Reid v. Geico General Insurance

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
August 24, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

D EN ISE R EID ,

Plaintiff-Appellant,
No. 06-1484
v.

GEICO GENERAL INSURANCE
COM PA NY, a M aryland corporation,

Defendant-Appellee.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF COLORADO
(D.C. No. 05-CV-01321-RPM )

Submitted on the briefs: *

Robert B. Carey, Frances R. Johnson, The Carey Law Firm, Colorado Springs,
Colorado, for Plaintiff-Appellant.

M eloney Cargil Perry, Baker & M cKenzie, Dallas, Texas, and Gregory K. Falls,
Deisch, M arion & Klaus, P.C., Denver, Colorado, for Defendant-Appellee.

Before TA CH A, Chief Judge, M U RPH Y and HO LM ES, Circuit Judges.

*
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.
TA CH A, Chief Judge.

Plaintiff Denise Reid appeals from a district court order denying her motion

for partial summary judgment and awarding summary judgment in favor of

defendant GEICO General Insurance Company (“GEICO”) in this action seeking

reformation of an automobile insurance contract. W e have jurisdiction under

28 U.S.C. § 1291, and we affirm.

I. Background

The Colorado Auto Accident Reparations Act, Colo. Rev. Stat. §§ 10-4-701

to 726 (repealed July 1, 2003) (“No-Fault Act” or “Act”), was enacted in 1973

with the purpose of avoiding inadequate compensation to all victims of

automobile accidents in the State of Colorado. It required complying automobile

insurance policies to include certain minimum or basic personal injury protection

(“PIP”) benefits to compensate injured persons for medical expenses and lost

wages resulting from an automobile accident. The No-Fault Act also required an

insurer to offer, in exchange for higher premiums, optional enhanced PIP

coverage, and it was GEICO’s obligation with respect to this enhanced coverage

that gave rise to this lawsuit.

As pertinent here, the Act provided:

Every insurer shall offer for inclusion in a complying policy, in
addition to the coverages described in section 10-4-706 [governing
basic PIP], at the option of the named insured:

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 (I) Compensation of all expenses of the type described in section
10-4-706(1)(b) 1 without dollar or time limitation; or

(II) Compensation of all expenses of the type described in section
10-4-706(1)(b) 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 comm encing on the
day after the date of the accident without dollar or time limitations.

Colo. Rev. Stat. § 10-4-710(2)(a) (1999).

In September 1999, M s. Reid called GEICO and purchased an automobile

insurance policy over the telephone. The policy she chose included the minimum

PIP coverage required under the Act. W ithin days of the telephone call, GEICO

mailed to M s. Reid a New Business Packet, which included a copy of her policy

and various other forms relating to her coverage and other coverage that it

offered, including enhanced PIP. The only form that is relevant to this appeal,

however, is GEICO’s Colorado Information and Option Form (“O ption Form”),

which set forth its options for both basic and enhanced PIP coverage. GEICO

claims that between September 1999 and the date of the accident at issue in this

lawsuit, it sent its Option Form to M s. Reid six times, one was included in the

New Business Packet and five more were sent in conjunction with later renewals.

In support of its motion for summary judgment, GEICO submitted one such

1
Section 10-4-706(1)(b) governed an insurer’s duty to offer minimum
coverage for “all reasonable and necessary expenses for medical, chiropractic,
optometric, podiatric, hospital, nursing, x-ray, dental, surgical, ambulance, and
prosthetic services, and nonmedical remedial care and treatment . . . .”

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Option Form, bearing M s. Reid’s signature and the date M arch 21, 2000. GEICO

claims that this is the only Option Form that M s. Reid ever signed and returned.

The first two pages of the signed Option Form comprise descriptions of the

basic PIP and enhanced PIP coverage options available under M s. Reid’s

insurance policy. The second page contains a sub-section entitled

“Part 3 – Additional Personal Injury Protection (APIP) Options.” Aplt. App.

at 195. This sub-section describes GEICO’s options for enhanced PIP coverage

and begins with the following introductory paragraph:

Higher limits of PIP coverage are available at your option. The
higher limits are described below. For these options the separate
$50,000 limit for medical expenses is replaced by a single aggregate
limit for all PIP benefits that apply. The premium for APIP is based
on a percentage of your Basic PIP premium. If you selected the PPO
option for Basic PIP in Part 1, it will also apply to A PIP. However,
unlimited APIP (options 4, 5 or 6) is not available with the PPO
option. APIP is not available with the Limited Basic PIP option.

Id. Below this paragraph is a box listing six options for enhanced PIP coverage.

Each option is designated with an option number in the first column, followed by

three more columns setting forth for each option (a) the “Total A ggregate Limit

of Applicable PIP Benefits;” (b) the applicable “Work Loss Limitations;” and

(c) a percentage reflecting the “Approximate Additional Premium Per Vehicle.”

Id. GEICO offered this enhanced PIP coverage at various rates ranging from 35%

to 900% additional premium per vehicle. M s. Reid, however, declined all options

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by checking a box next to the statement “I do not want Additional PIP Benefits.”

Id.

In July 2002, M s. Reid was injured in an accident while driving her

GEICO-insured vehicle. GEICO paid her the full amount of the basic PIP

benefits to which she was entitled under the terms of her policy. It did not pay

for any enhanced PIP benefits. In July 2005, M s. Reid sued GEICO in federal

court based on diversity of citizenship, claiming that GEICO’s offer of enhanced

PIP coverage failed to meet the requirements of the No-Fault Act as interpreted in

controlling case law. Her complaint alleges that she has unpaid medical expenses

and work losses and seeks reformation of her insurance policy to provide

unlimited medical and wage loss benefits. She also asserts causes of action for

breach of contract and bad faith.

Shortly after M s. Reid filed her complaint, the parties filed cross-motions

for sum mary judgment. M s. Reid argued that GEICO’s offer of enhanced PIP

coverage w as deficient under the Act, and GEICO countered that M s. Reid’s

claims were baseless because she had explicitly rejected enhanced PIP coverage

in the M arch 21, 2000, O ption Form. The district court ruled in favor of GEICO,

concluding that its offer of enhanced PIP coverage to M s. Reid, reflected in the

signed Option Form, was sufficient to satisfy its obligations under the No-Fault

Act.

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 Although the court rejected all of M s. Reid’s arguments, only some of them

are relevant here. First, it rejected her claim that GEICO violated the Act by

failing to offer enhanced coverage in writing prior to issuing her insurance policy.

See Colo. Rev. Stat. § 10-4-706(4)(a) (1999) (requiring pre-sale written

explanation of minimum PIP coverage). The court declined to interpret the

statutory text and instead held that even if the Act imposed such an obligation

with respect to enhanced PIP coverage, GEICO’s failure to make a pre-sale

written offer was harmless given the multiple written offers that it extended

before M s. Reid’s accident. Second, the court concluded that GEICO’s offer of

enhanced PIP coverage was sufficient even though it did not specify that its

work-loss benefits were payable at the 85% level, as set forth in

§ 10-4-710(2)(a)(II). Finally, the court rejected M s. Reid’s arguments based on

what her enhanced PIP coverage would have been had she decided to buy it.

Ultimately, the district court concluded that granting M s. Reid the relief she

requested “would give her the benefit of a policy [with] a premium cost 900%

greater than what she paid.” Aplt. App. at 919. Reformation, the court observed,

is an equitable remedy, and it concluded that granting M s. Reid that form of relief

“would not only be inequitable, it would be unconscionable.” Id. at 919-20. This

appeal followed.

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 II. Analysis

In this diversity case, the laws of Colorado, the forum state, govern our

analysis of the underlying claims while federal law determines the propriety of

the district court’s grant of summary judgment. Hill v. Allstate Ins. Co., 479 F.3d

735, 739 (10th Cir. 2007). “W e review the grant of summary judgment de novo,

applying the same standard as the district court pursuant to Rule 56(c) of the

Federal Rules of Civil Procedure.” Id. at 739-40 (alteration and quotation

omitted). In applying the standard set forth in Rule 56(c), we must examine the

record in the light most favorable to M s. Reid, the non-moving party. Id.

M s. Reid claims that in entering summary judgment in favor of GEICO, the

district court overlooked significant flaws in its offer of enhanced PIP coverage.

She makes a number of interrelated arguments on appeal, which, for ease of

discussion, we distill to three main points. First, she maintains that GEICO’s

offer of enhanced PIP coverage could not have satisfied its obligations under the

No-Fault Act because GEICO did not even have statutorily-compliant coverage to

offer. Specifically, she claims G EICO’s enhanced PIP work loss benefit

terminated when the injured person reached age 65, in violation of

§ 10-4-710(2)(a). Second, she argues that GEICO’s offer of enhanced PIP

coverage was not reasonably calculated to permit her to make an informed

decision as required under Allstate Ins. Co. v. Parfrey, 830 P.2d 905, 913

(Colo. 1992). And third, she challenges the district court’s determination that

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reformation of her policy would be unconscionable, arguing that this conclusion

was based on an improper assumption that she did not wish to purchase enhanced

PIP coverage. W e address each of these arguments in turn.

A. G EICO ’s Allegedly N on-Compliant Coverage

According to M s. Reid, the Option Form that she signed contained an offer

of enhanced PIP coverage that, a close examination of GEICO’s policies revealed,

did not exist. Specifically, she claims that the only endorsement that was

available for her to purchase imposed a time limitation on the w ork loss

benefit – until the injured person reached age 65. Since § 10-4-710(2)(a)(II)

requires that the offer of compensation of work loss benefits be “without dollar or

time limitations,” M s. Reid claims that GEICO’s enhanced PIP coverage, as

reflected in its endorsement, failed to comply with the statute. Thus, she argues,

the district court had no choice but to conclude that GEICO violated the Act. W e

disagree. M s. Reid’s argument is based on the incorrect premise that

§ 10-4-710(2)(a) applies to insurance policies. It does not. The plain text of the

statute, which necessarily governs our construction, Parfrey, 830 P.2d at 911,

makes clear that its mandate applies to offers of enhanced PIP coverage. It

requires that “[e]very insurer shall offer for inclusion in a complying policy . . . at

the option of the named insured” the coverages set forth in sub-sections I and II.

§ 10-4-710(2)(a) (emphasis added). “The plain meaning of this language is that a

named insured who has minimum PIP coverage under § 10-4-706 must be offered

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the opportunity to purchase certain types of enhanced PIP coverage.” Hill,

479 F.3d at 741 (quotation omitted). Therefore, the focus of our examination is

not the language of any endorsement, which, notably, M s. Reid chose not to

purchase, but GEICO’s offer of enhanced PIP coverage as reflected in the signed

Option Form. See Brennan v. Farmers Alliance Mut. Ins. Co., 961 P.2d 550, 554

(Colo. Ct. App. 1998) (explaining that “all that is required [under § 10-4-710] is

that the insurer offer these extended benefits.”).

W e conclude that the Option Form contained an adequate offer of enhanced

PIP coverage under the Act. The Colorado Court of Appeals recently clarified

that the No-Fault Act required insurers to offer the enhanced PIP coverage

described in both subsections I and II of § 10-4-710(2)(a). Soto v. Progressive

M tn. Ins. Co., ___ P.3d ___, 2007 W L 2128189, at *4 (Colo. Ct. App. July 26,

2007) (reversing district court’s grant of summary judgment to insurer). Thus,

GEICO was required to offer M s. Reid the enhanced medical benefit option

described in subsection I and the enhanced medical benefit plus work loss option

described in subsection II. See id. GEICO’s “Option 1,” offered at 35%

additional premium, satisfied subsection I (enhanced medical benefits) because it

offered enhanced medical coverage with an aggregate PIP limit of $200,000.

Aplt. App. at 195. And for 900% additional premium, “Option 5” offered

unlimited PIP coverage and a weekly work loss benefit unlimited in amount and

duration. Id. This was sufficient to satisfy subsection II (enhanced medical

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benefits plus wage loss option). W e therefore, reject any contention that

GEICO’s O ption Form failed to offer coverage sufficient to satisfy the No-Fault

Act.

B. Sufficiency of the O ffer Under Parfrey

In Parfrey, the Colorado Supreme Court held that an insurer’s duty to offer

for purchase coverage higher than the minimum statutory limits “must be

performed in a manner reasonably calculated to permit the potential purchaser to

make an informed decision . . . .” 830 P.2d at 913. 2 The Parfrey court also

provided the following factors for us to consider in evaluating an insurer’s

performance with respect to its offer of enhanced coverage:

In determining whether an insurer has fulfilled its statutory
duty, a court may appropriately consider such factors as the clarity
with which the purpose of [PIP] coverage was explained to the
insured, whether the explanation was made orally or in writing, the
specificity of the options made known to the insured, the price at
which the different levels of [PIP] coverage could be purchased, and
any other circumstances bearing on the adequacy and clarity of the
notification and offer.

Id. at 913. As the court went on to explain, however, in the final analysis, the

determination of whether an insurer properly discharged its statutory duty to offer

enhanced PIP coverage must be based on the totality of circumstances. Id. at 914.

2
Although Parfrey involved an insurer’s duty to offer enhanced
uninsured/underinsured motorist coverage, we have held that its mandate applies
equally to an insurer’s obligation with respect to enhanced coverage under the
No-Fault A ct. Hill, 479 F.3d at 742; Padhiar v. State Farm M ut. Auto. Ins. Co.,
479 F.3d 727, 733 (10th Cir. 2007).

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 M s. Reid points to the following in support of her argument that GEICO’s

offer w as deficient under Parfrey: (a) she did not receive any written explanation

of enhanced PIP coverage before she obtained her policy; (b) she did not

understand the difference between basic PIP and enhanced PIP coverage, and the

Option Form provided no clarification; and (c) the Option Form did not provide

that the work loss benefit was payable at 85% as described in

§ 10-4-710(2)(a)(II). Having considered these arguments we conclude that even

if M s. Reid’s subjective understanding of enhanced PIP coverage was lacking, the

Option Form that she signed was sufficient to discharge GEICO’s duty under the

Act as interpreted in Parfrey.

M s. Reid emphasizes throughout her brief that she did not receive a written

explanation of enhanced PIP coverage until after GEICO issued her policy, and

this, she argues, mandates reformation. Part of this argument stems from the

No-Fault Act’s requirement that an insurer “provide written explanations of all

available coverages prior to issuing any policy to an insured.” § 10-4-706(4)(a).

This requirement, however, appears in the section of the No-Fault Act governing

minimum or basic PIP coverage, not enhanced PIP, which is dealt with later in

§ 10-4-710. Therefore, it is far from clear that its mandate applies to GEICO’s

offer of enhanced PIP coverage to M s. Reid. W e need not decide the issue,

however, because w e agree with the district court that any failure on GEICO’s

part was cured long before M s. Reid had her accident. See Padhiar v. State Farm

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Auto. Ins. Co., 479 F.3d 727, 732-33 (10th Cir. 2007) (declining to decide

whether No-Fault Act required written explanation of enhanced PIP coverage

based on finding that written explanation had, in fact, been provided). Under

Colorado law, “[i]f the insurer fails to discharge its duty [to offer enhanced

coverage] prior to the issuance of the policy, the duty continues and can be

discharged . . . by an adequate notification and offer on some future occasion.”

Parfrey, 830 P.2d at 912. Because M s. Reid purchased her policy over the

telephone, she obviously did not have the benefit of any written materials.

But it is also undisputed that she received at least one written offer of enhanced

PIP coverage on or before M arch 21, 2000. W e hold that this offer discharged

any continuing duty that GEICO might have had to provide a written explanation

and offer of enhanced PIP coverage. See id.

W e also hold, guided by the factors set forth in Parfrey, that GEICO’s offer

of enhanced PIP coverage was reasonably calculated to permit M s. Reid to make

an informed decision. The Option Form was in writing and clearly spelled out

that “[h]igher limits of PIP coverage [were] available at [M s. Reid’s] option.”

Aplt. App. at 195. The form also explained the purposes of PIP coverage in

general:

Personal Injury Protection coverage (PIP) pays for reasonable and
necessary medical expenses, rehabilitation expenses, loss of earnings,
essential services and death benefits subject to a maximum if you
have an accident, no matter w ho was at fault. Basic PIP benefits are
required by law on all motor vehicles located in Colorado.

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Id. at 194. M s. Reid’s options for enhanced PIP coverage were set forth, albeit

briefly, in a cogent and understandable format that included the key information

that a reasonable purchaser would need to make an informed decision. The

Option Form explained what the aggregate dollar limit would be for each option,

the amount of the work loss benefit, and how much additional premium M s. Reid

would have to pay. Despite this information, M s. Reid claims that she did not

understand her options with respect to enhanced PIP coverage. Parfrey, however,

suggests that we look to the objective reasonableness of GEICO’s offer, not the

potential purchaser’s subjective understanding. Indeed, none of the factors

identified by the Parfrey court mention whether the insured actually understood

the insurer’s offer of coverage. Cf. Leahy v. Guar. Nat’l Ins. Co., 907 P.2d 697,

700 (Colo. Ct. App. 1995) (explaining that “the reasonableness of an insurer’s

conduct [in a bad faith case] is measured by objective standards of conduct in the

insurance industry.”). In this case, the Parfrey factors weigh in favor of GEICO.

Finally, M s. Reid contends that GEICO’s offer was deficient for failing to

provide a work loss benefit payable at less than the full amount of the injured

person’s average weekly income. For support, she points to language in

§ 10-4-710(2)(a)(II) requiring an insurer to offer “payment of benefits equivalent

to eighty-five percent of loss of gross income per week.” M s. Reid, however, has

failed to point to a single case holding that under these circumstances an insurer’s

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offer of enhanced PIP coverage must specify that work loss benefits are payable

at the 85% level. And we can think of no reason to disagree with the district

court’s conclusion that such specificity is not required. See Aplt. A pp. at 919.

W e therefore reject this challenge to GEICO’s offer and conclude based on the

totality of the circumstances that GEICO’s offer of enhanced PIP coverage to

M s. Reid w as reasonable under Parfrey.

C. Appropriateness of Reformation

M s. Reid’s final challenge to the district court’s order concerns its

determination that reformation of her insurance policy would be unconscionable

in light of her explicit w aiver of the work loss benefit. See Aplt. App. at 919

(stating that “[i]n practical terms, [M s. Reid] is seeking a judgment requiring

[GEICO] to pay unlimited PIP benefits to her after she elected to keep her

premiums at the lowest level by disclaiming that she was employed.”). M s. Reid

contends that this statement reveals the district court’s improper assumption that

she would not have purchased enhanced PIP coverage regardless of the adequacy

of the offer. This argument, however, ignores the remainder of the district court’s

analysis and exaggerates the importance it placed on M s. Reid’s waiver of the

work loss benefit. It is clear from the court’s opinion that it rejected M s. Reid’s

claim for reformation because it concluded that GEICO had made an adequate

offer of enhanced PIP coverage, which M s. Reid rejected. Neither its analysis nor

its conclusion was erroneous.

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 “Generally, the purpose of reformation of an insurance contract is to make

the policy express the true intent of the parties.” Thom pson v. Budget

Rent-A-Car, 940 P.2d 987, 990 (Colo. Ct. App. 1996). Reformation is also

required, however, w hen an offer of coverage fails to meet statutory requirements.

Under those circumstances, “additional coverage in conformity with the required

offer is incorporated into the agreement by operation of law.” Id. M s. Reid

correctly observes that it is improper for a district court to speculate as to whether

an insured would have purchased enhanced PIP coverage when such coverage was

never offered. See id. (affirming reformation of policy and holding that “driver’s

after-the-fact statement that he would have refused the additional coverage if it

had been offered [did] not require a different result.”). But in her case, enhanced

PIP coverage was offered and we have already upheld the sufficiency of the offer

under the No-Fault A ct. Under these circumstances, reformation is not available.

The judgment of the district court is AFFIRMED.

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