                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                     UNITED STATES CO URT O F APPEALS
                                                                October 18, 2007
                                                    Elisabeth A. Shumaker
                         FO R TH E TENTH CIRCUIT        Clerk of Court



    DELO RES CAM PBELL,

                Plaintiff-Appellant,

    v.                                                 No. 07-1104
                                            (D.C. No. 05-cv-01757-W DM -CB S)
    ALLSTATE INSURANCE                                  (D . Colo.)
    COM PA NY, an Illinois corporation,

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before HO LM ES, HOL LOW A Y, and SEYM OUR, Circuit Judges.




         This action is based on the now-repealed Colorado Auto Accident

Reparations Act (“No-Fault Act” or “CAARA”). 1 Plaintiff Delores Campbell was

injured in an automobile accident in July 2002, and she received basic personal

injury protection (PIP) benefits under an automobile insurance policy issued to

*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. 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not binding precedent, except under the doctrines of law of the case, res judicata,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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
       The Colorado legislature repealed the No-Fault Act on July 1, 2003, and all
citations herein are to the 2002 version of the statute.
her by defendant Allstate Insurance Company. M s. Campbell filed this diversity

action seeking reformation of the policy to include enhanced PIP benefits under

Colo. Rev. Stat. § 10-4-710(2)(a), alleging that, while she did not purchase

enhanced PIP coverage from Allstate, she was entitled to receive enhanced PIP

benefits because Allstate’s offer of such benefits did not comply with the

No-Fault Act. M s. Campbell also asserted causes of action against Allstate for

breach of contract and bad faith. She is now appealing the order entered by the

district court denying her motion for partial summary judgment and granting

summary judgment in favor of Allstate. Exercising jurisdiction under 28 U.S.C.

§ 1291, we affirm.

      A. G overning Law and Standard of Review .

      “In diversity cases like this one, the substantive law of the forum state

governs the analysis of the underlying claims, but we are governed by federal law

in determining the propriety of the district court’s grant of summary judgment.”

Hill v. Allstate Ins. Co., 479 F.3d 735, 739 (10th Cir. 2007) (quotation omitted).

“W e review the grant of summary judgment de novo, applying the same standard

as the district court pursuant to Rule 56(c) of the Federal Rules of Civil

Procedure.” Gwinn v. Awmiller, 354 F.3d 1211, 1215 (10th Cir. 2004). Under

Rule 56(c), summary judgment is appropriate “if the pleadings, depositions,

answ ers to interrogatories, and admissions on file, together w ith the affidavits, if




                                          -2-
any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

      B. Colorado’s No-Fault Act.

      The Colorado legislature enacted the No-Fault Act in 1973 “with the

purpose of avoiding inadequate compensation to all victims of automobile

accidents.” Reid v. GEICO Gen. Ins. Co., __ F.3d __, 2007 W L 2405254, at *1

(10th Cir. Aug. 24, 2007). To accomplish this purpose, the Act “required

complying automobile insurance policies to include certain minimum or basic

[PIP] benefits to compensate injured persons for medical expenses and lost

wages.” Id. Colo. Rev. Stat. § 10-4-706(1) sets forth the terms of the basic PIP

coverages required under the No-Fault Act, and “[s]ection 10-4-707 delineates the

categories of people who must receive [basic] coverage under § 706 as including

‘1) the named insured, 2) resident relatives of the named insured, 3) passengers

occupying the insured’s vehicle with the consent of the insured, and 4)

pedestrians who are injured by the covered vehicle.’” Hill, 479 F.3d at 737

(quoting Brennan v. Farmers Alliance Mut. Ins. Co., 961 P.2d 550, 553 (Colo. Ct.

App. 1998)).

      “The No-Fault Act also required every insurance company to offer optional

extended PIP benefits to its insureds, in exchange for higher premiums.” Id.

Specifically, the Act provided as follow s:




                                         -3-
      Every insurer shall offer the following enhanced benefits for
      inclusion in a complying policy, in addition to the basic coverages
      described in section 10-4-706, at the option of the named insured:

      (I) Compensation of all expenses of the type described in section
      10-4-706(1)(b) without dollar or time limitation; or

      (II) Compensation of all expenses of the type described in section
      10-4-706(1)(b) without dollar or time limitations and payment of
      benefits equivalent to eighty-five percent of loss of gross income per
      week from work the injured person would have performed had such
      injured person not been injured during the period commencing on the
      day after the date of the accident without dollar or time limitations.

Colo. Rev. Stat. § 10-4-710(2)(a); see also Soto v. Progressive Mountain Ins. Co.,

__ P.3d __, 2007 W L 2128189, at *4 (Colo. Ct. App. July 26, 2007) (holding that

No-Fault Act required insurers to offer, as alternative choices, both of the

enhanced PIP coverages described in subsections I and II of § 710(2)(a)).

      “Although § 710 does not specify to whom the extended coverages it

provides applies, [the Colorado Court of A ppeals held in] Brennan that they apply

to the same four categories of individuals to whom § 706 [basic] coverage

applies.” Hill, 479 F.3d at 737. Thus, as we recently noted in Hill, “Brennan

alerted all automobile insurance carriers that extended PIP benefits for

pedestrians must be offered under § 710.” Id. at 737 n.3. In Hill, we also

summarized the Colorado Court of Appeals’ substantive holding in Brennan,

noting that:

               The Colorado Court of Appeals held in Brennan that “when
      . . . an insurer fails to offer the insured optional coverage that
      satisfies [CAARA], additional coverage in conformity with the offer

                                         -4-
      mandated by statute will be incorporated into the policy.” Brennan,
      961 P.2d at 554 . . . . Thus, in Brennan, because the insurance policy
      at issue failed to offer extended PIP benefits for injured pedestrians
      and the court determined that the No-Fault Act mandated coverage
      for such pedestrians, the court ordered the policy reformed to include
      such coverage. See Clark v. State Farm M ut. Auto. Ins. Co.,
      433 F.3d 703, 710 (10th Cir. 2005) (Clark III) (“Brennan . . .
      reformed those insurance policies to include extended pedestrian
      coverage that insurers should have offered under section 710.”).

Hill, 479 F.3d at 737 (first ellipsis and alteration in original).

      Our decision in Hill also sets forth the test for determining whether an

insurer has fulfilled its duty under § 710 to offer optional enhanced PIP coverage.

As we explained:

              In an unpublished decision, our court, in determining whether
      the insurer had fulfilled its duty to offer optional extended PIP
      coverage under § 710, applied the test set out by the Colorado
      Supreme Court in Allstate Ins. Co. v. Parfrey, 830 P.2d 905, 913
      (C olo. 1992). Johnson v. State Farm M ut. Auto. Ins. Co., 158 Fed.
      Appx. 119 (10th Cir. 2005) (unpublished). . . . [W ]e take this
      opportunity to adopt and publish the following language . . . from
      [that] unpublished decision. In analyzing “the nature and scope of an
      insured’s duty” the Colorado Supreme Court “determined that the
      insurer must perform its duty of notification ‘in a manner reasonably
      calculated to permit the insured to make an informed decision on
      whether to purchase coverage higher than the minimum statutory
      liability limits.’” Johnson, 158 Fed. Appx. at 121 (quoting Parfrey,
      830 P.2d at 913). . . .

            . . . “In the final analysis,” the sufficiency of the offer “must
      be resolved under the totality of the circumstances.” [Parfrey,
      830 P.2d] at 914.

Hill, 479 F.3d at 742 (alterations omitted from Johnson quote); see also M unger

v. Farmers Ins. Exch., __ P.3d __, 2007 W L 2003001, at *2 (Colo. Ct. App.



                                           -5-
July 12, 2007) (“Although Parfrey addressed [uninsured/underinsured motorist]

coverage, . . . its analysis is equally applicable to offers of enhanced PIP

coverage.”).

      C. Allstate’s Policy D ocuments and the District Court’s O rder.

      As summarized by the district court in its summary judgment order,

Allstate made the following disclosures to M s. Campbell in connection with the

purchase of her policy:

             Plaintiff purchased her policy from an Allstate agent in
      October 1999. Around that time, she signed a Colorado PIP
      Disclosure Form which outlined the basic and enhanced PIP options
      available to her. The D isclosure Form provided that “[Allstate] also
      offers various additional PIP options which provide increased
      coverage for M edical Expenses, W ork Loss and Essential Services”
      and contained a chart setting forth the eight options for enhanced PIP
      benefits. Plaintiff does not dispute that her signature appears on the
      Disclosure Form. Plaintiff then received a copy of her policy, which
      included a section on “ADD ITIONA L PERSONA L INJURY
      PROTECTION” and set forth the eight different types of enhanced
      PIP coverage available. The policy provided that Allstate would pay
      basic and additional PIP benefits to an “injured person” in
      accordance with CAARA. The policy defined “injured person” for
      enhanced PIP benefits as “you or a resident relative who sustains
      bodily injury . . . .” However, the policy does not contain any
      exclusions for pedestrians or non-resident passengers and Allstate’s
      claims practice since 1998 has been to pay PIP benefits to
      pedestrians and non-resident passengers as required by CAARA.

             Allstate also mailed a policy renewal package to Plaintiff in
      September 2001, which contained Form X67009. The form is
      entitled “Important Notice - A Reminder for You” and recites: “W e
      want to make sure you know that Allstate offers options to purchase
      Additional Personal Injury Protection (PIP) benefits on your A llstate
      auto policy. . . . The average price associated with purchasing
      Additional PIP options is around $77* . . . . There are eight separate

                                          -6-
       coverage options that are available to choose from.” The information
       includes an explanation of the advantages of purchasing enhanced
       benefits. The form refers the customer to the descriptions of the
       options contained in the policy and directs the customer to contact an
       agent or a main customer service telephone number for questions.
       Plaintiff does not dispute that she received this form. Plaintiff also
       does not dispute that she received another form, [Form X5188] sent
       to her in . . . September 2001, and M arch 2002, which included the
       statement, “Optional personal injury protection coverages are also
       available.”

Campbell v. Allstate Ins. Co., 2007 W L 505735, at *1 (D. Colo. Feb. 14, 2007)

(last ellipsis added).

       After noting that Allstate was “mov[ing] for summary judgment, arguing

that the undisputed facts demonstrate that it made several offers to plaintiff for

the purchase of additional PIP coverage and therefore complied with CAARA,”

and that M s. Campbell was moving for partial summary judgment “on the

threshold issue of whether Allstate’s policy complied with CAARA,” id. at *2,

the district court concluded that: (1) Allstate’s offers were adequate; and (2) the

policy complied with the No-Fault Act. The district court’s reasoning was as

follow s:

              I conclude that Allstate’s several offers of additional PIP
       coverage satisfied the requirements of C.R.S. § 10-4-710. Allstate
       offered eight options for enhanced PIP benefits, designated VB01 to
       VB08. VB01 provided benefits for medical expenses and work loss
       coverage compliant with C.R.S. § 10-4-710(2)(a)(II). Option VB02
       provided benefits for medical expenses compliant with C.R.S.
       § 10-4-710(2)(a)(I). The Colorado PIP D isclosure Form, signed by
       Plaintiff, explains these coverages in writing in a manner sufficient
       to permit Plaintiff to make an informed decision on whether to
       purchase the enhanced coverage. This offer was then repeated

                                         -7-
       several times with the information contained in Plaintiff’s policy and
       in form X67009.

              Plaintiff argues, however, that the offer was not sufficient
       because the underlying PIP policy extends only to named insureds
       and resident relatives in violation of CAARA, which requires that
       PIP benefits also cover pedestrian[s] and guest occupants. See
       Brennan, 961 P.2d at 553-54; C.R.S. § 10-4-707(1) (2002). I
       disagree. The policy itself sets forth that Allstate would pay basic
       and additional PIP benefits to an “injured person” in accordance with
       CAARA, which includes all those protected by the statute. Plaintiff
       has presented no evidence that Allstate in fact has not done so.
       M oreover, . . . nothing in CAARA requires that the types of persons
       covered be specified in an offer of enhanced PIP coverage. . . .
       Unlike the policies in Brennan and Clark v. State Farm M utual
       Automobile Ins. Co., 319 F.3d 1234 (10th Cir. 2003) and Clark v.
       State Farm M utual Automobile Ins. Co., 433 F.3d 703 (10th Cir.
       2005), which contained specific policy exclusions concerning
       pedestrians, the policy here is silent on the question of coverage to
       injured persons other than those listed. Accordingly, I do not agree
       that the policy itself did not comply with CAARA.

Id. at *3.

       In sum, the district court concluded that M s. Campbell was not entitled to

have her policy reformed to provide for enhanced PIP benefits. Because the court

agreed with Allstate that M s. Campbell’s “other claims all rest upon a finding that

the policy should be reformed to include enhanced PIP benefits,” id. at *4, the

court concluded that those claims “also fail as a matter of law,” 2 id. The court




2
      In this appeal, M s. Campbell has not challenged the district court’s
conclusion that her other claims are inextricably linked to her reformation claim.
As a result, our analysis will focus exclusively on the question of reformation.

                                         -8-
therefore entered summary judgment in favor of Allstate on all of M s. Campbell’s

claims.

      D. Analysis and Application of This Court’s Decision in H ill.

      In this appeal, M s. Campbell argues that the district court erred in

concluding that: (1) Allstate’s offer of enhanced PIP coverage was sufficient to

allow her to make an informed decision on whether to purchase such coverage; 3

and (2) A llstate’s policy complied with the No-Fault Act even though the basic

PIP description in the policy did not explicitly state that it covered pedestrians

and the enhanced PIP description did not explicitly state that it covered

pedestrians and non-resident relative passengers. In light of our decision in Hill,

we conclude that the district court correctly decided both of these issues. 4

      First, in Hill, another panel of this court reviewed the same A llstate policy

and renewal documents that are at issue in this case. See Hill, 479 F.3d at




3
       Allstate has argued with some force that M s. Campbell waived this issue
because she failed to challenge the adequacy of A llstate’s offer in her summary
judgment pleadings. See Aplee. Br. at 2-3 & n.2, 11, 13-14. W e note, however,
that the district court addressed the merits of the Parfrey issue in its summary
judgment order. See Campbell, 2007 W L 505735 at *2-3. Following the lead of
the district court, we will likewise overlook any potential waiver of the issue.
4
      Although we did not decide Hill until after the district court entered its
summary judgment order, it is binding precedent for purposes of this appeal. See
Sec. and Exch. Comm’n v. M ick Stack Assocs., Inc., 675 F.2d 1148, 1149
(10th Cir. 1982) (“[T]he general rule requires that the appellate court apply the
law in effect at the time the appeal is to be decided, so long as manifest injustice
does not occur.”).

                                         -9-
742-43. The panel held that, even if “there were specific arguably ambiguous

phrases and/or wordings in the various documents,” id. at 743, it was “impossible

to conclude” that an insured would be “unable to make a reasonably informed

decision not to purchase the extended PIP coverage,” id. This reasoning is

equally applicable to this case. M oreover, although there are certain factual

differences between Hill and this case (specifically, unlike in Hill, id. at 742-43,

there is no evidence that an Allstate agent orally explained to M s. Campbell the

available options for enhanced PIP coverage at the time she purchased her

policy), we believe the documents that Allstate provided to M s. Campbell were

sufficient to satisfy its obligations under Parfrey.

      Second, in Hill, the panel unequivocally rejected M s. Campbell’s argument

that Allstate’s offer of enhanced PIP coverage was invalid because the underlying

policy did not comply with the No-Fault Act. Further, like the district court in its

summary judgment order, the panel distinguished Brennan and this court’s Clark

decisions, and its reasoning fully disposes of this appeal:

              As indicated, § 710 states that an insurer “shall offer”
      enhanced PIP benefits for inclusion in a complying insurance policy.
      Hill argues that the policy Allstate issued to the Pauls w as not a
      complying policy under the No-Fault Act because it failed to
      explicitly state that pedestrians are eligible for minimum PIP
      benefits, or that pedestrians and non-resident relative passengers are
      eligible for extended PIP benefits. Allstate [argues in response that]
      it is not necessary for a policy to specifically list the types of persons
      covered by PIP benefits and enhanced PIP benefits[.] . . . W e agree
      with Allstate’s . . . argument[.] . . .



                                         -10-
            As Allstate points out, the N o-Fault Act does not require
      insurance carriers to specifically list those categories of eligible
      injured persons. It requires insurance carriers to provide basic PIP
      and offer extended PIP benefits. The Act further certainly mandates
      coverage for those categories of eligible injured persons, including
      pedestrians and non-resident relative passengers, but it does not
      affirmatively require that they be enumerated in every policy. . . .

             Furthermore, Allstate’s policy explicitly stated it would
      provide benefits in accordance with the Act, which includes
      providing coverage for pedestrians and non-resident relative
      passengers. There is no allegation that Allstate refused to provide
      coverage for an eligible pedestrian or non-resident passenger. That
      is what distinguishes this case from those in which the court has
      required reformation. As Allstate points out, Brennan and our Clark
      decisions involved pedestrians who were expressly denied coverage
      by an insurance carrier. In such a case, reformation was required
      because it was absolutely clear that the injured person, a pedestrian,
      had been denied coverage to which he was entitled and that such
      coverage had clearly not been offered to the insured. The Pauls were
      offered extended PIP benefits covering persons eligible to receive
      benefits under the N o-Fault Act. They specifically chose to purchase
      only the basic PIP benefits. Reformation of the contract is not
      required where the claimed violation of the No-Fault Act was the
      failure to expressly enumerate all the parties eligible to receive PIP
      benefits, as opposed to the failure to offer those benefits and the
      subsequent failure to provide coverage.

Id. at 740-41 (footnote omitted).

      Like Hill, this case does not involve a third-party pedestrian or passenger

who is seeking PIP coverage for injuries sustained in an automobile accident with

a person who is insured by Allstate. Instead, M s. Campbell is the named insured

in the Allstate policy, and she is seeking enhanced PIP coverage for injuries that

she sustained in an automobile accident. In addition, just as in Hill,




                                         -11-
M s. Campbell’s policy expressly states that Allstate will pay PIP benefits in

accordance with Colorado’s No-Fault A ct, see Aplt. A ppx., Vol. I at 308-09,

313-14, and there is no evidence in the summary judgment record indicating that

Allstate has refused to pay basic or enhanced PIP benefits to an injured pedestrian

or non-resident relative passenger at any time since M s. Campbell purchased her

policy. Consequently, M s. Campbell’s attempts to distinguish Hill are to no

avail, and we must affirm the grant of summary judgment to Allstate.

      As another panel of this court just recently pointed out in Stickley v. State

Farm M ut. Auto. Ins. Co., __ F.3d __, 2007 W L 2938380 (10th Cir. Oct. 10,

2007), we would reach this same result even if the Allstate policy and renewal

documents could be construed as excluding enhanced PIP coverage for

pedestrians and non-resident relative passengers. As we explained in Stickley:

             To the extent Stickley is arguing the former pedestrian
      limitation automatically entitles him to the fullest amount of benefits
      possible for all categories of insureds, even those categories
      unrelated to the defect, he is incorrect. The plaintiff in Brennan was
      an injured pedestrian. 961 P.2d at 352. The driver had purchased
      enhanced PIP benefits, but the policy excluded pedestrians from
      receiving those benefits. Id. The Colorado Court of Appeals
      interpreted CAARA to require insurance companies to offer
      enhanced PIP benefits that covered pedestrians in addition to the
      other categories of people listed in § 707(1). Id. In the end, it
      agreed with the trial court that the policy should be reformed to
      provide enhanced benefits to pedestrians. Id. at 554. It did not,
      however, order reformation of the entire policy to provide enhanced
      PIP benefits for all categories of people.

            Thus, . . . reformation of [Stickley’s] insurance contract to
      include the highest possible PIP benefits for pedestrians would not

                                        -12-
      benefit him. Stickley was not a pedestrian and therefore would not
      receive additional benefits as a result of reformation based on that
      pedestrian limitation.

Id. at *7-8. Although, following Hill, we have construed the Allstate policy and

renewal documents as offering enhanced PIP coverage for all persons eligible to

receive such benefits under the No-Fault A ct, see Hill, 479 F.3d at 740-41, the

reasoning in Stickley is equally applicable here since M s. Campbell is neither a

pedestrian nor a non-resident relative passenger.

      W e note that the parties have devoted a good portion of their arguments to

our unpublished decision in Johnson v. Hartford Underwriters Ins. Co., 2007 W L

1830750 (10th Cir. June 27, 2007). W e also note that, in a letter to this court

dated September 18, 2007, M s. Campbell argues that our recent decision in Reid

“is expressly contrary to the holding in Clark v. State Farm M utual Auto

Insurance Com pany, 433 F.3d 703, 710 (10th Cir. 2005) (‘the type of policy

offered to M rs. M adrid does not satisfy subsection 710(2)(a) of CAARA’), and

several state law decisions.” N either Johnson nor Reid dictate a different result in

this case than the one we have reached following Hill. In fact, the opposite is

true as both cases state, as a general proposition, that the focus of our inquiry in

cases such as this one must be on the offer of enhanced PIP coverage, and not on

the coverage term s in the underlying policy, and this approach would appear to

eliminate altogether M s. Campbell’s argument that the policy terms here did not

comply with Colorado law. See Johnson, 2007 W L 1830750, at *2; Reid,

                                         -13-
2007 W L 2405254, at *3. W e also reject M s. Campbell’s assertion that Reid is

inconsistent with our Clark decisions and the Colorado Court of A ppeals’

decision in Brennan. As fully explained by the panel in Hill, those cases are

distinguishable from the situation in this case. See Hill, 479 F.3d at 740-41.

      Finally, our disposition of this case is likewise not affected by the Colorado

Court of Appeals’ recent decision in M unger, 2007 W L 2003001, at *3-4

(applying Parfrey and holding that two written statements sent by insurer to

insured did not provide adequate offer of enhanced PIP coverage for purposes of

No-Fault Act). To the contrary, we agree with Allstate that the holding in

M unger is not relevant to this case. As Allstate has pointed out, M unger involved

only “two one-line mailings regarding extended PIP coverage” whereas this case

involved “a face-to-face meeting, a PIP D isclosure Form that broke down each

extended PIP option in a comprehensible chart format, a policy that devoted eight

pages to explaining the different extended PIP coverage options available for

purchase, Form X67009 mailed to Plaintiff at least twice, and Form X5188 mailed

to Plaintiff at least three times.” Allstate’s Reply in Support of M otion for

Attorneys’ Fees, Double Costs, and Sanctions at 7 (emphasis removed).

                                  C ON CLU SIO N

      For the reasons set forth herein, the judgment of the district court is

AFFIRM ED. Although we have determined that M s. Campbell’s claims

ultimately fail under Hill, we agree with M s. Campbell that “[t]here is nothing to

                                         -14-
indicate that [her] pleadings in this Court were frivolous or violated any

applicable rules or statute. Rather, [she] has made a good faith attempt to enforce

her legal rights in the face of a rapidly changing legal landscape, addressing the

uncertainties and conflicts that have arisen with recent decisions.” A ppellant’s

Response to Allstate’s M otion for Attorneys’ Fees, Double Costs, and Sanctions

at 2. W e therefore D EN Y Allstate’s M otion for Attorneys’ Fees, Double Costs,

and Sanctions. Because: (1) Hill decided the question of state law that

M s. Campbell wants certified to the Colorado Supreme Court; (2) we are bound

by the precedent established by the panel of this court that decided Hill; and

(3) there has been no intervening state court decisions calling Hill into question,

we D EN Y M s. Campbell’s M otion for Certification of a Question of State Law.

See Wankier v. Crown Equip. Corp., 353 F.3d 862, 867 (10th Cir. 2003)

(“Follow ing the doctrine of stare decisis, one panel of this court must follow a

prior panel’s interpretation of state law, absent a supervening declaration to the

contrary by that state’s courts or an intervening change in the state’s law.”)

(quotation omitted).

                                                    Entered for the Court


                                                    W illiam J. Holloway, Jr.
                                                    Circuit Judge




                                         -15-
