concurring in part and dissenting in part.
I respectfully dissent from Part IILD of the majority's opinion and its judgment affirming the court of appeals' conclusion that Petitioner's fraud claims are not actionable. Because nothing in the Respondents' letter denying authorization for the WhinRho treatment indicates that the misrepresentations at issue are necessarily ones of law, I would hold that the statements in the denial letter were factual misrepresentations and would remand this case for further consideration of the fraud claim.
Petitioner's fraud claim centers on a letter sent by Respondents' counsel on August 20, 1999, to Dr. Ribovich, denying authorization for Dr. Diab's recommended WhinRho drug treatment. The court of appeals determined that on the basis of this denial, Brodeur's health care providers refrained from administering treatment or performing back surgery. Brodeur v. Am. Home Assurance Co., No. 03CA1710, slip op. at 3, 2006 WL 488731 (Colo.App. Mar.2, 2006). The letter at issue asserted that the treatment was denied because Brodeur's blood condition was "not related to his industrial injury." In addition, the letter noted that the back surgery was "elective in nature."
Petitioner argues that this letter constitutes fraud because, by the time the letter was sent, the treatment had already been "deemed authoriz[ed]" pursuant to the Colorado Workers Compensation Regulations. The relevant regulation provides that a request for treatment will be deemed authorized if an insurer does not issue a written denial of the request, along with supporting information, within five business days.1 Here, the denial letter was sent after the five-day period; thus, the treatment was deemed authorized. On this basis, Petitioner contends that the statements of denial in the August 20, 1999 letter were misrepresentations of material fact, upon which Brodeur and his doctors relied in refraining from both the WhinRho treatment and the back surgery. I agree.
As the majority noted, a misrepresentation is "actionable when it is made 'either with knowledge of its untruth, or recklessly and willfully ... without regard to its consequences, and with an intent to mislead and deceive the plaintiff"" See Rhino Linings USA, Inc. v. Rocky Mountain Rhino Lining, Inc., 62 P.3d 142, 147 (Colo.2003) (quoting Parks v. Bucy, 72 Colo. 414, 418, 211 P. 638, 639 (1922)). To serve as the basis for fraud, a misrepresentation must be of a material existing fact. See Ballow v. PHICO Ins. Co., 875 P.2d 1354, 1361 (Colo.1993) (stating elements of fraud claim). In contrast, a misrepresentation of law is a "mere expression of opinion," and it cannot support an action for fraud. Metzger v. Baker, 93 Colo. 165, 167, 24 P.2d 748, 749 (1933).
Here, the denial letter was written by the insurer's counsel, who presumably is well-versed in workers' compensation law. The insurer undoubtedly sends countless letters of denial and authorization each year. Its counsel would be knowledgeable of the regulatory five-day time period. Counsel knew or should have known that the insurer's failure to send a letter within the five-day period would result in the requested treatment being deemed authorized, and therefore, knew or should have known that its subsequent letter denying authorization was false.
The majority rejects Petitioner's argument, and instead affirms the court of appeals' determination that the statements are inactionable misrepresentations of law, not fact. Here, however, the August 20, 1999 letter was not a mere expression of Respondents' opinion. The letter included no statements about what the law would permit; rather, it was a blanket statement that the insurer would not pay for treatment. This was not a legal principle up for discussion or debate. Like most workers' compensation claimants, Brodeur was in no position to dic*158tate terms to the insurer, or propose varying interpretations of legal principles.
The statements made in this case are analogous in nature to those misrepresentations of fact found in Kunz v. Warren, 725 P.2d 794 (Colo.App.1986). In Kunz, the plaintiff alleged that the defendants committed fraud when they sold him property, claiming it was "an existing subdivision, ready to be sold as lots" when the property was actually only conditionally approved and still required the installation of improvements. Id. at 796. One of the defendants argued that the misrepresentations were legal in nature and thus, could not support a fraud claim. Id. He asked the court to follow the holding of Chacon v. Scavo, 145 Colo. 222, 358 P.2d 614 (1960), where this court found that representations regarding whether certain lots were usable as building sites required an interpretation of the pertinent city ordinances and thus, were legal misrepresentations. Kunz, 725 P.2d at 796. The Kune court, however, distinguished Chacon on its facts, and held the statements concerning the ability to sell the property as lots to be representations of fact. Id. at 797. The court noted that the statements involved the "existing status" of the subdivision, and were "not based on an interpretation of the applicability of existing zoning law." Id.
In this case, the August 20, 1999 letter contained statements regarding the status of Brodeur's request for authorization. Denial of authorization on the grounds that the blood condition was not related to Brodeur's industrial injury did not require an interpretation of the applicability of existing workers' compensation law. The letter was false because the treatment had already been automatically authorized pursuant to the applicable regulation. The plain language of the statements themselves constitutes a misrepresentation of fact. See Mehaffy, Rider, Windholz & Wilson v. Cent. Bank, 892 P.2d 230, 237 (Colo.1995) (holding that attorney opinion letters are "mixed statements of law and fact that might constitute misrepresentations of material fact" on which liability could be based). Respondents here were essentially saying, "We will not pay," not "Our legal position is that we are not required to pay for treatment." The denial was a misrepresentation of fact and as such, Petitioner should have been able to assert her fraud claim.
The fact that the ALJ ultimately determined that Respondents inappropriately denied the WhinRho treatment does not negate the damage already done by Respondents' initial misrepresentations. Brodeur did not receive the drug treatment and did not undergo back surgery, due to his doctors' reliance on Respondents' statements in the August 20, 1999 denial letter. For these reasons, I would find that the statements at issue were misrepresentations of fact, and would allow Petitioner to pursue her fraud claim. Accordingly, I respectfully dissent from Part IILD of the majority opinion and join in the remainder of the opinion.
I am authorized to state that Justice HOBBS joins in this concurrence and dissent.
. 7 Colo.Code Regs. § 1101-3 (1999), subsections XVI(I) and (J), now subsections 16-9 and 16-10.