Tucker v. Government Employees Insurance Co., 695 F. App'x 389

In 2004 GEICO issued an auto policy naming Bernadette Marquez and David Tucker as insureds; Marquez was the primary contact and managed the policy.
The policy originally included underinsured motorist (UIM) coverage; Marquez completed forms in 2005 and 2009 requesting exclusion of UIM coverage for the policy.
In 2011 Tucker was injured by an underinsured driver and submitted a UIM claim; GEICO denied the claim, asserting Marquez had rejected UIM coverage on Tucker’s behalf.
Tucker sued GEICO for breach of contract and related claims, arguing Colo. Rev. Stat. § 10-4-609(1)(a) requires each named insured to reject UIM in writing and that Marquez’s rejection could not bind him.
The district court granted summary judgment for GEICO, finding common-law agency principles allow one named insured’s agent to reject UIM for another and that undisputed facts showed Marquez had apparent authority.
The Tenth Circuit affirmed after the Colorado Supreme Court’s decision in the related Johnson matter clarified that Colorado law permits apparent or implied agency to waive UM/UIM coverage.

Issue	Tucker's Argument	GEICO's Argument	Held
Whether § 10-4-609(1)(a) bars application of common-law agency so that each named insured must personally sign a written rejection of UIM	§ 10-4-609(1)(a) requires each named insured to expressly reject UIM in writing; one insured cannot waive another's coverage absent that writing	The statute allows a named insured (or that insured’s agent) to reject UIM on behalf of other named insureds; agency principles apply	Colorado Supreme Court held the common law governs and the statute does not preclude apparent or implied agency; Tenth Circuit affirmed under that rule
Whether Marquez’s rejection bound Tucker under agency principles	Marquez lacked authority to reject UIM for Tucker (Tucker disputed agency)	Marquez acted with apparent authority as primary contact and thus could reject UIM for Tucker	District court found undisputed facts established Marquez had apparent authority; Tucker did not properly challenge that finding on appeal, so the court affirmed

Fid. Nat’l Title Ins. Co. v. Woody Creek Ventures, LLC, 830 F.3d 1209 (10th Cir. 2016) (standard of review for summary judgment)
Jones v. United Parcel Serv., Inc., 674 F.3d 1187 (10th Cir. 2012) (choice-of-law principles in diversity actions)
United States v. Kennedy, 225 F.3d 1187 (10th Cir. 2000) (appellate court will not consider materials not presented to the district court)
Zia Shadows, LLC v. City of Las Cruces, 829 F.3d 1232 (10th Cir. 2016) (arguments not raised in opening brief are waived)
United States v. Fisher, 805 F.3d 982 (10th Cir. 2015) (issues mentioned but not adequately briefed are waived)