Opinion
Civil Action No. 16-cv-01202-PAB-KLM
2020-03-30
Derek THOMPSON, individually and as Personal Representative of the Estate of Cynthia Thompson, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant.
Andrew Stephen Petroski, John Keith Killian, Killian Davis Richter & Mayle, P.C., Grand Junction, CO, for Plaintiff. Heather A. Salg, Messner Reeves LLP, Greenwood Village, CO, for Defendant.
Andrew Stephen Petroski, John Keith Killian, Killian Davis Richter & Mayle, P.C., Grand Junction, CO, for Plaintiff.
Heather A. Salg, Messner Reeves LLP, Greenwood Village, CO, for Defendant.
ORDER
PHILIP A. BRIMMER, Chief United States District Judge
This matter is before the Court on the Opinion [Docket No. 129] and Mandate [Docket No. 130] issued by the United States Court of Appeals for the Tenth Circuit in this case and Defendant State Farm's Motion for Summary Judgment [Docket No. 58]. The Court has jurisdiction pursuant to 28 U.S.C. § 1332.
I. BACKGROUND
The background facts have been set forth elsewhere and will not be restated here except as relevant to resolving the present matter. See Docket No. 117 at 1-3; see also Thompson v. State Farm Mut. Auto. Ins. Co. , 789 F. App'x 90, 91 (10th Cir. 2019) (unpublished). Plaintiff Derek Thompson sued defendant State Farm alleging that defendant had wrongfully denied payment of underinsured motorist ("UIM") benefits after the death of plaintiff's mother, Cynthia Thompson. Docket No. 4 at 4-6, ¶¶ 46-53. Plaintiff asserts Colorado state law claims for (1) declaratory judgment; (2) breach of contract; (3) common law bad faith breach of an insurance contract; and (4) unreasonable denial of UIM benefits under Colo. Rev. Stat. §§ 10-3-1115 and 10-3-1116. Id. at 6-12.
Defendant moved for summary judgment on all claims on June 8, 2017. Docket No. 58. On June 29, 2017, plaintiff filed a preliminary response to defendant's motion as well as a motion for relief under Fed. R. Civ. P. 56(d), requesting that the Court defer ruling on the motion for summary judgment to allow plaintiff additional time to conduct discovery. Docket Nos. 59 and 60. After the close of expert discovery on January 15, 2018, the Court ordered the parties to file supplemental briefs regarding the motion for summary judgment. Docket No. 99; see also Docket No. 109 and 110 (the supplemental briefing).
On September 20, 2018, the Court ruled that defendant was entitled to summary judgment on all claims on the basis that no reasonable jury could find that Ms. Thompson's death was proximately caused by the subject motor vehicle accident. Docket No. 117 at 18. On October 18, 2018, plaintiff filed a Notice of Appeal [Docket No. 120]. The Tenth Circuit issued its Order and Judgment on November 29, 2019. Docket No. 129. The Tenth Circuit found a genuine dispute of material fact as to whether the automobile accident proximately caused Ms. Thompson's death. Id. at 9. The court vacated the judgment in favor of defendant and remanded the case for further proceedings. Id. at 10; Thompson , 789 F. App'x at 94. On January 7, 2020, the Court reinstated defendant's motion for summary judgment in order to rule on the arguments not reached in its summary judgment order. Docket No. 131 at 1.
II. LEGAL STANDARD
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when the "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A disputed fact is "material" if under the relevant substantive law it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc. , 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes over material facts can create a genuine issue for trial and preclude summary judgment. Faustin v. City & Cty. of Denver , 423 F.3d 1192, 1198 (10th Cir. 2005). An issue is "genuine" if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee , 119 F.3d 837, 839 (10th Cir. 1997).
Where "the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden at the summary judgment stage by identifying ‘a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.’ " Bausman v. Interstate Brands Corp. , 252 F.3d 1111, 1115 (10th Cir. 2001) (quoting Adler v. Wal-Mart Stores, Inc. , 144 F.3d 664, 671 (10th Cir. 1998) ). "Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter." Concrete Works of Colo., Inc. v. City & Cty. of Denver , 36 F.3d 1513, 1518 (10th Cir. 1994). The nonmoving party may not rest solely on the allegations in the pleadings, but instead must designate "specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett , 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). "To avoid summary judgment, the nonmovant must establish, at a minimum, an inference of the presence of each element essential to the case." Bausman , 252 F.3d at 1115. When reviewing a motion for summary judgment, a court must view the evidence in the light most favorable to the non-moving party. Id.
III. ANALYSIS
In the Court's order granting summary judgment in favor of defendant, the Court determined that no reasonable jury could find that Ms. Thompson's death was proximately caused by the subject motor vehicle accident because her use of Diazepam and non-prescribed Fentanyl to treat the injuries she sustained in the accident was not reasonably foreseeable. Docket No. 117 at 8, 11-14. The Court also concluded that plaintiff had not demonstrated a genuine issue of fact that he was entitled to UIM benefits. Id. at 17. As a result, the Court determined that defendant was entitled to summary judgment on plaintiff's claims for declaratory judgment and breach of contract. Id. And, for this same reason, the Court found that plaintiff's claims for bad faith breach of an insurance contract and unreasonable delay or denial of benefits failed as a matter of law. Id. The Court did not consider defendant's alternative summary judgment arguments: (1) that summary judgment is appropriate on plaintiff's claims for bad faith and unreasonable delay or denial because plaintiff failed to establish that defendant's conduct was unreasonable and (2) that plaintiff's unreasonable delay or denial claim is barred by the statute of limitations. Id. ; see also Docket No. 58 at 9-20.
The Tenth Circuit has determined that a genuine issue of material fact exists as to whether Ms. Thompson's death was proximately caused by the automobile accident and, accordingly, whether plaintiff is entitled to receive UIM benefits from defendant. Thompson , 789 F. App'x at 94. As a result, plaintiff's declaratory judgment and breach of contract claims survive summary judgment. See Docket No. 58 at 7-9 (defendant raising only proximate cause argument to challenge plaintiff's first two claims).
The Court turns to the arguments it did not address in its original order.
A. The Reasonableness of Defendant's Conduct
To succeed on a common law claim of bad faith breach of an insurance contract, "a plaintiff must show that the insurer acted both unreasonably and with knowledge of or reckless disregard of its unreasonableness." Hyden v. Farmers Ins. Exch. , 20 P.3d 1222, 1226 (Colo. App. 2000). Colorado courts have held that it is reasonable for an insurer to challenge claims that are "fairly debatable." Zolman v. Pinnacol Assurance , 261 P.3d 490, 496 (Colo. App. 2011). Thus, under common law, finding that an insurer's justification for denying or delaying payment of a claim is "fairly debatable" typically weighs against finding that an insurer acted unreasonably. Sanderson v. Am. Family Mut. Ins. Co. , 251 P.3d 1213, 1218 (Colo. App. 2010) (citation omitted).
Colorado law also provides for a statutory law bad faith claim, whereby an insurer may not "unreasonably delay or deny payment of a claim for benefits owed to or on behalf of any first-party claimant." Colo. Rev. Stat. § 10-3-1115(1)(a). An insurer's delay is unreasonable "if the insurer delayed or denied authorizing payment of a covered benefit without a reasonable basis for that action." Colo. Rev. Stat. § 10-3-1115(2). The determination of whether an insurer has breached its duties to the insured is one of reasonableness under the circumstances. Estate of Morris v. COPIC Ins. Co. , 192 P.3d 519, 523 (Colo. App. 2008). In other words, the question is whether a reasonable insurer under similar circumstances would have denied or delayed payment of the claim. Id. The reasonableness of an insurer's conduct must be determined objectively, based on proof of industry standards. Travelers Ins. Co. v. Savio , 706 P.2d 1258, 1274 (Colo. 1985). Whether an insurer's conduct was reasonable under the circumstances is ordinarily a question of fact for the jury when conflicting evidence exists. Zolman , 261 P.3d at 497. However, in appropriate circumstances, as when there are no genuine disputes of material facts, reasonableness may be decided as a matter of law. COPIC , 192 P.3d at 524.
The "burden of proving th[e] statutory claim is less onerous than that required to prove a claim under the common law for breach of the duty of good faith and fair dealing." Kisselman v. Am. Family Mut. Ins. Co. , 292 P.3d 964, 975 (Colo. App. 2011). "While first-party bad faith principles require a plaintiff to establish that the insurer knew or recklessly disregarded the fact that its conduct was unreasonable, ... the statutory claim requires only that a first-party claim be denied without a reasonable basis." Vaccaro v. Am. Family Ins. Grp. , 275 P.3d 750, 756 (Colo. App. 2012) (citations omitted).
Defendant argues that it is entitled to summary judgment on both plaintiff's common law bad faith claim and statutory bad faith claim because the cause of Ms. Thompson's death was "reasonably contested," and therefore its decision to challenge plaintiff's UIM claim was fairly debatable. Docket No. 58 at 11, 16. Plaintiff disagrees, arguing that there are facts in the record that preclude summary judgment in favor of defendant. Docket No. 59 at 16. According to plaintiff, a reasonable jury could conclude (1) that defendant failed to complete a reasonable investigation into plaintiff's claim and (2) that defendant failed to provide a reasonable explanation for the denial of the claim. Id. Specifically, plaintiff contends that there are facts in the record that, when viewed in the light most favorable to plaintiff, demonstrate that (1) defendant's investigation was not reasonable because, despite the fact that the death certificate stated that Ms. Thompson's use of pain medication contributed to her death, defendant did not retain a medical expert to review Ms. Thompson's death certificate and did not interview the coroner or autopsy physician; (2) defendant's investigation was not conducted in good faith because defendant "was requesting information from [plaintiff] that it already possessed as a basis for not paying him benefits"; and (3) defendant's explanation of its denial was not reasonable because it erroneously relied upon a "direct result" legal standard, that does not exist under Colorado law, to justify its denial. Id. at 16-18.
The reasonableness of an investigation is based on proof of industry standards. Savio , 706 P.2d at 1274. Plaintiff states that "Colorado's Unfair Competition - Deceptive Trade Practices Act [ Colo. Rev. Stat. § 10-3-1104 ] lists numerous obligations for insurers in their handling of claims" and prohibits an insurer from "[r]efusing to pay claims without conducting a reasonable investigation based upon all available information" and "[f]ailing to promptly provide a reasonable explanation of the basis in the insurance policy in relation to the facts or applicable law for denial of a claim or for the offer of a compromise settlement." Docket No. 59 at 15. The Colorado Supreme Court has held that the Act is "valid, but not conclusive, evidence of industry standards." Am. Family Mut. Ins. Co. v. Allen , 102 P.3d 333, 344 (Colo. 2004) ; see also Peden v. State Farm Mut. Auto. Ins. Co. , 841 F.3d 887, 890 (10th Cir. 2016) (stating that insurance industry standards "may be established through expert opinions or state law").
"[A] reasonable investigation is one that is based upon ‘all available information.’ " Allen , 102 P.3d 333, 345 (Colo. 2004). The duty to conduct a reasonable investigation includes "a duty to promptly and effectively communicate with anyone [the insurer is] reasonably aware ha[s] ... information pertaining to the handling of [the] plaintiff[’s] claim." Dunn v. Am. Family Ins. , 251 P.3d 1232, 1238 (Colo. App. 2010). "Implicit in the duty to investigate is the requirement that the investigation be adequate and fair. Adequacy and fairness means that the insurer has a duty to diligently search for evidence which supports [the] insured's claim and not merely seek evidence upholding its own interests." 14 Steven Plitt et al., Couch on Insurance § 207:25 (3d ed. 2019); see also Brodeur v. Am. Home Assurance Co. , 169 P.3d 139, 147 n.7 (Colo. 2007) ("[B]ad faith can occur in the unreasonable refusal to investigate a claim or to gather facts."). The question before the Court is whether a reasonable fact finder could find, based on these standards, that defendant breached its duty to conduct a reasonable investigation.
In his supplemental response to defendant's motion for summary judgment [Docket No. 109], plaintiff provides additional facts that he argues demonstrate a genuine issue of material fact concerning the reasonableness of defendant's conduct. For example, it is undisputed that defendant's claims handler "directed that an independent medical evaluation [ ("IME") ] be requested ... ‘to obtain an opinion on the cause of [Ms. Thompson's] death.’ " Docket No. 109 at 2, ¶ 5 (quoting Docket No. 109-2 at 20). Defendant does not dispute that it never obtained this IME. Id. , ¶ 8. However, defendant asserts that it "anticipated a possible IME only after obtaining medical records and prescriptions" from plaintiff and argues that, because plaintiff did not disclose a prescription for the Fentanyl patch, "no IME was needed." Docket No. 110 at 1-2, ¶¶ 5, 8. Defendant did not have in-house medical personnel review Ms. Thompson's records. Docket No. 109 at 2, ¶ 8. Further, while defendant made two attempts to call the coroner from August 11, 2014 to December 22, 2015, it did not attempt to send correspondence to the coroner, which plaintiff asserts was unreasonable. Id. at 3-4, ¶¶ 15-16. Plaintiff argues that, based on this evidence, there is a genuine dispute of material fact regarding whether defendant's investigation was unreasonable. Id. at 4-5. The Court finds that, viewing these facts in the light most favorable to plaintiff, a genuine issue of material fact exists concerning whether defendant conducted a reasonable investigation. "Whether an insurer's failure to investigate a claim properly constitutes bad faith ... depends upon the circumstances of the case." 14 Couch on Insurance § 206:15. Here, a reasonable jury could conclude that defendant's failure to obtain additional relevant information, despite its claims adjuster's directive to do so, did not constitute an adequate and fair investigation based on all available information. See Adams Craig Acquisitions LLC v. Defendant Atain Specialty Ins. Co. , 2019 WL 4193501, at *5 (D. Ariz. Sept. 4, 2019) (finding that insurer's decision to not retain an expert to evaluate property damage, despite recommendation in the inspection report to do so, created a genuine dispute concerning the reasonableness of the insurer's conduct); Sterling v. Provident Life & Accident Ins. Co. , 619 F. Supp. 2d 1242, 1253 (M.D. Fla. 2009) (finding a genuine issue of material fact concerning whether the defendant conducted a reasonable investigation where the defendant had failed to refer the plaintiff for an IME); Valdez v. Allstate Ins. Co. , 2008 WL 3916017, at *5 (Ariz. Ct. App. Jan. 29, 2008) (finding that a jury should determine whether the defendant's investigation was reasonable when it failed to obtain IME on plaintiff's psychological condition despite plaintiff's attorney's suggestion to do so).
As set forth above, insurance industry standards may be established by expert testimony. Peden , 841 F.3d at 890. In defending its investigation, defendant points to its expert's opinion that, while an insurer "may obtain medical opinions either by a paper review or IME, ... they are not required to and it is not industry standard to do so." Docket No. 110 at 2, ¶ 10 (quoting Docket No. 110-2 at 7 (expert report of John Craver)). But plaintiff's expert, Elliott Flood, opines that "[i]t is customary, if medical reports that favor payment are questioned by an insurer, for the insurer to obtain a second opinion from a doctor." Docket No. 109-7 at 19. "[C]ompeting expert opinions present the classic battle of the experts and it is up to a jury to evaluate what weight and credibility each expert opinion deserves." OraLabs, Inc. v. Kind Grp. LLC , No. 13-cv-00170-PAB-KLM, 2015 WL 4538444, at *5 (D. Colo. July 28, 2015) (quoting Phillips v. Cohen , 400 F.3d 388, 399 (6th Cir. 2005) (alteration marks in original)). The Court finds that plaintiff has demonstrated that a genuine issue of material fact exists concerning defendant's investigation to preclude summary judgment in favor of defendant.
Plaintiff additionally argues that defendant's explanation for its denial of benefits was unreasonable because it used a "direct result" standard that is unsupported by law. Docket No. 59 at 18. The Court assumes that this "direct result" standard refers to plaintiff's allegation that defendant "denied the claim in reliance on its repeated assertion that Ms. Thompson's death was not the ‘direct result’ of the motor vehicle collision," id. at 17, i.e., the belief that Ms. Thompson's death was caused only by the prescription medication overdose. While plaintiff has not submitted evidence setting out industry standards regarding what constitutes a "reasonable explanation" beyond citing Colo. Rev. Stat. § 10-3-1104(1)(h)(XIV) (prohibiting an insurer from "[f]ailing to promptly provide a reasonable explanation of the basis in the insurance policy ... for denial of a claim"), see Docket No. 59 at 15; see also generally id. ; see also Docket No. 109, plaintiff submits that there is no legal basis under Colorado law to deny coverage based on absence of a "direct result." Docket No. 59 at 18. A bad faith claim can be based on an insurer's denial of coverage by an objectively incorrect legal predicate. See, e.g., Geiger v. Am. Standard Ins. Co. of Wisc. , 192 P.3d 480, 483-84 (Colo. App. 2008) (reversing summary judgment in favor of insurer when its grounds for denial of coverage had no reasonable basis in the law); see also Sanderson , 251 P.3d at 1217-18 (stating that an insurer may not defend a claim that is not fairly debatable, i.e. a claim in which "reasonable minds could [not] disagree as to the coverage-determining facts or law"); Crews v. Shelter Ins. Co. , 393 F. Supp. 2d 1170, 1178-79 (W.D. Okla. 2005) (denying summary judgment on bad faith claim where factual issues called into question whether insurer's denial of coverage was legally permissible under Oklahoma law).
Defendant, however, argues that its coverage decision was reasonable because plaintiff's claim for benefits was fairly debatable. Docket No. 58 at 14-15. Guided by the Tenth Circuit's decision on appeal, the Court finds that plaintiff's claim was fairly debatable. The Tenth Circuit explained that "reasonable minds could disagree as to whether Ms. Thompson's overdose on pain medication was foreseeable" and therefore caused by the motor vehicle accident. Thompson , 789 F. App'x at 93. It is undisputed that defendant delayed and denied coverage on the basis that it was unable to determine whether Ms. Thompson's death resulted from the motor vehicle accident – i.e., whether plaintiff was entitled to UIM benefits. Docket No. 58 at 4, ¶¶ 20, 24; at 5, ¶ 25. Although the Tenth Circuit ultimately determined that a genuine issue of fact exists regarding whether defendant's decision was correct, this does not call into question whether the issue was fairly debatable. See Sanderson , 251 P.3d at 1217 ("[W]hen an insurer maintains a mistaken belief that a claim is not compensable, it may still be within the scope of permissible challenge, even if the insurer's belief turns out to be incorrect."). The Court finds that defendant's challenge to plaintiff's claim was fairly debatable.
However, fair debatability is not "necessarily sufficient to defeat a bad faith claim as a matter of law." Id. "[I]n defending a fairly debatable claim, an insurer must exercise reasonable care and good faith." Id. at 1218 (quoting Zilisch v. State Farm Mut. Auto. Ins. Co. , 196 Ariz. 234, 995 P.2d 276, 279 (2000) ). "What constitutes reasonableness under the circumstances is ordinarily a question of fact for the jury." Vaccaro , 275 P.3d at 759. "However, in appropriate circumstances, as when there are no genuine issues of material fact, reasonableness may be decided as a matter of law." Id. While a finding that an insurer's justification for delay or denial was fairly debatable "weighs against a finding that the insurer acted unreasonably, ... ‘fair debatability is not a threshold inquiry that is outcome determinative as a matter of law.’ " Id. at 759-60 (quoting Sanderson , 251 P.3d at 1218 ). While the Court has concluded that plaintiff's claim was fairly debatable, which weighs in favor of finding that its conduct was reasonable, this does not entitle defendant to summary judgment, particularly where this Court and the Tenth Circuit has determined that genuine issues of material fact exists. Thompson , 789 F. App'x at 94. Where, as here, genuine issues of material fact exist as to the basis for defendant's denial of coverage, reasonableness under the circumstances should be determined by the jury. See Vaccaro , 275 P.3d at 759 ; see also Zolman , 261 P.3d at 497. And, because the Court finds that the jury must determine whether defendant's conduct was reasonable for the purposes of plaintiff's bad faith claim, it also finds that this same determination must be made with regards to plaintiff's unreasonable delay or denial claim. Thus, defendant is not entitled to summary judgment on plaintiff's bad faith or unreasonable delay or denial claims on the basis that it acted reasonably.
To succeed on his common law bad faith claim, plaintiff must also prove that defendant "knew or recklessly disregarded the fact that its conduct was unreasonable." Vaccaro , 275 P.3d at 756. However, defendant's motion for summary judgment addresses only the first element. See Docket No. 58 at 9-16 (arguing that its conduct was reasonable but failing to make arguments concerning knowledge or recklessness element). Thus, the Court will not address the second prong. See Peden , 841 F.3d at 890 n.3 (declining to reach second prong of bad faith claim because insurer "[did] not develop an argument on this additional element of the common-law claim," instead "devot[ing] only one sentence to this argument.").
B. The Statute of Limitations
Defendant argues that plaintiff's unreasonable delay or denial claim is barred by the statute of limitations. Docket No. 58 at 17. Colorado law provides that "[a]ll actions for any penalty or forfeiture of any penal statutes ... shall be commenced within one year after the cause of action accrues." Colo. Rev. Stat. § 13-80-103(1)(d). Defendant argues that, because the statutes upon which plaintiff's claim is premised, Colo. Rev. Stat. § 10-3-1115, "imposes a civil penalty in excess of any contract damages claimed by an insured, the statute is penal in nature for purposes of applying the one[-]year period of limitations." Docket No. 58 at 19. Defendant contends that "[m]ultiple courts in Colorado have addressed this same issue and have concluded that [§] 10-3-1115 is subject to a one[-]year statute of limitations." Id. Plaintiff contends that there is a material question of fact regarding the accrual date of plaintiff's unreasonable delay or denial claim in that a reasonable jury could conclude that the claim accrued on October 26, 2015, when defendant – for the first time – informed plaintiff that it was denying his claim as opposed to merely delaying payment. Docket No. 59 at 19. In its supplemental briefing, plaintiff requests that the Court withhold ruling on the issue, as the question of whether a claim under § 10-3-1115 was subject to a one- or two-year statute of limitations had been certified to the Colorado Supreme Court by another court in this district. Docket No. 109 at 5; see also Rooftop Restoration, Inc. v. Am. Family Mutual Ins. Co. , No. 15-cv-2560-WJM-MJW, 2017 WL 514060 (D. Colo. Feb. 8, 2017).
"A person engaged in the business of insurance shall not unreasonably delay or deny payment of a claim for benefits owed to or on behalf of any first-party claimant." Colo. Rev. Stat. § 10-3-1115(1)(a). "A first-party claimant as defined in section 10-3-1115 whose claim for payment of benefits has been unreasonably delayed or denied may bring an action in a district court to recover reasonable attorney fees and court costs and two times the covered benefit." Colo. Rev. Stat. § 10-3-1116(1).
After the parties completed their summary judgment briefing, the Colorado Supreme Court determined that "the one-year statute of limitations found in section 13-80-103(1)(d) ... does not apply to an action brought under section 10-3-1116(1) because section 10-3-1116(1) is not an ‘action[ ] for any penalty or forfeiture of any penal statute[ ]’ within the meaning of section 13-80-103(1)(d).’ " Rooftop Restoration, Inc. v. Am. Family Mut. Ins. Co. , 418 P.3d 1173, 1175 (Colo. 2018) (quoting Colo. Rev. Stat. § 13-80-103(1)(d) ) (alterations in original). As a result, the Court rejects the defendant's argument that plaintiff's claim for unreasonable delay or denial was subject to a one-year statute of limitations. "A two-year statute of limitations applies to claims brought under § 10-3-1116." Steeplechase II Condo. Assoc., Inc. v. Travelers Indem. Co. , No. 17-cv-01273-PAB-NRN, 2018 WL 6571392, at *4 (D. Colo. Dec. 13, 2018) (citing Rooftop Restoration , 418 P.3d at 1175 ). Taking defendant's argument that plaintiff's claim "accrued on or about June 18, 2014", see Docket No. 58 at 19, at face value, plaintiff timely filed this lawsuit within the two-year statute of limitations on February 4, 2016. Docket No. 58 at 5, ¶ 26.
IV. CONCLUSION
For these reasons, it is
ORDERED that the Court's Order on defendant's motion for summary judgment [Docket No. 117] is VACATED . It is further
ORDERED that Defendant State Farm's Motion for Summary Judgment [Docket No. 58] is DENIED .