                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         December 9, 2005
                             FOR THE TENTH CIRCUIT
                                                                           Clerk of Court

    STEVEN R. JOHNSON,

                 Plaintiff-Appellant,

     v.                                                  No. 04-1550
                                                 (D.C. No. 02-MK-2252 (OES))
    STATE FARM MUTUAL                                      (D. Colo.)
    AUTOMOBILE INSURANCE
    COMPANY, an Illinois corporation,

                 Defendant-Appellee.


                             ORDER AND JUDGMENT           *




Before LUCERO , ANDERSON , and BRORBY , Circuit Judges.



          Steven R. Johnson, a passenger injured in a motor vehicle accident, sued

State Farm Mutual Automobile Insurance Company, which insured the owners of

the automobile in which he was riding. Alleging that State Farm had failed to

comply with a Colorado statute requiring insurance companies to offer



*
     The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
policyholders enhanced personal injury protection (“PIP”), Johnson, as a covered

person under the policy, sought reformation of the insurance contract to include

enhanced PIP benefits and payment of such benefits under the reformed contract.

See Thompson v. Budget Rent-A-Car Sys., Inc.      , 940 P.2d 987, 989 (Colo. App.

1996) (injured passenger can sue to reform insurance contract if the contract does

not comply with the statutory rule that insurers must offer enhanced PIP

coverage). He now appeals from the district court’s grant of summary judgment

in favor of State Farm. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and

AFFIRM .

      Johnson’s accident occurred on September 8, 1998, in an automobile driven

by Luke Wright with permission of the owners, George and Mimah Singh.

Johnson sought reimbursement for his medical expenses through State Farm, the

Singhs’ insurer. By July 2001, he had exhausted the basic PIP benefits provided

under the Singhs’ policy.

      At the time the Singhs purchased their policy, Colorado law required motor

vehicle owners to maintain minimum insurance coverage on their vehicles,

including no-fault PIP coverage. Colo. Rev. Stat. § 10-04-705;      Brennan v.

Farmers Alliance Mut. Ins. Co   ., 961 P.2d 550, 552 (Colo. App. 1998).   1
                                                                              The


1
      The Colorado Auto Accident Reparations Act was codified in Colo. Rev.
Stat. §§ 10-4-701 to 10-4-726, and repealed by Laws 1997, H.B. 97-1209, § 8,
                                                                   (continued...)

                                          -2-
mandatory minimum PIP coverage provided for amounts to be paid for reasonable

and necessary medical care, rehabilitative care, lost wages, and death benefits in

the event of an accident, without regard to fault. Colo. Rev. Stat. § 10-04-706(1).

Also, under Colo. Rev. Stat. § 10-4-710(2)(a), insurers were required “to offer the

named insured extended PIP benefits in exchange for higher premiums. These

extended PIP benefits do not place time or dollar limitations on medical expense

claims . . . .” Clark v. State Farm Mut. Auto. Ins. Co   ., 319 F.3d 1234, 1238

(10th Cir. 2003) (citations omitted).

       Johnson’s complaint alleged that State Farm had failed to offer enhanced

PIP benefits to the Singhs in accordance with section 710(2)(a). The parties filed

cross-motions for summary judgment on this issue. In support of its motion, State

Farm produced an affidavit from Jill Camp, the licensed staff agent who had met

personally with George Singh. The affidavit stated that Camp did not specifically

recall her contact with Singh, but provided evidence of her usual practices with

regard to offering enhanced PIP coverage.     2




1
 (...continued)
effective July 1, 2003.   See Colo. Rev. Stat. § 10-4-726 (effective July 1, 2003).
2
      State Farm also provided deposition testimony on the regular business
practices of Ken Wilyard, the independent contract agent who had instructed
Camp to conduct a meeting with the Singhs. Because Wilyard admitted that he
had not met with the Singhs himself, the district court disregarded his testimony.
State Farm makes no showing that the district’s evidentiary decision amounted to
an abuse of discretion. See Sports Racing Servs., Inc. v. Sports Car Club of Am.,
                                                                      (continued...)

                                            -3-
       Johnson could not locate the Singhs and therefore lacked any firsthand

knowledge of their discussions with State Farm representatives. Johnson did not

attempt to contradict Camp’s affidavit. Rather, he questioned the legal effect of

the information she provided to the Singhs.

       The district court determined that State Farm’s evidence was sufficient to

demonstrate that it had offered enhanced PIP benefits in compliance with section

710(2)(a). It therefore denied Johnson’s motion for summary judgment and

granted State Farm’s motion. Johnson now appeals the district court’s entry of

judgment in favor of State Farm.

       “We review a grant of summary judgment de novo, applying the same

standard as the district court.”   McKnight v. Kimberly Clark Corp.   , 149 F.3d

1125, 1128 (10th Cir. 1998). Under Fed. R. Civ. P. 56(c), summary judgment

should be entered by the district court “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if 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.”




2
 (...continued)
Inc. , 131 F.3d 874, 894 (10th Cir. 1997) (reviewing a district court’s decision to
exclude evidence at the summary judgment stage for abuse of discretion).
Therefore, we do not credit Wilyard’s testimony on appeal.

                                           -4-
       On appeal, the parties agree that State Farm would bear the ultimate burden

of persuasion at trial. Thus, State Farm is required to “support its motion with

credible evidence . . . that would entitle it to a directed verdict if not controverted

at trial.” Celotex Corp. v. Catrett , 477 U.S. 317, 331 (1986). “Such an affirmative

showing shifts the burden of production to the party opposing the motion and

requires that party . . . to produce evidentiary materials that demonstrate the

existence of a ‘genuine fact’ for trial.”   Id. at 331.

       In analyzing “the nature and scope of an insurer’s duty” under a similar

provision of Colorado insurance law, 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.”

Allstate Ins. Co. v. Parfrey , 830 P.2d 905, 913 (Colo. 1992) (discussing Colo. Rev.

Stat. § 10-4-609(b)(2), which requires the insurer to offer higher than the statutory

minimum in uninsured or underinsured motorist coverage).       3
                                                                   Parfrey explained the

proper test for analyzing whether an insurer performed its duty of notification:


3
       In its appeal brief, State Farm advocates against the application of the
Parfrey test and argues for a test that simply requires it to meet a “make
available” requirement. There is no indication in the record that this argument
was presented to the district court. Accordingly, it has not been taken into
consideration in our resolution of this appeal.  See In re Walker , 959 F.2d 894,
896 (10th Cir. 1992) (stating that ordinarily this court does not consider
arguments made for the first time on appeal).

                                             -5-
       In determining whether an insurer has fulfilled its statutory duty, a
       court may appropriately consider such factors as the clarity with
       which the purpose of . . . coverage was explained to the insured,
       whether the explanation was made orally or in writing, the specificity
       of the options made known to the insured, the price at which the
       different levels of . . . coverage could be purchased, and any other
       circumstances bearing on the adequacy and clarity of the notification
       and offer.

Id. at 913. “In the final analysis,” the sufficiency of the offer “must be resolved

under the totality of circumstances.”   Id. at 914.

       Camp’s affidavit indicates that she had a face-to-face meeting with George

Singh to review his coverage. Without specifically describing their discussion,

she related her customs and practices for review meetings. During such meetings,

she made policyholders aware of higher PIP limits, using a brochure she attached

to her affidavit. The brochure provided a short explanation of PIP benefits, along

with a chart showing the varying levels of available PIP coverage.    Camp also

routinely told policyholders that PIP covered both policyholders and passengers.

       Johnson argues on appeal that, under the    Parfrey test, State Farm’s evidence

was insufficient to show an adequate offer of enhanced PIP benefits. Specifically,

he asserts that Camp’s affidavit does not provide evidence that State Farm met two

of the Parfrey factors: (1) clear advice on the purpose of additional PIP coverage

and (2) the cost of such coverage. The district court dismissed these arguments,

stating:



                                            -6-
       No doubt . . . the Defendant could have presented more information
       to the Singhs concerning the costs and benefits of enhanced PIP
       coverage. However, the Parfrey analysis does not require an insurer
       to thoroughly address all of the conceivable situations in which
       enhanced PIP coverage might be desirable. Rather the law merely
       requires that the insured b[e] given enough information to advise the
       insured of the availability of coverage and permit a reasonably
       informed decision on whether to purchase it.

       The sample brochure describes the purpose of PIP coverage. Further, the

parties met in person, affording Singh the opportunity to ask Camp questions about

the policy.   See Parfrey , 830 P.2d at 914 n.5 (noting that most courts examining

the issue have found face-to-face negotiations to be particularly compelling

evidence). Although the lack of a discussion of the price of enhanced PIP

insurance is an important factor under the      Parfrey analysis, State Farm’s failure to

inform Singh about the specific cost does not in itself render the offer

commercially unreasonable. In a totality of the circumstances analysis, “[n]o

single factor is conclusive.”   Lambertsen v. Utah Dep’t. of Corr.    , 79 F.3d 1024,

1028 (10th Cir. 1996). The evidence of a face-to-face meeting where Singh

received a pamphlet explaining the different levels of PIP coverage is sufficient.

Had Singh been at all interested in purchasing enhanced PIP coverage after it was

explained to him by Camp, it would have been easy for him to determine the price

at which he could purchase the coverage. Under the totality of circumstances,

Camp’s affidavit demonstrates that State Farm made a commercially reasonable

offer of enhanced PIP benefits to the Singhs.

                                             -7-
      Thus, the burden shifted to Johnson to produce evidence demonstrating the

existence of a material fact for trial. Because Johnson did not come forward with

any evidence contradicting State Farm’s factual position, the district court properly

granted State Farm’s summary judgment motion.

      The judgment of the district court is     AFFIRMED .


                                                     Entered for the Court



                                                     Carlos F. Lucero
                                                     Circuit Judge




                                              -8-
