of reliance on the policy language in deciding not to purchase APIP coverage

when it concluded that any deficiency in the policy was irrelevant.2
(...continued) 2

1992, failed to comply with Colorado law because it bundled an extended

work-loss benefit with an essential-services benefit. We have reviewed the

statutory scheme, and Hartford’s assertion of error appears correct. Because the

error did not affect the district court’s disposition, however, it was harmless.

-6-

We now turn to the pivotal consideration, whether the Important Notice and

the PIP Option Form fulfilled Hartford’s statutory obligation to offer APIP

coverage to Ms. Johnson. We apply a “totality of the circumstances” test to

determine whether Hartford fulfilled its duty of notification and offer “in a

manner reasonably calculated to permit the potential purchaser to make an

informed decision.” Parfrey, 830 P.2d at 913, 914. Relevant factors include the

clarity and the form (oral or written) of the explanation, the specificity of the

APIP options, and whether pricing information was conveyed. See id at 913. As

we recently summarized, the No-Fault Act “merely required that the insured be

given enough information to advise the insured of the availability of [the APIP]

coverage and permit a reasonably informed decision on whether to purchase it.” 

Hill, 479 F.3d at 742-43 (quotation and brackets omitted).

Ms. Johnson’s general contention is that the Important Notice and the PIP

Option Form both contained inaccuracies about basic PIP and APIP coverage that

raised a jury question as to whether she could make a reasonably informed

decision about purchasing APIP coverage. Specifically, she argues, and Hartford

concedes, that the Important Notice incorrectly described the basic PIP benefits as

being subject to a total combined limit of $50,000 rather than the higher limit
We note Ms. Johnson’s policy contained statutorily compliant basic PIP 3

coverage and Hartford paid her all the basic PIP benefits to which she was

entitled.

-7-

prescribed by § 10-4-706(1) (1992), which the parties state was approximately

$130,000. But the only reasonable inference to be drawn here is that a person

contemplating the APIP offer may have been more likely to purchase APIP

coverage given the erroneous representation that basic PIP coverage provided a

less generous benefit than required by statute.3

Ms. Johnson next contends the Important Notice did not make clear that

there was no time limit on payment of work-loss benefits under “Option 2.” We

disagree. The first page of the Important Notice stated that the extended

work-loss benefit covered by Option 2 “includes work loss benefits beyond the

52 weeks following an accident.” Aplt. App., Vol. I at 193. The “Added PIP

Medical and Work Loss Benefit,” id. at 194 (emphasis added), provided by

Option 2 was further described on page two of the Important Notice as subject to

“[a] combined total limit of $200,000, with no time limit.” Id. at 194 (emphasis

added). And while Ms. Johnson is correct that the PIP Option Form did not

provide a similar explanation that the work-loss benefit was not limited in time,

the explanation in the Important Notice was sufficiently clear in and of itself.

Ms. Johnson also contends that a portion of the language on page two of the

Important Notice quoted above, that Option 2 is subject to “[a] combined total

limit of $200,000,” id., does not make clear that the limit is per-person,
Although Ms. Johnson argues that several other specific aspects of the 4

Important Notice and the PIP Option Form did not comply with amended § 710,

she did not present those specific points to the district court. Therefore, they are

waived. See Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 721-22 (10th Cir.

1993) (explaining that theories raised in the district court do not preserve review

of related theories). In any event, we find these arguments meritless.

-8-

per-accident, as directed by § 710(2)(b). Assuming the specific language

Ms. Johnson advocates is required under the No-Fault Act, we conclude that the

Important Notice and the PIP Option Form sufficiently informed her of the nature

of the limit. The PIP Option Form specifically states that each of the two APIP

options is “subject to a combined total limit of $200,000 per person.” Aplt. App.,

Vol. I at 196 (emphasis added). Repeated references to “an accident” in the

Important Notice make clear that the monetary cap applies per accident. See id.

at 193-94.4

Based on the totality of the circumstances, we conclude there is no genuine

issue of material fact as to whether Hartford gave Ms. Johnson enough

information to advise her of the availability of APIP coverage and whether the

information permitted her to make a reasonably informed purchase decision. 

Therefore, the judgment of the district court is AFFIRMED.

Entered for the Court

Stephanie K. Seymour

Circuit Judge