Opinion
Civil Action 22-cv-01385-CNS-KLM
10-04-2022
SHEILA BURNETT, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Kristen L. Mix. United States Magistrate Judge.
This matter is before the Court on Defendant's Motion to Dismiss for Failure to State a Claim [#11] (the “Motion”). The Motion [#11] has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), Fed.R.Civ.P. 72(a) and (b), and D.C.COLO.LCivR. See [#15, #20]. Plaintiff filed a Response in Opposition to the Motion [#13, and Defendant filed a Reply [#17]. The Court has reviewed the Motion [#11], the Response [#13], the Reply [#17], the entire case file and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the court respectfully RECOMMENDS that the Motion [#11] be GRANTED.
For the purposes of resolving the Motion [#11], the Court accepts as true all well-pled, as opposed to conclusory, allegations made in Plaintiff's Complaint [#7]. See Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Plaintiff is an individual and resident of the State of Colorado. Compl. [#7] ¶ 1. Defendant State Farm Mutual Insurance Corporation (“State Farm”) is a corporation conducting insurance business in the State of Colorado. Id. ¶ 2. This case was originally filed in state court, then removed to this Court based on diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). Notice of Removal [#1]. The matter arises from claims made by Plaintiff under an insurance policy (the “Policy”) issued by State Farm to Plaintiff. See Compl. [#7] ¶ 9.
As to the facts relevant to the claims, on February 26, 2021, a vehicle operated by Donovan Kerns collided with Plaintiff's vehicle, injuring her. Compl. [#7] ¶¶ 5-7. At the time of the collision, Mr. Kerns was insured under an automobile insurance policy with Geico Insurance Company. Id. ¶ 8. With State Farm's consent, Plaintiff settled her claim against Mr. Kerns for the policy limit of $25,000. Id. ¶ 11. Plaintiff was insured under State Farm's policy for underinsured motorist (“UIM”) benefits, with coverage limits of $25,000 per person and $50,000 per incident. Id. ¶ 9. Plaintiff requested that State Farm investigate, evaluate, and pay UIM benefits in accordance with the policy. Id. ¶ 15. Plaintiff avers that she cooperated with State Farm in its investigation of the claim, including submitting a medical authorization and records requested by State Farm. Id. ¶¶ 16-18. Plaintiff further avers that State Farm failed to issue the full amount of UIM payments owed to Plaintiff under Colorado law. Id. ¶ 24.
On January 6, 2022, State Farm evaluated Plaintiff's UIM claim at a value of $34,336.26, issued a Fisher payment in the amount of $6,336.26 for the undisputed economic losses included in its claim evaluation, and extended a compromise settlement offer to Plaintiff of $9,336.26. See Motion [#11] at 3 (citing Compl. [#7] ¶¶ 20, 22-23, 25; Ex. A, Jan. 6, 2022, letter; Ex. B, Feb 15, 2022, letter.
A Fishe r payment refers to the requirement that an insurer pay a “covered benefit” under the Policy, including undisputed economic injuries in the form of medical expenses for injuries a claimant incurred from the accident. An insurer has a duty not to unreasonably delay or deny such payment, notwithstanding that other components of the UIM claim may be subject to reasonable dispute, such as noneconomic damages. Fisher v. State Farm Mut. Auto. Ins. Co., 419 P.3d 985, 990 (Colo.App. 2015).
The Court may consider these exhibits as well as Exhibit D without converting the Motion [#11] into a motion for summary judgment because they are referred to in the Complaint [#7], appear to be central to Plaintiff's claims, and the parties do not dispute the documents' authenticity. McKinney v. State Farm Mut. Auto. Ins. Co., No. 20-cv-01651-CMA-KLM, 2021 WL 4556081, at *2 n.4 (D. Colo. Feb. 16, 2021) (citing Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). The other two exhibits attached to the Motion are legal authority which the Court may appropriately consider.
Plaintiff avers that State Farm issued a payment of $6,336.26 without explanation, even though it knows that Colorado law requires insurers to pay undisputed amounts to its insureds. Compl.[#7] ¶¶ 20-21, 26. Plaintiff further avers that in response to her request for information about the payment, State Farm sent Plaintiff a letter dated February 15, 2022, explaining it evaluated Plaintiff's claim in the amount of $34,336.26. State Farm failed, however, according to Plaintiff, to comply with Colorado law by refusing to issue any additional payments to address the difference between that evaluation and the underlying liability policy limits, amounting to $9,336.26. Id. ¶¶ 23-24. Plaintiff alleges that State Farm's characterization of the evaluation amount as an “offer” was designed to create the misperception that (1) Plaintiff was required to negotiate with State Farm to obtain the full benefits owed under the Policy, and (2) the amount State Farm had evaluated Plaintiff's claim as being worth was ‘disputed' as that terms is understood in Colorado law, and (3) Plaintiff was required to give consideration (in the form of a release) in order to obtain full benefits. Id. ¶¶ 34-38, 45-46. Plaintiff concludes that State Farm has no reasonable basis for its position. Id. ¶ 55. Accordingly, Plaintiff asserts that State Farm has failed to act in good faith. Id. ¶ 49.
Plaintiff asserts three claims: (1) breach of contract-UIM benefits; (2) a first party statutory claim for unreasonable delay or denial of benefits under Colo. Rev. Stat. §§ 103-1115 and 1116; and (3) common law bad faith. See Compl. [#7]. State Farm argues in its Motion [#11] that Plaintiff's second and third claims should be dismissed for failure to state a claim.
II. Standard of Review
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); Fed.R.Civ.P. 12(b)(6) (stating that a complaint may be dismissed for “failure to state a claim upon which relief can be granted”). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Sutton v. Utah State Sch. For the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (citation omitted). To withstand a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain enough allegations of fact to state a claim for relief that is plausible on its face.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (“The complaint must plead sufficient facts, taken as true, to provide ‘plausible grounds' that discovery will reveal evidence to support the plaintiff's allegations.”) (quoting Twombly, 550 U.S. at 570).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Id. (brackets in original; internal quotation marks omitted).
To survive a motion to dismiss pursuant to Rule 12(b)(6), the factual allegations in the complaint “must be enough to raise a right to relief above the speculative level.” Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,” a factual allegation has been stated, “but it has not show[n] that the pleader is entitled to relief,” as required by Fed.R.Civ.P. 8(a). Iqbal, 556 U.S. at 679 (second brackets added; citation and internal quotation marks omitted).
Because the Court's jurisdiction in this lawsuit is based on diversity of citizenship pursuant to 28 U.S.C. § 1332(a), the Court applies federal procedural law and Colorado substantive law. See Notice of Removal [#1] at 2-4; Essex Ins. Co. v. Vincent, 52 F.3d 894, 896 (10th Cir. 1995); Trierweiler v. Croxton & Trench Holding Corp, 90 F.3d 1523, 1539 (10th Cir. 1996).
State Farm argues that Plaintiff has failed to state a claim with respect to both her statutory bad faith claim for unreasonable delay or denial of benefits and her common law bad faith claim. Motion [#11] at 5-12. The Court first addresses the legal framework for Plaintiff's claims and then turns to State Farm's argument that Plaintiff's allegations that its conduct was unreasonable, as required to state a bad faith claim, are not plausible as a matter of law.
A. Legal Framework for Plaintiff's Bad Faith Claims
Although similar, the requirements of a common law bad faith claim under Colorado law are heightened compared to those of a statutory bad faith claim. Both common law and statutory bad faith claims require that a plaintiff first be entitled to payment of benefits. See Simental v. State Auto. Mut. Ins. Co., No. 21-cv-01725-CMA-NYW, 2022 WL 204603, at *2 (D. Colo. Jan. 24, 2022) (“A bad faith claim must fail if the plaintiff was not entitled to benefits under the policy.”) (citing Gerald H. Phipps, Inc. v. Travelers Prop. Cas. Co. of Am., 679 Fed.Appx. 705, 710 (10th Cir. 2017)). Further, both types of bad faith claims require a showing of unreasonable conduct. Trujillo v. State Farm Mut. Auto. Ins. Co., No. 18-cv-0410-WJM-NRN, 2019 WL 3996882, at *8 (D. Colo. Aug. 23, 2019) (citing Goodson v. Am. Standard. Ins. Co. of Wisc., 89 P.3d 409, 414 (Colo. 2004)). However, a common law insurance bad faith claim requires the insured to sufficiently allege both that the insurer acted unreasonably under the circumstances and that the insurer knowingly or recklessly disregarded the validity of the insured's claim, while “the only element at issue in a statutory claim is whether an insurer denied [or delayed] benefits without a reasonable basis.” Fisher v. State Farm Mut. Auto. Ins. Co., 419 P.3d 985, 990 (Colo.App. 2015) (Fisher I), aff'd State Farm Mut. Auto. Ins. Co. v. Fisher, 418 P.3d 501, 506 (Colo. 2018) (Fisher II). Here, State Farm's Motion [#11] is premised on whether Plaintiff has sufficiently alleged the common element of these two claims, i.e., whether State Farm engaged in unreasonable conduct. Motion [#11] at 5-12.
Plaintiff asserts a first-party claim, i.e., she is suing her own insurer for UIM benefits to which she is directly entitled under the terms of the insurance policy. Bucholz v. Safeco Ins. Co. of Am., 773 P.2d 590, 593 (Colo.App. 1988). “[F]irst-party cases differ from third-party cases because, in a first-party action, the defendant insurance company owes the plaintiff-insured a duty of good faith.” Sunahara v. State Farm Mut. Auto. Ins. Co., 280 P.3d 649, 657 (Colo. 2012). The basis for liability is “the insurer's conduct in unreasonably refusing to pay a claim and failing to act in good faith, not the insured's ultimate financial liability.” Sanderson v. Am. Fam., 251 P.3d 1213, 1217 (Colo.App. 2010) (quoting Goodson, 251 P.3d at 1217). Thus, the inquiry is “whether reasonable jurors could conclude that in the investigation, evaluation, and processing of the claim, the insurer acted unreasonably....'” Id. at 1219 (quoting Zilisch v. State Farm Mut. Auto. Ins. Co., 995 P.2d 276, 280 (Ariz. 2000)). The reasonableness of the insurer's conduct is viewed objectively. Id. at 1217.
UIM coverage is “for damage for bodily injury or death that an insured is legally entitled to collect from the owner or driver of an underinsured motor vehicle.” Colo. Rev. Stat. § 10-4-609(4).
B. Whether Plaintiff Has Sufficiently Averred Unreasonable Conduct
As State Farm notes, Plaintiff's Complaint [#7] essentially alleges that State Farm evaluated Plaintiff's UIM claim, made a compromise settlement offer, and advanced the undisputed economic damages portion of its evaluation while attempting to characterize it as disputed. Plaintiff's Complaint [#7] further alleges it was unreasonable that State Farm did not advance the entire amount due or its entire compromise settlement offer under Fisher I, and that State Farm required a release from Plaintiff in connection with its offer.
State Farm argues that Plaintiff's statutory and common law claims of bad faith rest on the “faulty premise” that Plaintiff is entitled to the full settlement offer from State Farm, but this premise is at odds with Colorado law and cannot support Plaintiff's claims for statutory bad faith or common law bad faith. Motion [#11] at 12. Regarding both claims, State Farm argues that, as a matter of law, it did not engage in unreasonable conduct because the full value of the UIM claim was in dispute, insurers are not required to tender the full amount of a settlement offer, and settlement offers can be conditioned on an insured's release. See Fisher I, 419 P.3d at 988; McKinney v. State Farm Mutual Automobile Insurance Company, 2021 WL 4472921 (D. Colo. Sept. 30, 2021). The Court agrees with State Farm and finds that Plaintiffs' Complaint [#7] fails to allege specific facts from which reasonable jurors could conclude that State Farm acted unreasonably in handling Plaintiffs' claim. See Sanderson, 251 P.3d at 121.
As an initial matter, Plaintiff does not offer sufficient allegations to substantiate her central assumption that her medical records documented injuries that were undisputed and that entitled her to UIM benefits. See Compl. [#7] ¶ 22-24. Instead, Plaintiff alleges that State Farm “purposely avoids documentation of whether damages are disputed or undisputed so it can avoid payment of damages to its insureds.” Id. ¶ 29. Plaintiff fails to explain or aver how the amount in deficit between the initial Fisher payment and State Farm's claim evaluation represented undisputed damages such that the full value of the claim was owed to her. See Compl. [#7] ¶ 24. While Plaintiff states that she is owed the “full amount of UIM benefits[,]” her statements in support of this assertion are conclusory and do not establish that the remaining damage amount in question is a medical expense and thus constitutes undisputed, economic damages. Compl. [#7] ¶ 37. To the extent that Plaintiff appears to assert that State Farm's determination of the undisputed medical expenses was not made in good faith, the only factual assertion made by Plaintiff in that regard relates to a radiology evaluation that is not referenced in the Complaint but in Plaintiff's Response to the Motion to Dismiss. See Response [#13]. It is well-settled that a plaintiff cannot “amend her complaint by adding factual allegations in response” to a motion to dismiss. Abdulina v. Eberl's Temporary Servs., 79 F.Supp.3d 1201, 1206 (D. Colo. 2015) (citing Jojola v. Chavez, 55 F.3d 488, 494 (10th Cir.1995) (holding that a court is limited to assessing the legal sufficiency of the allegations contained within the four corners of the complaint) (citation omitted)).
Moreover, as even Plaintiff acknowledged in the Response [#13], State Farm's stated reason in its February 1, 2022 letter for refusing to consider this treatment was that it appeared to relate to thyroid nodules, and that thyroid nodules would “not be acute in nature or be a result of” the motor vehicle accident. Id. at 6. State Farm argues, and the Court agrees, that. Plaintiff's Response fails to allege (even unpled) facts that this position was unreasonable, or that Plaintiff provided any additional information to State Farm to support her contention that the thyroid nodules were causally related to the accident. See Reply at 2, 5. While Plaintiff argues that State Farm's explanation “unreasonably disregards the fact that thyroid nodules and related issues can be affected by physical trauma, including from a car crash,” this is purely speculative and unsupported by any factual allegations. Twombly, 550 U.S. at 545 (holding that speculative allegations are insufficient to raise a right to relief).
In short, Plaintiff cannot maintain a cognizable bad faith claim if she fails to establish that State Farm owed her any further payment for undisputed damages under the Policy. See Simental, 2022 WL 204603, at *2. Beyond Plaintiff's conclusory statement that State Farm owes her “the full amount of UIM benefits”, Plaintiff must plead sufficient factual allegations plausibly establishing why she is entitled to further benefits under the Policy. See Garcia v. State Farm Mut. Auto. Ins. Co., No. 21-cv-01504-CMA-MEH, 2021 WL 577029, at *2 (D. Colo. Dec. 6, 2021) (dismissing bad faith UIM claims when plaintiff failed to explain why settlement with at-fault driver was insufficient to cover damages). Here, Plaintiff states that State Farm failed “to investigate Plaintiff's injuries” or pay benefits “due in an appropriate manner.” Compl. [#7] ¶ 40(d). These vague assertions do not exempt Plaintiff from providing the “further factual enhancement” required to survive a motion to dismiss. Iqbal, 556 U.S. at 678; see also Simental, 2022 WL 204603, at *2 (dismissing bad faith UIM claim when plaintiff alleged no facts “regarding the amount of [medical] expenses or the nature and extent of her ongoing injuries”).
Even if Plaintiff does sufficiently allege that she is entitled to benefits under the Policy, she fails to adequately allege unreasonable conduct by State Farm. Plaintiff's allegations in the Complaint [#7] fail to acknowledge that a compromise settlement offer as to disputed benefits is legal under Colorado law and may be used to resolve a claim. Moreover, as to the alleged unreasonable conduct, Plaintiff again fails to provide the “factual enhancement” required to survive a motion to dismiss. Iqbal, 556 U.S. at 678. For example, Plaintiff alleges that:
34. State Farm used the word “offer” in its letter outlining the amount that State Farm had evaluated Plaintiff's UIM claim as being worth in order to mischaracterize that amount as one that is “disputed” as that term is understood and used in Colorado law.
35. State Farm is aware that Colorado law does not permit it to require Plaintiff to give consideration in exchange for payment of UIM benefits.
36. State Farm is aware that requiring Plaintiff to give it consideration in exchange for paying him UM benefits owed under the policy amounts to extortion.
37. Nevertheless, State Farm intends to require Plaintiff to release it from further liability in exchange for payment of the full amount of UIM benefits it owes her.
46. State Farm has manufactured a false “dispute” about benefits due to Plaintiff under her UIM coverage to avoid its obligation to pay her.Compl. [#7] ¶¶ 34-37, 46.
First, Plaintiff fails to acknowledge that the $3,000.10 difference between the settlement offer of $9,336.36 and the Fisher payment of $6,336.26 represents general noneconomic damages. Motion [#11] at 8. These damages, unlike economic damages as to a claimant's medical expenses, can be subjective as “there is no sum certain to which an insured is entitled for noneconomic damages.” Thus, the amount of such damages can be disputed without implicating the insurer for unreasonable conduct. See Nyborg v. State Farm Mut. Auto. Ins. Co., No. 20-CV-01918-RM-KLM, 2021 WL 1115936 at *2 (D. Colo. March 24, 2021).
Second, Plaintiff ignores precedential cases such as Fisher and McKinney which affirmed that evaluations and settlement offers do not constitute undisputed amounts owed to the insured. See Fisher I, 419 P.3d at 988; McKinney, 2021 WL 4472921, at *6. Thus, proffering a settlement offer to Plaintiff based on State Farm's claim evaluation did not guarantee Plaintiff that sum, nor did State Farm's failure to advance the sum Plaintiff contends she is entitled to establish unreasonable conduct by State Farm. See Nyborg, 2021 WL 1115936, at *2 (“Colorado law . . . prohibits the conclusion that an insurer's initial settlement offer represents an admission that the amount of the offer is the amount of benefits owed. . . . Thus, contrary to Plaintiffs' position, covered benefits for noneconomic damages are not rendered ‘undisputed' by an insurer's settlement offer” and plaintiffs' position to the contrary “would discourage settlement”). Ultimately, unreasonable conduct cannot be established by a mere disagreement of value between the insured and insurer. If that were the standard for bad faith, “essentially every insurance dispute would proceed to trial on such a claim, as disputes between the insurer and insured over the proper valuation of the loss are routine.” Green Earth Wellness Ctr., LLC v. Atain Specialty Ins. Co., 163 F.Supp.3d 821, 836 (D. Colo. 2016).
Lastly, Plaintiff contends that State Farm acted unreasonably by conditioning its settlement offer on a release of further liability. Complaint [#7] at 37. Plaintiff avers that predicating the offer in this way amounts to extortion as it demands further consideration in exchange for UIM benefits. Id. at 35-36. The Court disagrees. Under Colorado law, it would be unreasonable to condition a payment on a release of further liability when the payment is for undisputed benefits. See McKinney, 2021 WL 4556081, at *5-6. Here, the Court agrees with State Farm that the settlement offer it made to Plaintiff represented UIM benefits for disputed, noneconomic damages. Such a settlement offer was valid as set forth previously. The Court further agrees that upon issuing the payment for the undisputed damages, State Farm fulfilled its duty or obligation under Fisher to issue UIM benefits to Plaintiff. See McKinney, 2021 WL 4556081, at *8; Fisher I, 419 P.3d t 988.
The Complaint contains a smattering of other boilerplate allegations of bad faith by State Farm, but ultimately fails to provide the facts necessary for the claims to state a claim for relief for bad faith conduct. For example, while Plaintiff alleges that State Farm delayed or denied payment of benefits, this is a conclusory statement without any explanation which is insufficient to establish unreasonable conduct. 5555 Boatworks Drive, LLC v. Owners Ins. Co., No. 16-cv-02749-CMA-MJW, 2017 WL 6361398, at *5 (D. Colo. 2017).
Plaintiff argues in her Response [#13], however, that the issue is not a mere disagreement about the total value of Plaintiff's claim. According to Plaintiff, there is no dispute that her economic damages plus her non-economic damages total more than the underlying liability coverage, i.e., that Plaintiff is owed UIM benefits and has suffered noneconomic damages, and State Farm refused to compensate her for any noneconomic damages. Id. at 1, 5. However, State Farm clarified that the Plaintiff's noneconomic damages were disputed and as such were not included in the Fisher payment. Motion [#11] at 7. These disputed, noneconomic damages were, instead, included in the settlement evaluation and in the compromise settlement offer. Id. at 8. In the claim evaluation, State Farm listed Plaintiff's general noneconomic damages and damages for physical impairment and disfigurement as $3,000.00 of the $34,336.26 claim total. Id. The compromise settlement offer State Farm made to Plaintiff totaled $9,336.36, the delta between the claim total and the bodily injury liability limits of the motorist's insurance policy. Id. The offer represented State Farm's evaluation of the entire claim, both disputed noneconomic damages and undisputed economic damages. See Id. The compromise settlement offer was made to Plaintiff to resolve the full value of Plaintiff's UIM claim which remained in dispute. Id. at 12. The Court finds that State Farm's compromise settlement offer represented an effort to compensate Plaintiff for disputed non-economic damages, refuting Plaintiff's claim that State Farm refused to compensate her for non-economic damages.
Based on the foregoing, the Court finds that Plaintiff fails to state plausible claims for common law bad faith and statutory unreasonable delay or denial. Accordingly, the Court recommends that the Motion [#11] be granted. Because The Court cannot determine at this juncture that an amendment to the complaint would be futile, it is further recommended. that Plaintiff's second and third claims be dismissed without prejudice. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006) (holding that “[a] dismissal with prejudice is appropriate [only] where a complaint fails to state a claim under Rule 12(b)(6) and granting leave to amend would be futile”).
IV. Conclusion
In conclusion, IT IS HEREBY RECOMMENDED that the Motion [#11] be GRANTED, and that Plaintiff's second and third claims be DISMISSED WITHOUT PREJUDICE.
IT IS HEREBY ORDERED that pursuant to Fed.R.Civ.P. 72, the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this Recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).