                                                                      FILED
                                                          United States Court of Appeals
                                 PUBLISH                          Tenth Circuit

               UNITED STATES COURT OF APPEALS                   March 17, 2020

                                                             Christopher M. Wolpert
                      FOR THE TENTH CIRCUIT                      Clerk of Court
                      _________________________________

BRENDA SANDOVAL,

       Plaintiff - Appellant/Cross
       Appellee,

v.                                             Nos. 19-1047 & 19-1164

UNUM LIFE INSURANCE
COMPANY OF AMERICA,
a/k/a Unum,

       Defendant - Appellee/Cross
       Appellant.
                     _________________________________

     APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE DISTRICT OF COLORADO
             ( D.C. No. 1:17-CV-00644-WJM-KMT )
                  ______________________________

Joseph M. Gorman, Shakeshaft & Gorman, Colorado Springs, Colorado
(Kenneth J. Shakeshaft with him on the briefs), for Plaintiff-
Appellant/Cross Appellee.

Kenneth F. Rossman, IV, Lewis Roca Rothgerber Christie LLP, Denver,
Colorado (Stephen M. Bressler, Lewis Roca Rothgerber Christie LLP,
Phoenix, Arizona, with him on the briefs), for Defendant-Appellee/Cross
Appellant.
                   _________________________________

Before TYMKOVICH, Chief Judge, BACHARACH, and CARSON,
Circuit Judges.
                _________________________________

BACHARACH, Circuit Judge.
               _________________________________
      This suit grew out of an insurance policy that protected against

disabilities. The insured (Ms. Brenda Sandoval) submitted a claim to her

insurer, Unum Life Insurance Company of America, which initially paid

benefits but then terminated them. The termination of benefits led Ms.

Sandoval to sue Unum for

           a common-law tort (bad faith breach of insurance contract),

           a statutory tort (unreasonable conduct under Colo. Rev. Stat.
            § 10-3-1115 to 1116), and

           breach of contract.

      The district court granted Unum’s motion for partial summary

judgment on the tort claims. The contract claim went to trial, where the

jury rendered a verdict for Ms. Sandoval. The district court later denied

Unum’s motion for judgment as a matter of law. Ms. Sandoval appeals the

grant of Unum’s motion for partial summary judgment, and Unum cross-

appeals the denial of its motion for judgment as a matter of law.

      We affirm the award of partial summary judgment on the tort claims

because Unum conducted a reasonable investigation. On the contract claim,

we also affirm the denial of Unum’s motion for judgment as a matter of

law. The policy contained two alternative tests for a disability, and the

evidence permitted a reasonable finding that Ms. Sandoval had satisfied at

least one of these definitions. The district court thus did not err in denying

Unum’s motion for judgment as a matter of law.

                                      2
1.    Unum issued a long-term disability policy to Ms. Sandoval.

      Under the insurance policy, Ms. Sandoval was entitled to benefits if

she incurred a disability. The policy provided two alternative definitions of

a disability:

      1.    [Ms. Sandoval is] unable to perform the material and
            substantial duties of [her] regular occupation and [is] not
            working in [her] regular occupation or any other
            occupation

      or,

      2.    [She is] unable to perform one or more of the material and
            substantial duties of [her] regular occupation, and [she
            has] a 20% or more loss in [her] indexed monthly earnings
            while working in [her] regular occupation or in any
            occupation.

Appellant’s App’x at 358 (emphasis omitted). But even if she satisfied one

of these definitions, Ms. Sandoval would be considered disabled only if

she remained “under [the] regular care of a physician.” Id.

2.    Unum awarded disability benefits but terminated them roughly
      three months later.

      While working as a training supervisor, Ms. Sandoval had surgery

because of pain in her neck and arm. The surgery temporarily relieved Ms.

Sandoval’s pain, and she returned to work as a training supervisor. But the

pain resumed, and she had a second surgery. The surgeon opined that Ms.

Sandoval could not return to work as a training supervisor because she

could sit only briefly before suffering substantial pain.



                                      3
     Ms. Sandoval submitted an insurance claim to Unum, asserting a

disability. Unum awarded disability benefits based on the surgeon’s

opinion, but then asked two physicians to review Ms. Sandoval’s medical

records. Both physicians opined that Ms. Sandoval could return to work,

and Unum terminated the insurance benefits.

     Ms. Sandoval requested reconsideration of the claim, relying on a

new statement from her surgeon, a report from a functional capacity

examination, and a vocational assessment. To address the request for

reconsideration, Unum consulted an internist. Like the other two

consulting physicians, the internist opined that Ms. Sandoval could return

to work. So Unum adhered to its initial decision to deny the claim.

3.   The district court properly granted partial summary judgment to
     Unum on the tort causes of action.

     We affirm the district court’s award of summary judgment to Unum

on the causes of action for a common-law tort and a statutory tort.

     3.1   We engage in de novo review of the district court’s grant of
           partial summary judgment, applying Colorado law as to an
           insurer’s duties.

     Ms. Sandoval challenges the district court’s grant of summary

judgment to Unum on her tort causes of action. To consider these

challenges, we engage in de novo review, applying the same standard for

summary judgment that applied in district court. See Universal

Underwriters Ins. Co. v. Winton, 818 F.3d 1103, 1105 (10th Cir. 2016).


                                     4
This standard requires us to view the evidence and all reasonable

inferences favorably to Ms. Sandoval. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986). Summary judgment is warranted only in the absence

of a “genuine dispute as to any material fact” and the defendants’

entitlement “to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

     Ms. Sandoval’s tort causes of action arise under Colorado law, which

requires an insurer to treat an insured with good faith. Am. Family Mut.

Ins. Co. v. Allen, 102 P.3d 333, 342 (Colo. 2004) (en banc). If this duty is

breached, the insurer can incur tort liability. Goodson v. Am. Standard Ins.

Co. of Wis., 89 P.3d 409, 414 (Colo. 2004) (en banc).

     To prevail on the cause of action for a common-law tort, Ms.

Sandoval must show that Unum (1) acted unreasonably and (2) knew or

recklessly disregarded the unreasonableness of its conduct. See Travelers

Ins. Co. v. Savio, 706 P.2d 1258, 1275 (Colo. 1985) (en banc). For the

statutory tort, Ms. Sandoval must show that Unum unreasonably delayed or

denied payment of benefits, but need not show knowing or reckless

conduct. Colo. Rev. Stat. § 10-3-1115(1)(a). The denial of benefits was

unreasonable if Unum refused to pay “a covered benefit without a

reasonable basis for that action.” Colo Rev. Stat. § 10-3-1115(2).




                                      5
      3.2   Because Unum conducted a reasonable investigation before
            denying Ms. Sandoval’s claim, the district court properly
            granted partial summary judgment to Unum on the tort
            causes of action.

      Ms. Sandoval argues that the district court erred in granting summary

judgment to Unum on the tort causes of action because a rational factfinder

could justifiably infer that Unum had acted unreasonably in investigating

the claim. 1 For this argument, Ms. Sandoval points to Unum’s

           disagreement with the opinion of her treating physician, an
            orthopedic surgeon who had opined that Ms. Sandoval could
            not work as a training supervisor because of chronic pain,

           reliance on the opinions of two consulting physicians who had
            disagreed with the assessment of Ms. Sandoval’s treating
            physician without conducting their own examinations, and

           reliance on an internist who allegedly lacked qualifications to
            assess a disability and disregarded objective data.

Ms. Sandoval also relies on an affidavit by an expert witness, who opined

that Unum’s investigation was unreasonable.




1
       Unum argues that the claim was fairly debatable. The existence of a
fairly debatable claim may bear on the reasonableness of the insurer’s
conduct. Etherton v. Owners Ins. Co., 829 F.3d 1209, 1226–27 (10th Cir.
2016) (applying Colorado law). Ms. Sandoval does not question the
existence of a fairly debatable claim. She instead contends that the district
court erroneously treated the existence of a fairly debatable claim as fatal
to her tort causes of action. We disagree with this interpretation of the
district court’s ruling, for the court acknowledged that the existence of a
fairly debatable claim was not “outcome determinative as a matter of law”
or “the beginning and the end of the analysis.” Appellant’s App’x at 485–
86.

                                      6
      In her reply brief, Ms. Sandoval contends that her tort causes of

action focus on Unum’s denial of her request for reconsideration. But in

the district court proceedings and in her opening appellate brief, Ms.

Sandoval also challenged Unum’s initial decision to terminate benefits. For

example, Ms. Sandoval alleged in the complaint that Unum had failed to

conduct a reasonable investigation and had used non-examining physicians

to make medical determinations. See Appellant’s App’x at 39. Ms.

Sandoval stuck to this allegation when responding to Unum’s motion for

partial summary judgment, again addressing the reasonableness of the

initial decision to deny the claim. See id. at 380 (arguing that Ms.

Sandoval had “shown [Unum] acted unreasonably by not doing a thorough

investigation, failing to resolve conflicting opinions and violating their

own policies contained in the claims manual”). And in her opening brief on

appeal, Ms. Sandoval again addressed the initial denial of the claim,

invoking expert testimony that “[Unum’s] unreasonable actions [had]

started with its first termination of [Ms. Sandoval’s] disability claim.”

Appellant’s Opening Br. at 16.

      Given Ms. Sandoval’s allegations in the complaint and briefing prior

to her reply brief, we consider Unum’s investigation as to both the initial




                                      7
claim and the request for reconsideration. We conclude that the totality of

the investigation was reasonable as a matter of law. 2

      Unum’s disagreement with Ms. Sandoval’s surgeon does not suggest

that the investigation was unreasonable. Unum’s claims manual calls for

deference to treating physicians and authorizes Unum to contact treating

physicians if a reason exists to question their opinions. But Unum tried

twice to contact Ms. Sandoval’s surgeon and was rebuffed both times. 3

      On top of its efforts to contact the surgeon, Unum obtained written

information from Ms. Sandoval, interviewed her, reviewed her medical

records, and asked an occupational physician to review these records. The

occupational physician conducted this review and opined that Ms. Sandoval

could return to her job as a training supervisor if the job could be

modified.




2
     On the cause of action for a common-law tort, Unum argues that Ms.
Sandoval failed to present evidence of intentional or reckless conduct. We
need not address this argument.
3
       In her reply brief, Ms. Sandoval argues that after she sought
reconsideration, Unum should have tried again to reach the surgeon. Ms.
Sandoval had not made this argument until her reply brief, which was too
late. See Anderson v. Spirit Aerosystems Holdings, Inc., 827 F.3d 1229,
1236 n.2 (10th Cir. 2016) (holding that addition of an argument in the
reply brief was “too late”). In any event, no factfinder could legitimately
find that Unum acted unreasonably by forgoing a third effort to contact the
surgeon after he had declined two prior requests.

                                      8
      The occupational physician also recommended that Unum consult

with another physician. Unum followed that recommendation and consulted

an orthopedic surgeon. He too opined that Ms. Sandoval could work as a

training supervisor, noting that

           her motor strength and cervical motion were normal,

           she had been taking only over-the-counter anti-inflammatories,
            and

           she had been using a computer, working as a hairdresser,
            driving, and performing household chores.

Unum evaluated all of the available information and denied the disability

claim.

      When Ms. Sandoval asked for reconsideration, Unum consulted a

third physician, an internist. The internist reviewed Ms. Sandoval’s

medical records and the report of a functional capacity evaluation, opining

that the information did not support the disability claim because

           Ms. Sandoval had not been using pain medication or other
            treatments appropriate for severe, chronic pain,

           the physical examinations had not consistently shown
            weakness, atrophy, or sensory loss,

           the x-rays had shown improvement after the surgery, and

           the functional capacity evaluation had not shown full effort on
            some tasks.

In discussing the functional capacity evaluation, the internist stated that

the report did not reflect Ms. Sandoval’s heart rates at the start and end of

                                      9
each activity. This omission was considered significant because an

elevation in heart rate could show that Ms. Sandoval was giving her full

effort on each task.

      Ms. Sandoval disagrees with the internist’s assessment, pointing to

             the examiner’s conclusion that Ms. Sandoval had exerted “full
              effort” and

             the report’s reference to the starting and ending heart rates for
              two of the tasks (isoinertial lift and carrying).

See Appellant’s App’x at 192. But Unum could also reasonably rely on the

internist’s assessment. The functional capacity report didn’t reflect the

starting and ending heart rates for most of the tasks, and the internist could

reasonably conclude that the heart rates would reflect the level of Ms.

Sandoval’s effort.

      Ms. Sandoval also challenges the internist’s analysis of one of the

tests (the Purdue Pegboard Test) used to evaluate functional capacity. This

test measured Ms. Sandoval’s ability to use her hands in a coordinated and

efficient manner. Ms. Sandoval’s scores for this test fell below the first

percentile for each hand, for both hands together, and for a task requiring

assembly. In assessing these scores, the internist observed that Ms.

Sandoval’s medical records “d[id] not reflect pathology of the hands or

upper extremities that would explain these severely limited percentages.”

Id. at 251.

      Challenging this observation, Ms. Sandoval argues that
                                        10
          the functional capacity report reflects successful completion of
           the Purdue Pegboard Test and

          her successful completion of the test shows the validity of the
           poor results on the four listed tasks.

Ms. Sandoval did not make this argument in district court or urge plain

error review, so we consider the new argument waived. See McKissick v.

Yuen, 618 F.3d 1177, 1189 (10th Cir. 2010) (holding that an appellant’s

failure to explain “ how [arguments] survive the plain error standard waives

the arguments in this court” (emphasis omitted)).

     Even if Ms. Sandoval had not waived this argument, we would have

rejected it. Industry standards supply the guidepost to assess the

reasonableness of the insurer’s conduct. Goodson v. Am. Standard Ins. Co.

of Wis., 89 P.3d 409, 415 (Colo. 2004) (en banc); see p. 12, below. And

Ms. Sandoval didn’t present evidence that the internist had failed to satisfy

industry standards. Given the lack of such evidence, Unum could

reasonably rely on the internist’s assessment of the results of the Purdue

Pegboard Test.

     Ms. Sandoval also criticizes the internist’s disregard of the

vocational evaluation, which was based on the opinions of Ms. Sandoval’s

surgeon. But as discussed above, two consulting physicians had already

considered the surgeon’s opinions and reported to Unum that Ms. Sandoval

could return to work. Given these reports, Unum could reasonably conclude


                                     11
that the vocational evaluation did not warrant reconsideration of the

disability claim.

      Ms. Sandoval not only alleges the internist’s disregard of evidence

but also questions his qualifications to assess an alleged disability. As Ms.

Sandoval points out, the internist was neither a surgeon nor an expert in

pain management. But the internist’s lack of expertise in surgery or pain

management does not render his opinions meaningless. The internist

explained that he had seen many patients who had undergone surgeries like

Ms. Sandoval’s and studied with a physician who was well known for

treating chronic pain. Given this explanation, Unum could reasonably rely

on the internist’s opinions.

      Finally, Ms. Sandoval relies on an affidavit by her expert witness.

The expert witness

           stated that Unum had unreasonably relied on the opinions of
            physicians who had not conducted their own examinations and

           challenged Unum’s reliance on Ms. Sandoval’s decision to
            forgo narcotic medications and her score of 5/5 on measures of
            strength during clinical examinations.

These arguments are not persuasive. The reasonableness of an insurer’s

investigation is measured by industry standards. Goodson v. Am. Standard

Ins. Co. of Wis., 89 P.3d 409, 415 (Colo. 2004) (en banc); see p. 11, above.

But the expert witness did not identify any industry standards requiring

Unum’s consulting physicians to examine Ms. Sandoval before opining


                                     12
about her ability to work. The expert witness’s opinions thus do not create

material factual issues on the causes of action for common-law and

statutory torts. See Zolman v. Pinnacol Assurance, 261 P.3d 490, 500

(Colo. App. 2011) (“[The expert’s] affidavit and report simply state his

conclusory opinions that [the insurer] acted in bad faith without

establishing any genuine issue of material fact.”).

      The expert witness’s discussion of Ms. Sandoval’s avoidance of

narcotic medications and her strength score of 5/5 does not suggest that

Unum acted unreasonably. Unum consulted an internist, who noted the

existence of many alternative treatments for pain, such as “ongoing or

consistent treatment with physical therapy, occupational therapy,

acupuncture, biofeedback, cognitive behavioral therapy, or aqua therapy

(all commonly used minimally invasive pain relief techniques), . . .

injection treatments, . . . [or] a spinal cord stimulator.” Appellant’s App’x

at 245. The internist saw no indication that Ms. Sandoval had tried any of

these alternative treatments. Id. Given the apparent failure to try any

alternative treatments, Unum could reasonably conclude that Ms. Sandoval

was not disabled despite the expert witness’s opinion to the contrary.

                                    * * *

      Because Unum reasonably investigated Ms. Sandoval’s claim, the

district court properly granted partial summary judgment to Unum on the

tort causes of action.

                                     13
4.    Because the jury could reasonably find that Ms. Sandoval was
      disabled, the district court properly denied Unum’s motion for
      judgment as a matter of law on the cause of action for breach of
      contract.

      In cross-appealing, Unum challenges the district court’s denial of its

motion for judgment as a matter of law on Ms. Sandoval’s cause of action

for breach of contract.

      Our review is de novo. See Bill Barrett Corp. v. YMC Royalty Co.,

918 F.3d 760, 766 (10th Cir. 2019) (per curiam). In engaging in de novo

review, we consider judgment as a matter of law to be appropriate “only if

the evidence points but one way and is susceptible to no reasonable

inferences which may support the nonmoving party’s position.” In re Cox

Enters., Inc., 871 F.3d 1093, 1096 (10th Cir. 2017) (quoting Auraria

Student Hous. at the Regency, LLC v. Campus Vill. Apartments, 843 F.3d

1225, 1247 (10th Cir. 2016)).

      Unum argues that Ms. Sandoval was not disabled under the policy’s

first definition of a disability: “[She is] unable to perform the material and

substantial duties of [her] regular occupation and [she is] not working in

[her] regular occupation or any other occupation . . . .” Appellant’s App’x

at 358 (emphasis omitted); see Part 1, above. Unum maintains that even

after Ms. Sandoval stopped working as a training supervisor, she continued

to work as a cosmetologist, which qualified as “any other occupation”

under the policy.


                                      14
      We need not address Unum’s arguments about the first definition of a

disability. In denying Unum’s motion, the district court also concluded that

Ms. Sandoval was disabled under the second definition: “[She is] unable to

perform one or more of the material and substantial duties of [her] regular

occupation, and [she has] a 20% or more loss in [her] indexed monthly

earnings while working in [her] regular occupation or in any occupation.”

Appellant’s App’x at 358 (emphasis omitted); see Part 1, above.

      In its opening brief on the cross-appeal, Unum does not argue that

the district court erred in concluding that Ms. Sandoval was disabled under

the second definition. Unum has thus waived its right to appeal the district

court’s ruling on that ground. See Rivero v. Bd. of Regents, ___ F.3d ___,

No. 18–2158, slip op. at 16 (10th Cir. Feb. 24, 2020) (“If the district court

states multiple alternative grounds for its ruling and the appellant does not

challenge all these grounds in the opening brief, then we may affirm the

ruling.”). 4

      Even if Unum had not waived its right to appeal this ruling, Unum

has not shown an error. The jury could reasonably conclude that Ms.




4
       Unum does raise this argument in the reply brief, but this was too
late. See Anderson v. Spirit Aerosystems Holdings, Inc., 827 F.3d 1229,
1236 n.2 (10th Cir. 2016) (holding that addition of an argument in the
reply brief was “too late”).

                                     15
Sandoval had satisfied the second definition of a “disability” because her

earnings dipped by more than the 20% benchmark in the policy.

      The jury could also reasonably find that Ms. Sandoval had remained

“under the regular care of a physician,” which was required for benefits.

Appellant’s App’x at 358. The policy states that “regular care” requires the

insured to

             personally visit a physician as frequently as is medically
              required according to generally accepted medical
              standards, to effectively manage and treat [her] disabling
              condition(s) and

             [receive] the most appropriate treatment and care which
              conforms with generally accepted medical standards, for
              [her] disabling condition(s) by a physician whose specialty
              or experience is the most appropriate for [her] disabling
              condition(s), according to generally accepted medical
              standards.

Id. at 359.

      Unum argues that Ms. Sandoval was not “under the regular care of a

physician” because she stopped seeing her surgeon about a year after her

second surgery. But the jury could reject this argument based on the policy

language and the surgeon’s testimony. The policy states that “regular care”

involves seeing a physician “as frequently as is medically required” for

“the most appropriate treatment and care which conforms with generally

accepted medical standards.” Id. And the surgeon testified that he hadn’t

discharged Ms. Sandoval as a patient, so she could return whenever

needed. Appellee’s Supp. App’x at 206.
                                       16
     Given this policy language and testimony, the jury could reasonably

find that Ms. Sandoval had remained under the surgeon’s “regular care.”

See Heller v. Equitable Life Assur. Soc’y of U.S., 833 F.2d 1253, 1257 (7th

Cir. 1987) (concluding that the policy term “under the regular care and

attendance of a physician” means “that the insured is obligated to

periodically consult and be examined by his or her treating physician at

intervals to be determined by the physician”); Cont’l Cas. Co v. Pfeifer,

229 A.2d 422, 426 (Md. 1967) (holding that the evidence supported a

jury’s finding that an insured was under “the regular care and attendance

of a physician” when doctors concluded that the insured’s symptoms “were

unchanged and were unlikely to change”).

5.   Conclusion

     We affirm the district court’s rulings

          granting Unum’s motion for partial summary judgment on Ms.
           Sandoval’s causes of action for common-law and statutory torts
           and

          denying Unum’s motion for judgment as a matter of law on Ms.
           Sandoval’s cause of action for breach of contract.




                                     17
