Alvarado v. Allstate Fire and Casualty Insurance CompanyAlvarado v. Allstate Fire and Casualty Insurance Company
This matter is before the Court on four Motions:
- Defendant Allstate’s Motion to Exclude Plaintiffs’ Expert Mr. John Kezer (the “Motion to Exclude Kezer”), [Doc. 57];
- Defendant’s Motion for Leave to Amend Answer to Add Affirmative Defense (the “Motion to Amend Answer”), [Doc. 58];
- Allstate Insurance Company’s Motion for Summary Judgment (the “Motion for Summary Judgment”), [Doc. 62]; and
- Plaintiffs’ Motion to Exclude Defendants’ Expert Mr. Franklin Patterson (the “Motion to Exclude Patterson”), [Doc. 63].
The Court has reviewed the Motions and concludes that oral argument would not materially assist in their resolution. For the reasons set forth below, the Motion to Amend Answer is DENIED; the Motion for Summary Judgment is GRANTED in part and DENIED in part; the Motion to Exclude Kezer is GRANTED in part and DENIED in part; and the Motion to Exclude Patterson is DENIED.
Plaintiffs Lois Alvarado and Milo Alvarado (together, “Plaintiffs” or “the Alvarados”) sued their insurer, Allstate Fire and Casualty Insurance Company (“Defendant” or “Allstate”), after Allstate denied their claim for vehicle damages arising out of an automobile collision involving their daughter, Brianna Alvarado. See [Doc. 5]. Plaintiffs allege that Allstate erroneously denied coverage after wrongly concluding that Brianna1 was not covered under the Alvarados’ insurance policy. [Id. at ¶¶ 35–36, 41]. Plaintiffs assert one breach of contract claim, one claim of unreasonable delay or denial of insurance benefits under
Allstate filed its Answer on May 15, 2024, denying liability. [Doc. 11]. The case proceeded through discovery, and discovery closed on October 31, 2025. [Doc. 56]. Allstate now moves to amend its Answer to assert a new affirmative defense, [Doc. 58], and for summary judgment in its favor on all of Plaintiffs’ claims, [Doc. 62]. Both sides have also moved to exclude a competing expert witness. [Doc. 57; Doc. 63]. The Court addresses each Motion below.
I. Motion to Amend Answer
A. Legal Standard
When a party files a motion to amend after the expiration of the deadline to amend pleadings,2 the Court considers the request under Rules 15 and 16 of the Federal Rules of Civil Procedure. First, the Court determines whether the movant has demonstrated
Under
Allstate moves to amend its Answer to raise, for the first time, a statute-of-limitations affirmative defense to Plaintiffs’ bad faith claims. [Doc. 58]. “A bad faith breach of insurance contract claim is a tort claim governed by the two-year statute of limitations in [
Defendant argues that good cause exists to amend the Scheduling Order because “significant information relevant to a [statute-of-limitations] defense was not discovered until the Plaintiffs were deposed approximately 30 days ago.” [Doc. 58 at 3]. The Motion to Amend Answer centers around handwritten notes taken by Ms. Alvarado contemporaneously with conversations with Allstate representatives. See [id. at 5–7]; see also [Doc. 58-1 (the notes)].3 The notes state, in pertinent part, “Called David Murray on Brianna’s Permit[.] [S]he got it on Apr. 16, 2019[.] Jeff didn’t get to talk to David. But Jeff made it clear that Brianna still was not [covered] and Darian said you can’t [file] a complaint against them.” [Doc. 58-1 at 1].
Plaintiffs oppose Defendant’s Motion to Amend Answer. They argue that the handwritten notes were disclosed in their initial disclosures, so Defendant has had access to them since June 2024. [Doc. 61 at 4]; see also [Doc. 61-1 at 4 (Plaintiffs’ initial disclosures)]. They also point out that Allstate’s own claim notes reflect that Allstate informed Ms. Alvarado of its position that there was no coverage in June 2021. [Doc. 61 at 4]; see also [Doc. 61-2 at 2 (“advised . . . at this time the claim was denied for the unlisted driver”)]. Plaintiffs argue that the deposition testimony revealed no new information that excuses Defendant’s 16-month delay in moving to amend its Answer. [Doc. 61 at 4–5]. In its reply brief, Allstate asserts that “what was not available in the
The Court agrees with Plaintiffs that Defendant has not demonstrated good cause to amend the Scheduling Order to extend the deadline for amendment of pleadings. The notes, identified as “Plaintiff’s [sic] Handwritten Notes,” were disclosed to Defendant on June 28, 2024. [Doc. 61-1 at 4]. At the very least, then, Defendant was on notice in June 2024 that one of the two Plaintiffs had written those notes. That Ms. Alvarado confirmed at her deposition that she, and not her husband, authored the notes is immaterial to the analysis of when Plaintiffs knew or should have known that coverage was potentially being denied, given that the notes were always attributed to a “Plaintiff.”
The notes clearly reflect that, in her communications with Allstate, Ms. Alvarado was told that “Brianna still was not [covered].” [Doc. 58-1 at 1]. And Allstate’s claim notes, which were presumably within its possession before this case was even filed, also reflect that Ms. Alvarado was informed in June 2021 that there was no coverage, as an Allstate representative noted that they had “advised” Ms. Alvarado “at this time the claim was denied for the unlisted driver,” i.e., Brianna. [Doc. 61-2 at 2]. If Allstate takes the position that Plaintiffs’ bad faith claims accrued when Ms. Alvarado was told there was no coverage during her communications with Allstate,4 then Allstate has had the information
II. Motion for Summary Judgment
A. Legal Standard
Summary judgment is appropriate “if 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.”
When considering the evidence in the record, the Court cannot and does not weigh the evidence or determine the credibility of witnesses. See id. at 249; Fogarty v. Gallegos, 523 F.3d 1147, 1165 (10th Cir. 2008). At all times, the Court views the record in the light most favorable to the nonmoving party. Banner Bank v. First Am. Title Ins. Co., 916 F.3d 1323, 1326 (10th Cir. 2019).
B. Undisputed Material Facts
The following undisputed material facts are drawn from the summary judgment record.
- At all relevant times, Plaintiffs owned a vehicle that was covered by an automobile insurance policy issued by Allstate (the “Policy”). [Doc. 62 at ¶¶ 1–2, 4; Doc. 69 at 3 ¶¶ 1–2, 4;6 Doc. 5 at ¶¶ 12, 14; Doc. 62-2 at 14:1–2].
On May 30, 2021, Brianna Alvarado, Plaintiffs’ daughter, was involved in a collision while driving the vehicle. [Doc. 62 at ¶¶ 1, 3; Doc. 69 at 3 ¶¶ 1, 3; Doc. 5 at ¶ 26; Doc. 11 at ¶ 1; Doc. 62-2 at 7:23–8:5].7 - Brianna obtained her driver’s license on June 1, 2020. [Doc. 62 at ¶ 20; Doc. 69 at 5 ¶ 20; Doc. 62-8 at 5].
- From the time she was a newborn and through the date of the collision, Brianna resided at Plaintiffs’ home. [Doc. 62 at ¶ 5; Doc. 69 at 3 ¶ 5; Doc. 62-2 at 8:11–24].
- Brianna was not listed as a driver in the Policy; only Ms. Alvarado and Mr. Alvarado were listed as drivers. [Doc. 62 at ¶ 8; Doc. 69 at 3 ¶ 8; Doc. 62-3 at 7].
- After the May 30 collision, Ms. Alvarado contacted Allstate and sought coverage for damage to the vehicle. [Doc. 62 at ¶ 9; Doc. 69 at 3 ¶ 9; Doc. 5 at ¶ 27; Doc. 11 at ¶ 1].
- In February 2022, Allstate denied Plaintiffs’ claim on the grounds that Brianna Alvarado was not listed in the Policy. [Doc. 62 at ¶ 14; Doc. 69 at 4 ¶ 14; Doc. 62-6 at 2].
C. Analysis
1. Breach of Contract Claim
Allstate argues that it is entitled to summary judgment on Plaintiffs’ breach of contract claim because (1) the claim is untimely based on Policy language requiring that causes of action concerning coverage be filed within one year of the date of the loss,
The Policy provides:
Action Against Us
No one may bring an action against us unless:
1. there is full compliance with all policy terms; and
2. the action is commenced within one year of the date the cause of action accrues. However, if an action is in any way related to the existence or amount of coverage, or the amount of loss for which coverage is sought, under a particular coverage that is shown on the Policy Declarations, such action must be commenced within the time period specified in the Action Against Us provision of that particular coverage. If an action is brought asserting claims relating to the existence or amount of coverage, or the amount of loss for which coverage is sought, under different coverages of this policy, the claims relating to each coverage shall be treated as if they were separate actions for the purpose of the time limit to commence action.
[Doc. 62-3 at 31 (underlined emphasis added)]. The Policy provides automobile coverage in “Part 3,” titled “Protection Against Loss To The Auto.” [Id. at 22]. The Policy “add[s]” the following provision to “Part 3—Protection Against Loss To The Auto”:
Action Against Us
No one may bring an action against us in any way related to the existence or amount of coverage, or the amount of loss for which coverage is sought, under Part 3—Protection Against Loss To The Auto, unless there is full compliance with all policy terms and such action is commenced within one year after the date of loss.
[Id. at 34 (underlined emphasis added)].
Allstate contends that, pursuant to this Policy language, Plaintiffs were required to file their breach of contract claim within one year of the date of the loss, or May 30, 2022. [Doc. 62 at 7–9]. Plaintiffs respond that the limitations provision should not be enforced because it is “in conflict with Colorado public policy as [it is] unreasonable.” [Doc. 69 at
Under Colorado law, “[i]nsurance provisions that violate public policy may be declared void and unenforceable.” Bailey v. Lincoln Gen. Ins. Co., 255 P.3d 1039, 1045 (Colo. 2011). Whether an insurance policy provision violates public policy is a legal question that must be answered “based on the particular facts of the case.” Del Valle v. Cal. Cas. Indem. Exch., 525 P.3d 689, 693 (Colo. App. 2022) (quotation omitted). In determining whether insurance provisions are void as against public policy, courts consider “whether they attempt to ‘dilute, condition, or limit statutorily mandated coverage.’” Bailey, 255 P.3d at 1045 (quoting Terranova v. State Farm Mut. Auto. Ins. Co., 800 P.2d 58, 60 (Colo. 1990)). Importantly, “given Colorado’s strong commitment to the freedom of contract, . . . ‘[t]he principle that contracts in contravention of public policy are not enforceable should be applied with caution and only in cases plainly within the reason on which the doctrine rests.’” Countryman v. Farmers Ins. Exch., 865 F. Supp. 2d 1108, 1111 (D. Colo. 2012) (first citing Shelter Mut. Ins. Co. v. Mid-Century Ins. Co., 246 P.3d 651, 662 (Colo. 2011), then quoting Bailey, 255 P.3d at 1045), aff’d, 545 F. App’x 762 (10th Cir. 2013).
Plaintiffs argue that the limitations provision is void as against public policy because (1) Allstate did not issue a denial letter until ten months after the collision, so requiring a lawsuit to be filed within one year of the loss “is unreasonable given the realities of filing and pursuing claims today,” [Doc. 69 at 7]; (2) the default statutory limitations period is “[three] times greater than that allowed by Defendant[] in its Policy,”
The Court is respectfully unpersuaded by Plaintiffs’ arguments. Although Colorado law sets a default three-year statute of limitations for contract actions, see
Nor is the Court persuaded that the Policy provision conflicts with the Colorado General Assembly’s intent, as framed by Plaintiffs, to “promote the public welfare by regulating insurance to the end that insurance services be actuated by good faith and keep, observe and practice the principles of law and equity in all matters,” see [Doc. 69 at 8], or that it contravenes the “public policy of . . . favor[ing] access to the courts and timely resolution of claims,” as Plaintiffs suggest, [id.]. A shortening of the period in which an insured may sue her insurer for breach of contract does not inherently undermine the requirement that insurance providers act in good faith when dealing with their insureds.
While the Policy’s limitations provision necessarily shortens the window in which an insured may file a lawsuit, the same is true for all contractual provisions that shorten the default limitations period. If this were enough to declare the provision void as against public policy, then these contractual provisions would simply never be enforced. These provisions, however, are regularly enforced in Colorado courts. See, e.g., Midtown Invs., LP v. Auto-Owners Ins. Co., No. 20-cv-01594-PAB-STV, 2021 WL 857732, at *2–5 (D. Colo. Mar. 8, 2021) (enforcing two-year contractual limitations provision); Grant Fam. Farms, 155 P.3d at 539 (same); Pinewood Townhome Ass’n, Inc v. Auto Owners Ins. Co., No. 15-cv-01604-CMA-NYW, 2017 WL 590294, at *2 (D. Colo. Feb. 13, 2017) (same); Steeplechase II Condo. Ass’n, Inc. v. Travelers Indem. Co., No. 17-cv-01273-PAB-NRN, 2018 WL 6571392, at *4 (D. Colo. Dec. 13, 2018) (same).
Finally, Plaintiffs contend that application of the contractual limitations period here would be unreasonable because Allstate did not deny the claim until February 2022, so a one-year limitations period “is unreasonable given the realities of filing and pursuing claims today.” [Doc. 69 at 7]. While the Court acknowledges that a one-year limitations period is brief and requires a litigant to work quickly, Plaintiffs have not demonstrated that enforcing the Parties’ contracted-for limitation based on these factual circumstances would be so unreasonable as to violate Colorado public policy. It is undisputed that Plaintiffs hired counsel “to represent them in the claim for benefits under the Allstate Policy” in January 2022, before Allstate denied the claim. [Doc. 62 at ¶¶ 13–14; Doc. 69
In the alternative, Plaintiffs argue that the Policy is ambiguous and should be construed in their favor. [Doc. 69 at 10]. They assert that the Policy states “in one place” that “the action must be commenced within one year of the date the cause of action accrued,” but inconsistently says in “another section” that the “action [must] be commenced within one year of the date of loss.” [Id.]. “Any ambiguity in an insurance policy is construed in favor of providing coverage to the insured.” Cary v. United of Omaha Life Ins. Co., 108 P.3d 288, 290 (Colo. 2005). An insurance policy is ambiguous if, construed as a whole, “it is susceptible on its face to more than one reasonable interpretation.” Id.
It is undisputed that the loss occurred on May 30, 2021, [Doc. 62 at ¶ 1; Doc. 69 at 3 ¶ 1], and the Court has concluded as a matter of law that the Policy required that any claim for breach of contract be filed within one year after that date. Because Plaintiffs did not file this lawsuit until February 20, 2024, [Doc. 5 at 1], their breach of contract claim is untimely. Accordingly, the Motion for Summary Judgment is GRANTED as to the breach of contract claim.
2. Bad Faith Claims
Under Colorado law, there are two types of insurance-based bad faith claims available to an insured party: (1) common law bad faith and (2) unreasonable delay or denial of insurance benefits under
a. Statute-of-Limitations Affirmative Defense
Allstate argues first that it is entitled to summary judgment on the bad faith claims because they are untimely based on Colorado’s two-year statute of limitations for tort claims. [Doc. 62 at 16–18]. But as Allstate concedes elsewhere, Allstate did not raise this affirmative defense in its Answer, see [Doc. 11]; see also [Doc. 58 at 2], and this Court has denied Allstate’s request to amend its Answer to assert that affirmative defense, see supra Section I.B.
Rule 8 requires a defendant to “state in short and plain terms its defenses to each claim asserted against it,”
It is not clear whether the Court must consider the propriety of constructive amendment here since it has already denied Defendant’s affirmative request to amend its Answer. But even if the Court were to consider constructive amendment—a theory not asserted by Defendant in its Motion for Summary Judgment, see [Doc. 62]—the Court would not permit it. Constructive amendment is governed by “the same standards that govern motions to amend.” Ahmad, 435 F.3d at 1202. For the reasons explained above,
b. Coverage Required for Bad Faith
Alternatively, Defendant contends that Plaintiffs’ bad faith claims fail because there is no coverage available under the Policy. [Doc. 62 at 18]. It asserts that “[i]f there is no coverage, there can be no unreasonable delay or denial of a claim for benefits . . . because the benefits were never owed.” [Id.]. Indeed, it is well-established that a claim for unreasonable delay or denial of benefits requires a showing that benefits are actually owed to the insured. See TBL Collectibles, Inc. v. Owners Ins. Co., 285 F. Supp. 3d 1170, 1201 (D. Colo. 2018) (to prevail on a statutory bad faith claim, the plaintiff must provide that “(1) benefits were owed under the policy; and (2) defendant unreasonably delayed or denied payment of plaintiff’s claim”).
However, Allstate’s other argument—that if there is no coverage, “there can be no bad faith acts or omissions with [respect] to evaluating or investigating a claim for benefits,” and “[h]ow Allstate acted, or failed to act when investigating, adjusting, or
Accordingly, while Allstate is correct that a determination of no coverage will be fatal to Plaintiffs’ statutory claim, Allstate’s argument that the common law claim is also entirely dependent on a coverage determination is not accurate. With this in mind, the Court turns to the Parties’ coverage arguments.9
The Policy provides, in pertinent part, that Allstate “will not cover” any loss
arising from a collision of your auto, or your trailer or travel-trailer, with another object or by upset of that auto, trailer or travel-trailer if, at the time of the loss, the auto was being operated by a licensed driver who was not listed on your Policy Declarations as a driver and who was either:
a) a resident; or
b) a guest temporarily staying in your home.We will not apply this exclusion under the following circumstances:
a) The driver operating the auto became a resident, a guest temporarily staying in your home, or a licensed driver no more than 185 days prior to the loss[.]
[Doc. 62-3 at 26]. “Resident” means “a person who physically resides in your household with the intention to continue residence there.” [Id. at 15].
It is undisputed that Brianna Alvarado was not listed as a driver on the Policy Declarations, [Doc. 62 at ¶ 8; Doc. 69 at 3 ¶ 8]; she resided in Plaintiffs’ home from when she was a newborn through the time of the collision, [Doc. 62 at ¶ 5; Doc. 69 at 3 ¶ 5]; and she became a licensed driver on June 1, 2020, more than 185 days prior to the collision, [Doc. 62 at ¶ 20; Doc. 69 at 5 ¶ 20]. Based on these undisputed facts, Defendant argues that Brianna Alvarado is not a driver covered by the Policy. [Doc. 62 at 11].
Plaintiffs respond by invoking the doctrine of reasonable expectations, insisting that Allstate’s “actions, errors, and omissions induced Plaintiffs to believe the [car] had collision and comprehensive coverage when Brianna was driving.” [Doc. 69 at 10]. The doctrine of reasonable expectations “obligates insurers to clearly and adequately convey
(1) where an ordinary, objectively reasonable person would, based on the language of the policy, fail to understand that he or she is not entitled to the coverage at issue; and (2) where, because of circumstances attributable to an insurer, an ordinary, objectively reasonable insured would be deceived into believing that he or she is entitled to coverage, while the insurer would maintain he or she is not.
Plaintiffs appear to argue that both circumstances are present here. First, they contend that an ordinary, objectively reasonable person would read the Policy and believe that Brianna was a covered driver. [Doc. 69 at 12–13]. They rely on the Policy definitions of “insured person” and “resident”:
Insured Person means:
a) While using your insured auto:
(1) you;
(2) any resident; and
(3) any other person using it with your permission.
b) While using a non-owned auto:
(1) you; and
(2) any resident relative.
[Doc. 62-3 at 25]. And as already mentioned, “resident” is defined to mean “a person who physically resides in your household with the intention to continue residence there.” [Id. at 15]. In Plaintiffs’ view, “an ordinary person would understand Brianna to be a resident who would then qualify as an insured person for purposes of comprehensive and collision coverage.” [Doc. 69 at 12].
Plaintiffs, however, do not direct the Court to any Policy language supporting their belief that an ordinary person would understand that coverage exists so long as the subject vehicle is driven by an “insured person.” See [id.]. Indeed, there are no provisions
“Colorado courts have [also] honored the reasonable expectations of an insured where circumstances attributable to an insurer have deceived ordinary, objectively reasonable insureds into believing that they are entitled to coverage, while the insurer would maintain they do not enjoy such coverage.” Bailey, 255 P.3d at 1053. “In order for reasonable expectations to prevail over exclusionary policy language, an ‘insured must demonstrate through extrinsic evidence that its expectation[s] of coverage [are] based on specific facts which make these expectations reasonable.’” Id. at 1054 (quoting O’Neill Investigations, Inc. v. Ill. Emp. Ins. of Wausau, 636 P.2d 1170, 1177 (Alaska 1981)) (alterations in original). “These specific facts must show that, through procedural or substantive deception attributable to the insurer, an objectively reasonable insured would have believed he or she possessed coverage later denied by an insurer.” Id.
Plaintiffs contend that these circumstances are present here. Specifically, they state that Ms. Alvarado called Allstate when Brianna “was first able to drive a car” covered by the Policy, i.e., when Brianna “first obtained a learner[’s] permit.” [Doc. 69 at 11]. They
For the reasons explained below, the Court respectfully concludes that Plaintiffs have not established a genuine dispute of material fact because a reasonable jury could not find that “an ordinary, objectively reasonable insured would [have been] deceived into believing that he or she is entitled to coverage” for damages arising out of a collision involving Brianna. Bailey, 255 P.3d at 1043.
As explained above, the Policy, which instructs insureds to “review [their] Policy Declarations carefully each time [they] receive one,” [Doc. 62-3 at 11], clearly and unambiguously excludes coverage for property loss arising from a collision if the vehicle “was being operated by a licensed driver who was not listed on your Policy Declarations as a driver and who was . . . a resident.” [Doc. 62-3 at 26 (emphasis altered)]. Milo Alvarado and Lois Alvarado are the only drivers listed on the Policy Declarations. [Id. at 7]. The Declarations further advise the insureds:
*Are there licensed drivers not listed above who either reside in your household (even if temporarily away from home) or are guests staying in your home for more than 185 days? If so, please contact us. Even if you have purchased coverage for loss to your auto, trailer or travel-trailer (for example, Auto Collision Insurance) or other property, there are circumstances in which a loss to that auto, trailer, travel-trailer or other
property might not be covered by this policy simply because the auto was being operated by one of those unlisted drivers at the time of the loss. Details regarding this, and details regarding your policy’s exclusion of any drivers listed below, can be found in your policy documents.
[Id. (emphasis altered)]. Elsewhere, the Policy imposes a duty on the insureds to promptly notify Allstate “when any resident of your household acquires a driver’s license.” [Id. at 15 (emphasis altered)].
Plaintiffs concede that Ms. Alvarado contacted Allstate when Brianna obtained her learner’s permit, see [Doc. 69 at 11], and they assert that an Allstate representative told Ms. Alvarado that Brianna was “covered with her permit,” [Doc. 62-2 at 24:23–24]. Plaintiffs have adduced no evidence, however, that Allstate represented to Plaintiffs that Brianna would be covered once she obtained her driver’s license and became a “licensed driver.” See generally [Doc. 69]. When viewed in conjunction with the Policy’s clear language, Allstate’s apparent representation to Ms. Alvarado that Brianna would be covered “with her [learner’s] permit” would not have caused an objectively reasonable person to believe that Brianna was covered by the Policy after she obtained her license because (1) she was not listed as a driver on the Policy Declarations; (2) the Policy excluded coverage for resident drivers not listed on the Policy Declarations; and (3) the Policy expressly warned that unnamed licensed resident drivers may not be covered.
“[T]he doctrine of reasonable expectations does not contemplate the expansion of coverage on a general equitable basis.” Bailey, 255 P.3d at 1054 (quotation omitted). Because Plaintiffs have not come forward with “specific facts” demonstrating “that, through procedural or substantive deception attributable to the insurer, an objectively reasonable insured would have believed he or she possessed coverage later denied by an insurer,” id., they have not established a genuine dispute of fact sufficient to preclude
Because there is no coverage, Plaintiffs cannot succeed on their unreasonable delay or denial claim. See TBL Collectibles, 285 F. Supp. 3d at 1201. The Motion for Summary Judgment is GRANTED with respect to Plaintiffs’ statutory bad faith claim.
On the other hand, and as stated above, a common law bad faith claim can “exist[] independently from the liability imposed by the insurance contract.” Flickinger, 824 P.2d at 24. Plaintiffs’ common law claim relies in part on Allstate’s alleged claims-handling conduct, see [Doc. 5 at ¶ 44], but Defendant does not address this portion of Plaintiffs’ claim in its Motion for Summary Judgment, see [Doc. 62]. And Allstate’s last remaining argument—that Plaintiffs have no evidence about the value of their car, see [id. at 15–16]—is simply not relevant to the portion of Plaintiffs’ claim challenging Allstate’s claims-handling conduct. Defendants have not demonstrated that they are entitled to summary judgment on Plaintiffs’ common law claim, and the Motion for Summary Judgment is therefore DENIED to the extent it seeks judgment as a matter of law on this claim.
III. Motions to Exclude
A. Legal Standard
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.
It is well established that trial courts are charged with the responsibility of acting as gatekeepers to ensure that expert testimony is reliable and relevant. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147–52 (1999); Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 588–89 (1993). To fulfill that gatekeeper function, the trial court first analyzes whether the proffered expert is qualified “by knowledge, skill, experience, training, or education” to render their opinions.
Allstate moves to exclude the opinions of John Kezer, Plaintiff’s insurance industry expert. [Doc. 57]. Allstate primarily argues that Mr. Kezer’s opinions improperly instruct the jury on what the law is and usurp the jury’s fact-finding function. See [id. at 5–6].
Our judicial system “reserves to the trial judge the role of adjudicating the law for the benefit of the jury.” Specht v. Jensen, 853 F.2d 805, 809 (10th Cir. 1988). Thus, courts routinely conclude that an expert witness “may not direct the jury’s understanding of the applicable legal rights and obligations of the parties.” Stoker v. State Farm Mut. Auto. Ins. Co., No. 19-cv-03569-NYW, 2021 WL 4201583, at *6 (D. Colo. May 6, 2021). Importantly, however, “simply referring to the law as part of the basis for an opinion will not render that opinion improper.” EEOC v. W. Distrib. Co., 643 F. Supp. 3d 1205, 1219 (D. Colo. 2022); see also United States v. Schneider, 704 F.3d 1287, 1294 (10th Cir. 2013) (recognizing that courts “allow experts to refer to the law in expressing their opinion” (cleaned up)). “[A]n expert’s testimony is proper under Rule 702 if the expert does not attempt to define the legal parameters within which the jury must exercise its fact-finding function.” Specht, 853 F.2d at 809–10. But if the expert’s testimony “direct[s] the jury’s understanding of the legal standards upon which their verdict must be based, the testimony cannot be allowed.” Id. at 810.
Furthermore, an expert witness may not “state legal conclusions drawn by applying the law to the facts,” A.E. ex rel. Evans v. Indep. Sch. Dist. No. 25, 936 F.2d 472, 476 (10th Cir. 1991), as “such ultimate conclusions would not be helpful to the jury and would improperly intrude on its fact-finding function,” O’Sullivan v. Geico Cas. Co., 233 F. Supp. 3d 917, 929 (D. Colo. 2017). In insurance cases, courts often hold that an expert may
Even so, an industry expert may opine about whether an insurer complied with industry standards. See George v. Metro. Prop. & Cas. Ins. Co., No. 18-cv-01663-PAB-SKC, 2020 WL 70424, at *9, *13 (D. Colo. Jan. 2, 2020) (permitting expert to testify that insurer’s conduct “did not conform with” or “departed from” insurance industry standards); Canyon Club Condo. Owners Ass’n v. Am. Fam. Mut. Ins. Co., No. 18-cv-00683-DDD-STV, 2023 WL 10410009, at *4 (D. Colo. Sept. 29, 2023) (concluding that expert’s opinions about whether insurer complied with industry standards “may assist the jury in its determination of whether or not the insurance claim was investigated reasonably”).
Mr. Kezer’s report contains six primary opinions, see [Doc. 57-1 at 11–17], and then concludes with seven additional options, see [id. at 20–21]. Allstate presents its arguments in an opinion-by-opinion fashion, see [Doc. 57 at 6–13], and the Court will do the same.
Opinion 1: “In my opinion, and as is supported further by the chronology of its handling of the claim as becomes even more clear when one considers my analyses and comments below, it appears that Allstate misrepresented that it would work to resolve the claim ‘quickly and fairly’ which did not meet or satisfy the requirements of subsection (I) of [Colorado’s Unfair Claims Settlement Practices Act (‘UCSPA’)] cited above.”
[Doc. 57-1 at 11].
Alternatively, Defendant contends that Mr. Kezer “does not accurately cite” the statute because the law “does not contain a subsection that states claims shall be resolved ‘quickly and fairly,’ so “Mr. Kezer’s apparent summary of the law . . . is grossly deficient” and “misleading.” [Doc. 57 at 7]. Respectfully, this argument misstates Mr. Kezer’s opinion, which clearly quotes the “quickly and fairly” language from a letter Allstate sent to Plaintiffs—not the UCSPA. See [Doc. 57-1 at 11]. Mr. Kezer then opines that Allstate “misrepresented that it would work to resolve the claim ‘quickly and fairly,’” which was inconsistent with
Opinion 2: “In my opinion, Allstate did not meet or satisfy the insurance industry requirement set forth in” Dunn v. American Family Insurance, 251 P.3d 1232 (Colo. App. 2010).
[Doc. 57-1 at 12].
Defendant argues that this opinion should be excluded because it assumes Dunn “applies” in this case, but “only the Court will determine if Dunn applies.” [Doc. 57 at 9]. The Court respectfully disagrees. Generally, “referencing industry standards—some of which are derived from case law—does not constitute improper legal-conclusion testimony.” Bethel, 596 F. Supp. 3d at 1268. Mr. Kezer may articulate the industry
Allstate also argues that the opinion should be excluded because Mr. Kezer “mistakenly summarizes” the holding of Dunn. [Doc. 57 at 9–10]. In his report, Mr. Kezer frames the “holding” of Dunn as a ruling that “every insurer has a duty to promptly and effectively communicate with anyone it was reasonably aware had or legitimately needed information pertaining to the handling of a claim.” [Doc. 57-1 at 7]. According to Allstate, Dunn stands for the narrower principle that an insurer has a duty “to adequately and promptly communicate in the course of investigating and handling [the insured’s] claim.” [Doc. 57 at 9]. The Court does not necessarily agree with Allstate’s argument, as the Dunn court articulated the insurer’s duty in a broad and a more specific way. See 251 P.3d at 1237 (“We agree with plaintiffs . . . that defendant had a good faith duty to adequately and promptly communicate in the course of investigating and handling their claim.”); id. at 1238 (“[W]e conclude that defendant had a duty to promptly and effectively communicate with anyone it was reasonably aware had or legitimately needed information pertaining to the handling of plaintiffs’ claim.”). With that said, while Mr. Kezer may articulate insurance industry standards and present his opinions in that context, he will not be permitted to opine about whether Allstate owed any legal duty to Plaintiffs. See Baumann v. Am. Fam. Mut. Ins. Co., 836 F. Supp. 2d 1196, 1202 (D. Colo. 2011) (An opinion about whether an insurer owed a legal duty “usurp[s] the function of the trial judge to instruct the jury on the law.”). Nor will the Court permit Mr. Kezer to interpret the Dunn
Accordingly, the Motion to Exclude Kezer is GRANTED in part with respect to Opinion 2. The Court does not outright preclude Mr. Kezer from opining that Allstate failed to promptly or effectively communicate with Plaintiffs, but any such opinion must presented within the parameters discussed above and the Court will entertain contemporaneous objections if necessary.
Opinion 3: “In my opinion, and based upon the chronology of the letters themselves, Allstate did not meet or satisfy the insurance industry standards requiring a prompt investigation cited above.”
[Doc. 57-1 at 14].
Allstate’s argument that this opinion should be excluded because Mr. Kezer “is not permitted to determine the applicable law or instruct the jury on its application,” [Doc. 57 at 10], is unpersuasive for the reasons explained above. Mr. Kezer’s reference to a statute in support of this opinion does not mean that he is attempting to instruct the jury on the law. Schneider, 704 F.3d at 1294.
Defendant also contends that Opinion 3 is based on nothing more than a typographical error referencing a non-existent Policy provision. [Doc. 57 at 10].10 The Court disagrees with this reading. While Mr. Kezer’s immediately following opinion (Opinion 4, discussed below), relies on that error, see [Doc. 57-1 at 15], Opinion 3 does not. Rather, to support his opinion that Allstate did not conduct a prompt investigation,
Opinion 4: “In my opinion, Allstate misrepresented the basis for its determination that there was no coverage for the loss to the auto based upon the fact there was no ‘Part 6’ in the Policy issued to the Alvarados.”
Opinion 5: “In my opinion, Allstate did not meet or satisfy these insurance industry standards.”
Opinion 6: “I leave the elements of proof about all of this to you, but, in my opinion, Allstate’s Policy provided comprehensive and collision insurance for the 2012 Ford Fusion for the [collision] caused by Brianna.”
[Doc. 57-1 at 15, 17].
Allstate challenges these three opinions together on the basis that they are improper legal conclusions couched as expert opinions. It asserts that these opinions are “nothing more than [Mr. Kezer’s] legal analysis of whether [the Policy] covered the subject accident.” [Doc. 57 at 11–12]. First, as for Opinion 4, the Court is unpersuaded by Allstate’s argument. As the Court reads Opinion 4 and its surrounding context, Mr. Kezer is opining that Allstate misrepresented the basis for its coverage determination because it cited a non-existent Policy provision in its denial letter. See [Doc. 57-1 at 15 (opining that Allstate misrepresented its decision “based upon the fact there was no ‘Part 6’ in the Policy” (emphasis added))]; see also [id. at 14 (referencing the same error)]. The Court
The Court will also not exclude Opinion 5. As mentioned above, insurance industry experts may opine about whether an insurer did or did not comply with industry standards. George, 2020 WL 70424, at *9, *13; Canyon Club, 2023 WL 10410009, at *4. Although Mr. Kezer cannot opine about whether Allstate violated the law or acted in bad faith, O’Sullivan, 233 F. Supp. 3d at 930, so long as he couches his opinion in the context of industry standards, the opinion will be permitted.
With respect to Opinion 6, however, the Court readily agrees with Defendant. Mr. Kezer’s opinion as to whether the Policy provides coverage is clearly based on his interpretation of the Policy, see [Doc. 57-1 at 17], and this interpretation is contrary to the Court’s binding interpretation above. Any such opinion would not only impermissibly be a legal conclusion, but it would confuse the jury by providing an incorrect statement of the law of this case. The Motion to Exclude Kezer is GRANTED as to Opinion 6.
7. Additional Options
Near the end of his report, Mr. Kezer states that although he had “listed a number of insurance industry standards,” he had not “included opinions on all of them,” so he [t]herefore, . . . add[s] the following opinions”:
[Opinion 7] It didn’t appear to me that Allstate met or satisfied the requirements contained in [UCSPA] subsection (II) (which required it to acknowledge and act reasonably promptly upon communications with
respect to claims arising under insurance policies) nor the NAIC Standard 2 (requiring a timely investigation to be conducted[).] [Opinion 8] I don’t know if Allstate adopted reasonable standards for the prompt investigation of claims arising under insurance policies as required by subsection (III) of the UCSPA which would have been applicable to the claims, but, even if it did, there’s no proof it implemented such standards.
[Opinion 9] Given the circumstances, it didn’t appear to me that Allstate met or satisfied the requirements of subsection (VI) of the UCSPA (which required it to attempt to negotiate in good faith to effectuate a prompt, fair, or equitable settlement of the Alvarados’ claims).
[Opinion 10] Although it doesn’t apply directly, it appears to me that the Alvarados were forced to sue in an attempt to collect benefits due to them for the collision loss involving the 2012 Ford Fusion which, if true, would be contradictory to the insurance industry standard expressed in subsection (VII) of the UCSPA.
[Opinion 11] And, if I haven’t made it clear before, it appears to me that Allstate failed to provide a reasonable explanation of the basis in the Policy in relation to the applicable facts or applicable law to the Alvarados (as required by subsection (XIV) of the UCSPA[)].
[Opinion 12] If one tracks the chronology of what occurred, it appears that Allstate unreasonably delayed and unreasonably denied the Alvardos’ [sic] claim for coverage in violation of
C.R.S. §§ 10-3-1115 and10-3-1116 .[Opinion 13] And, if one reviews the section of the book I cited above from the Institutes, it does not appear that Allstate met or satisfied the requirements for “Good-Faith Claim Handling” and, in particular, that last sentence I cited (which required an investigation to seek to discover facts and to consider all aspects of the claim in order to reach an impartial decision).
[Id. at 20–21]. Allstate argues that these opinions should be excluded because (1) they improperly state the UCSPA applies to this case or improperly state that
Opinions 10 and 12 will also be excluded as irrelevant and unhelpful to the jury because the Court has determined there is no coverage under the Policy and granted Defendant summary judgment on Plaintiffs’ statutory bad faith claim. Moreover, Opinion 10 improperly concludes that coverage was available under the Policy, in contravention of the Court’s above analysis, and Opinion 12 improperly opines that Defendant violated the law. O’Sullivan, 233 F. Supp. 3d at 930.
Finally, the Court will not exclude Opinions 8 or 11. Although these opinions are not supported by a robust explanation, the Court finds that, when read in conjunction with
Accordingly, the Motion to Exclude Kezer is GRANTED in part and DENIED in part. It is GRANTED with respect to Opinions 6, 7, 9, 10, 12, and 13. It is GRANTED in part with respect to Opinions 1 and 2, which must be narrowly couched within the limitations discussed above. It is DENIED as to Opinions 3, 4, 5, 8, and 11.
C. Motion to Exclude Patterson
Finally, Plaintiffs move to exclude the testimony of Defendant’s claims-handling expert, Franklin Patterson. [Doc. 63 at 1]. They argue primarily that Mr. Patterson’s opinions amount to impermissible legal conclusions. See [id. at 4–8].
The Motion to Exclude Patterson was filed on November 21, 2025. [Doc. 63]. This Court’s Civil Practice Standards state that “[u]nless otherwise ordered, all motions filed under
Under
Plaintiffs did not seek or obtain an extension of the Rule 702 motions deadline. Moreover, although Defendant highlights the Motion’s untimeliness in its Response, see [Doc. 66], Plaintiffs did not file a reply brief and have never addressed the Motion’s untimeliness. They have thus not demonstrated good cause to extend the Rule 702 motions deadline or that the missed deadline was due to excusable neglect. In addition, the general rule is that “[a] party may waive the right to object to evidence on Kumho/Daubert grounds by failing to make its objection in a timely manner.” Questar Pipeline Co. v. Grynberg, 201 F.3d 1277, 1289–90 (10th Cir. 2000).
CONCLUSION
For the reasons set forth in this Order, IT IS ORDERED that:
- Defendant Allstate’s Motion to Exclude Plaintiffs’ Expert Mr. John Kezer [Doc. 57] is GRANTED in part and DENIED in part;
- Defendant’s Motion for Leave to Amend Answer to Add Affirmative Defense [Doc. 58] is DENIED;
- Allstate Insurance Company’s Motion for Summary Judgment [Doc. 62] is GRANTED in part and DENIED in part;
- Plaintiffs’ Motion to Exclude Defendants’ Expert Mr. Franklin Patterson [Doc. 63] is DENIED; and
A Telephonic Status Conference is SET for September 1, 2026 at 10:00 A.M. to set the Final Pretrial/Trial Preparation Conference and trial in this case. Counsel for the Parties shall participate using the following dial-in information: 571-353-2301; Access Code: 783456374.
DATED: August 10, 2026 BY THE COURT:
_________________________
Nina Y. Wang
United States District Judge