Nelson v. State Farm Mutual Automobile Insurance

                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                                    PUBLISH
                                                                         August 17, 2005
                   UNITED STATES COURT OF APPEALS
                                                                      PATRICK FISHER
                                                                                Clerk
                               TENTH CIRCUIT



 DAVID E. NELSON,

             Plaintiff-Appellant,

   v.                                                   No. 04-1366

 STATE FARM MUTUAL
 AUTOMOBILE INSURANCE
 COMPANY, an Illinois corporation,

             Defendant-Appellee.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                   (D.C. No. 03-MK-2114 (BNB))


Submitted on the briefs:

John G. Taussig, III, Boulder, Colorado, for Plaintiff-Appellant.

Sheryl L. Anderson and Suanne M. Dell, Wells, Anderson & Race, L.L.C.,
Denver, Colorado for Defendant-Appellee.


Before EBEL, BRORBY, and McCONNELL, Circuit Judges.


EBEL, Circuit Judge.
      In April 2003, Plaintiff-Appellant David Nelson filed a state-court suit for

reformation and for breach of an automobile insurance contract against

Defendant-Appellee State Farm Mutual Automobile Insurance Co. He asserted

entitlement to extended loss-of-wage personal-injury-protection (“PIP”) benefits

under the Colorado Auto Accident Reparations Act (“CAARA”), Colo. Rev. Stat.

§§ 10-4-701 to -726 (2000).     1
                                    State Farm timely removed the action to federal

district court and moved for dismissal under Federal Rule of Civil Procedure

12(c), contending that the cause of action was untimely under Colo. Rev. Stat.

§ 13-80-101(1)(j) (2002).   2
                                The district court granted the motion and Mr. Nelson

appeals. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.        3




1
       The Act has now been repealed. See Colo. Rev. Stat. § 10-4-726 (effective
July 1, 2003). The district court determined that the action is governed by the law
in effect at the time the action was commenced, and the parties do not appeal
from that holding. Aplt. App. at 56 n.2.
2
      Former section 13- 80- 101(1)(j) stated: “The following civil actions,
regardless of the theory upon which suit is brought, or against whom suit is
brought, shall be commenced within three years after the cause of action accrues,
and not thereafter: . . . [a]ll actions under the ‘Colorado Auto Accident
Reparations Act’, part 7 of article 4 of title 10.” And see Aplt. App. at 57 & n.4.
3
      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.

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                                             I.

      We review a dismissal granted under Rule 12(c) “under the standard of

review applicable to a Rule 12(b)(6) motion to dismiss.”       McHenry v. Utah Valley

Hosp. , 927 F.2d 1125, 1126 (10th Cir. 1991) (quotation marks omitted). Thus,

our review is de novo , and

      [w]e accept all well-pleaded factual allegations in the complaint as
      true and view them in the light most favorable to the nonmoving
      party. A dismissal pursuant to 12(b)(6) will be affirmed only when it
      appears that the plaintiff can prove no set of facts in support of the
      claims that would entitle the plaintiff to relief.

Clark v. State Farm Mut. Auto. Ins. Co      ., 319 F.3d 1234, 1240 (10th Cir. 2003)

(citation and quotation marks omitted). Whether a court properly applied a statute

of limitations and the date a statute of limitations accrues under undisputed facts

are questions of law we review    de novo. See Burton v. R.J. Reynolds Tobacco

Co. , 397 F.3d 906, 914 (10th Cir. 2005);     Arnold v. Air Midwest, Inc.   , 100 F.3d

857, 859 (10th Cir. 1996). The parties agree that Colorado substantive law

applies.

                                            II.

      The facts giving rise to the appeal are undisputed. Mr. Nelson was injured

in an automobile accident on April 16, 1998. After he submitted a claim under

his basic PIP policy, State Farm paid in accordance with the policy, which limited




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his loss-of-wage benefits to no more than $400/week for fifty-two weeks.

Accordingly, the last loss-of-wage PIP payment was made on April 16, 1999.

       But when Mr. Nelson purchased the policy, State Farm failed to offer him

“extended” or enhanced PIP benefits in exchange for a higher premium, as

required by section 710(2)(a) of CAARA. Under Colorado law, such failure

could result in judicial reformation of the insurance contract.       See Brennan v.

Farmer’s Alliance Mut. Ins. Co.     , 961 P.2d 550, 554 (Colo. App. 1998);      Clark ,

319 F.3d at 1238-39 & n.3. On April 15, 2003, Mr. Nelson filed suit seeking

reformation such that the insurance contract would be read to provide for

extended and enhanced loss-of-wage PIP benefits “without time or dollar

limitation” as provided in section 710(2)(a). Aplt. App. at 6. State Farm

removed the action to federal court and filed a motion to dismiss.

       Although State Farm asserted that CAARA’s three-year statute of

limitations barred suit as the basis of its motion to dismiss, Mr. Nelson responded

that only a laches analysis should apply to a suit for reformation. Applying

Colorado law, the district court implicitly held that CAARA applied and noted

that, even if a laches analysis applied, no extraordinary circumstances warranted a

departure from applying CAARA’s three-year limitation period.            See id. at 58;

Interbank Invs., L.L.C. v. Vail Valley Consol. Water Dist.        , 12 P.3d 1224, 1229-30

(Colo. App. 2000) (stating that, in laches analysis for equitable claims, court


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applies statute of limitations most analogous to “actions at law of like

character,”“[a]bsent extraordinary circumstances”);   Hersh Cos., Inc. v. Highline

Vill. Assocs. , 30 P.3d 221, 223-24 (Colo. 2001) (stating that, “[i]n determining

whether a claim falls within the purview of a particular statute of limitations,

consideration should be given to the nature of the right sued upon and not

necessarily the particular form of action or the precise character of the relief

requested.” (quotation marks omitted)).

      Noting that Mr. Nelson had not addressed the issue of accrual nor offered a

date at which time his reformation claim accrued, the court further held that the

accrual date for Mr. Nelson’s claim was, at the latest, April 16, 1999 – the date

that State Farm ceased making PIP loss-of-wage benefit payments. Aplt. App. at

59. Thus, the district court concluded that Mr. Nelson’s action was untimely.

                                         III.

      On appeal, Mr. Nelson raises three categories of issues, which we address

in the order presented on appeal.

      A. Laches.     First, Mr. Nelson claims that his case should have

“survive[d]” judgment because State Farm failed to plead laches as an affirmative

defense. Aplt. Br. at 12-13. This argument is frivolous. Mr. Nelson raised the

doctrine of laches as a counter-argument to State Farm’s claim that CAARA’s

statute of limitations barred his claim. State Farm was not required to raise a


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defense it did not believe applied, and the district court did not construe State

Farm’s statute-of-limitations defense as a laches defense.

       Equally unmeritorious is Mr. Nelson’s claim that the district court erred by

not listing circumstances to justify its application of CAARA’s statute of

limitation in a laches analysis. Under    Interbank Investments , the court was

required to list only those circumstances warranting    a departure from applying

CAARA’s statute of limitation.     See Interbank Invs., 12 P.3d at 1229-30.

Mr. Nelson pointed to no such circumstances.

       Further, we conclude that the district court properly applied CAARA’s

statute of limitations to Mr. Nelson’s claim for reformation because his lawsuit

was based on an alleged violation of CAARA and requested benefits. Section 13-

80- 101(1)(j) provides that it is to be applied to “all actions” brought under

CAARA, “regardless of the theory upon which suit is brought.” Section 13-         80-

101(1)(j). The Colorado Supreme Court has held that, when an action for benefits

is brought under CAARA, it is subject to CAARA’s three-year statute of

limitations. Jones v. Cox, 828 P.2d 218, 222 (Colo. 1992). The court has noted

that “the language ‘arising out of’ means to ‘originate from,’ ‘grow out of,’ or

‘flow from.’ It does not require a strict causal connection between the use or

operation of a motor vehicle and the accident; some causal connection suffices.”

City & County of Denver v. Gonzales      , 17 P.3d 137, 140-41 (Colo. 2001). Even


                                            -6-
though he sought the equitable remedy of reformation, Mr. Nelson’s lawsuit

clearly “arose from” rights exclusively provided under CAARA and from the

alleged violation of CAARA. The district court therefore properly applied

CAARA’s statute of limitations.

       Mr. Nelson next argues that the district court did not consider the “fact”

that his right to medical and rehabilitation expenses had not terminated at the

same time the last loss-of-wage PIP payment was received, so his delay in filing

suit could not have been unconscionable or unreasonable under a laches analysis.

Besides the fact that this argument is mooted by our holding that the district court

properly granted State Farms’ motion to dismiss that was based solely on the

application of CAARA’s statute of limitations, a review of Mr. Nelson’s brief in

response to the motion to dismiss shows that he did not raise this argument to the

district court. We therefore decline to address it.   See Tele-Communications, Inc.

v. CIR , 104 F.3d 1229, 1232 (10th Cir. 1997).

       B. Accrual date.      Mr. Nelson next argues that the district court applied an

incorrect accrual date in determining that his suit was untimely. Again, because

he did not raise this argument and made no suggestion of a proper accrual date at

the trial-court level, he has waived the issue on appeal. If we were to reach the

merits, however, we would conclude that the district court applied the proper

accrual date to his claim for loss-of-wage PIP benefits.


                                             -7-
      As mentioned above, Mr. Nelson’s suit requested reformation of the

insurance contract for violation of CAARA and damages for breach of contract.

Under Colorado law, an action for breach of contract accrues “on the date the

breach is discovered or should have been discovered by the exercise of reasonable

diligence.” Colo. Rev. Stat. § 13-80-108(6). Likewise, “[a] cause of action for

losses or damages not otherwise enumerated in this article shall be deemed to

accrue when the injury, loss, damage, or conduct giving rise to the cause of action

is discovered or should have been discovered by the exercise of reasonable

diligence.” Colo. Rev. Stat. § 13-80-108(8). Thus, whether the action was one

for reformation, breach of contract, or violation of state law, the accrual date is

when Mr. Nelson knew or should have known that State Farm had not offered him

extended PIP benefits. The district court properly found that Mr. Nelson should

have known at least by the last date he was paid loss-of-wage benefits under the

basic, limited PIP policy that State Farm had not offered him extended benefits.

      Mr. Nelson’s claim that it is “illogical and inefficient” to require a plaintiff

to file suit “while still receiving benefits” under his insurance contract is without

merit and is based on a hypothetical that he did not raise in the district court.

Further, his complaint made a claim only for extended or enhanced loss-of-wage

PIP benefits, and the basis of Mr. Nelson’s suit for reformation was a failure to

offer extended loss-of-wage benefits.   See Aplt. App. at 6. It is neither illogical


                                          -8-
nor inefficient to require a plaintiff to timely make a claim for a particular kind of

benefit while receiving a qualitatively different kind of benefit.

      Mr. Nelson next argues that the district court should be reversed because its

order stated that the purpose of reformation is to “reflect the intent of the

parties,” but Colorado case law holds that the purpose of judicial reformation

under CAARA is “to ensure that coverage meets the statutory requirements where

Plaintiff has alleged that the policy violates a statute.” Aplt. Br. at 17 (quotation

marks omitted). He argues that the district court’s misunderstanding of the basis

for reformation indicates that the court did not properly focus its inquiry. We

disagree. Notwithstanding any statements the district court made regarding the

purpose of Colorado’s judicial reformation doctrine, the district court dismissed

the case as untimely filed. Even if the purpose of reformation is to ensure that

extended coverage is offered to insureds, the Colorado legislature expressed its

intent that all actions arising under CAARA be subject to a three-year time

limitation. Contrary to Mr. Nelson’s assertions, CAARA mandates judicial

reformation only in a timely filed suit.

      C. Application of the proper legal standards.         Finally, Mr. Nelson

argues that reversal is required because, despite accepting as true the facts alleged

in his complaint, the district court dismissed the case without knowing when his

other PIP benefits ended and based its dismissal only on an accrual date starting


                                           -9-
from the date the last loss-of-wage PIP benefit was paid. This argument is no

more than a rehash of his unpreserved accrual arguments addressed   supra , and is

founded on the flawed premise that a right to reformation exists even when suit is

not timely filed.

      Appellant’s motion to file a supplemental brief on the issue of equitable

tolling is DENIED.

      The judgment of the district court is      AFFIRMED .




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