                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                            FOR THE TENTH CIRCUIT                            May 23, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 PATRICIA MISCHEK, individually and
 on behalf of all persons similarly situated;
 SKUYA CHRISTENSEN, individually and
 on behalf of all persons similarly situated,

       Plaintiffs - Appellants,
                                                              No. 18-1156
 v.                                             (D.C. Nos. 1:16-CV-03208-PAB-MLC &
                                                      1:17-CV-00041-PAB-MLC)
 STATE FARM MUTUAL                                             (D. Colo.)
 AUTOMOBILE INSURANCE
 COMPANY, a foreign corporation,

       Defendant - Appellee.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before HOLMES, McKAY, and CARSON, Circuit Judges.
                  _________________________________

      This is an appeal from two putative class action cases that were consolidated in

the district court. Plaintiffs contend that State Farm impermissibly reduced its

insureds’ uninsured/underinsured motorist benefits by the amounts it paid under

medical payments coverage. State Farm sought summary judgment on the ground

that Plaintiffs had previously “settled and/or reached an accord and satisfaction” on

their disputed insurance claims against State Farm. (Appellants’ App. at 170.) The


      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
district court agreed and accordingly granted summary judgment in favor of State

Farm. We review the district court’s summary judgment order de novo. See

McCracken v. Progressive Direct Ins. Co., 896 F.3d 1166, 1172 (10th Cir. 2018).

      Plaintiffs raise two main arguments on appeal: (1) they did not truly settle their

claims with State Farm because they never signed a written release, and (2) even

assuming they reached a settlement agreement with State Farm, this agreement is

unenforceable based on public policy and retroactive application of the Colorado

Supreme Court’s decision in Calderon v. American Family Mutual Insurance Co.,

383 P.3d 676 (Colo 2016). Plaintiffs’ second argument is foreclosed by our recent

opinion in McCracken, 896 F.3d at 1172–73, in which we rejected a virtually

identical argument brought by other Colorado insureds following the Calderon

decision. As for Plaintiffs’ first argument, we agree with the district court that the

facts in this case, even taken in the light most favorable to Plaintiffs, show that

Plaintiffs’ claims are precluded by the doctrine of accord and satisfaction.

      Contrary to Plaintiffs’ representations, it is immaterial that they did not sign a

written release. Colorado law does not require a written release to settle claims.

Rather, “to constitute an accord and satisfaction, . . . money should be offered in full

satisfaction of the demand, and be accompanied by such acts and declarations as

amount to a condition that the money, if accepted, is accepted in satisfaction,” and

“such that the party to whom it is offered is bound to understand therefrom that, if he

takes it, he takes it subject to such conditions.” Pitts v. Nat’l Indep. Fisheries Co.,

206 P. 571, 571 (Colo. 1922). In R.A. Reither Construction, Inc. v. Wheatland Rural

                                            2
Electric Ass’n, 680 P.2d 1342, 1344 (Colo. App. 1984), a Colorado court found these

requirements to be met where the plaintiff simply deposited two checks which “bore

notations indicating that they were being offered in satisfaction of the entire

outstanding obligation . . . [and] were followed by a letter from [the defendant]

stating that the checks were offered in full settlement of the dispute.” The undisputed

facts of this case similarly establish that each Plaintiff accepted a payment in full

satisfaction of her disputed insurance claim against State Farm. For instance, the

record reflects that Ms. Mischek’s attorney engaged in settlement negotiations with

State Farm that resulted in Ms. Mischek receiving a “payment in the amount of

$70,531.89 for settlement of [her] Underinsured Motorist claim,” which State Farm

“confirm[ed] . . . settles any and all claims under the Underinsured Motorist

Coverage.” (Appellee’s Suppl. App. at 292.) The check stub for this payment bore

the notation, “Full and final UIM settlement.” (Id. at 552.) Ms. Mischek did not

dispute the amount of payment or return the check; rather, as in R.A. Reither, the

settlement check was accepted and deposited, which is sufficient under Colorado law

to “discharge[] the underlying obligation,” 680 P.2d at 1345. Ms. Christensen

likewise accepted a $16,000 payment made by State Farm based on the parties’

“agree[ment] to settle [her] underinsured motorist claim for $16,000, inclusive of all

liens.” (Appellants’ App. at 167.) Plaintiffs have cited no persuasive reason why

their acceptance of State Farm’s settlement checks would not meet the elements of

the doctrine of accord and satisfaction under Colorado law.



                                            3
      As the district court correctly explained, “[b]ecause both Ms. Mischek and

Ms. Christensen accepted payment from State Farm to settle their UIM claims, the

doctrine of accord and satisfaction bars them from seeking additional UIM benefits

that they allege were unlawfully withheld.” (Id. at 330.) We therefore AFFIRM the

district court’s summary judgment decision.


                                          Entered for the Court


                                          Monroe G. McKay
                                          Circuit Judge




                                         4
