Jackie Booker and Joe Okon prevailed on an appeal to the Colorado Court of Appeals which determined choice of law did not afford plaintiff UIM benefits for a motor vehicle accident in Colorado under an Oregon insurance policy. The Court of Appeals went on to affirm the lower courts ruling that without benefits owed there could be no unreasonable denial of benefits under section 10-3-1115.

In November 2019, the El Paso County District Court determined that under choice of law factors applicable to insurance contracts, Oregon law applied to an Oregon automobile insurance policy absent an express choice of law provision and granted Summary Judgment finding no underinsured motorist (UIM) benefits were owed. The Court held an evidentiary hearing regarding waiver and estoppel based upon insurer’s pre- and post-suit conduct and found no evidence supporting either argument. The insured appealed.

The Court of Appeals affirmed concluding that the parties to the insurance contract understood Oregon was the principal location of the insured risk during the term of the policy, and that the insurer was entitled to apply the setoff provision in the Oregon policy and under Oregon law, thus no UIM benefits were owed. The Court also found that since the insured was not entitled to any UIM benefits, the insurer could not have unreasonably denied benefits under C.R.S. section 10-3-1115, Colorado’s penalty statute affording two times the covered benefit and attorney’s fees for an unreasonably delay or denial of first party insurance benefits. The Court applied Colorado law to waiver as a procedural bar but found ambiguity in the insurer’s conduct pre-suit with respect to the insurer’s position and thus no intentional relinquishment of a known right. The Court expressly recognized that pre-suit investigation on the merits of the UIM claim by conduct of the insurer such as reviewing medical records and evaluating the claim cannot form a basis for estoppel. The Court found no evidence supporting a misrepresentation to the insured and thus rejected the estoppel argument.