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

                               FOR THE TENTH CIRCUIT                           June 14, 2019
                           _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
    MIRIAM ZEVALLOS,

         Plaintiff - Appellant,
                                                                 No. 18-1150
    v.                                               (D.C. No. 1:17-CV-00189-RM-KHR)
                                                                  (D. Colo.)
    ALLSTATE PROPERTY AND
    CASUALTY COMPANY,

         Defendant - Appellee.
                        _________________________________

                               ORDER AND JUDGMENT*
                           _________________________________

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

         Plaintiff Miriam Zevallos appeals the district court’s grant of judgment in favor of

Defendant Allstate Property and Casualty Insurance Company. The sole issue before us

is whether Colorado public policy renders void a settlement agreement entered into by

Plaintiff and Allstate. This issue was recently resolved by our decision in McCracken v.

Progressive Direct Insurance Co., 896 F.3d 1166 (10th Cir. 2018). Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.


*
  After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist in 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 This order and judgment is not binding precedent, except under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 with Fed. R. App. P. 32.1 and 10th Cir. R.
32.1.
        The relevant facts are not disputed on appeal. On August 20, 2012, Plaintiff was

injured in an automobile accident. She was insured under a policy issued by Allstate that

provided two types of coverage relevant to this dispute: $5,000 coverage for Medical

Payments (MedPay) and $50,000-per-person/$100,000-per-accident coverage for

Uninsured and Underinsured Motorist (UM/UIM) benefits. Allstate paid Plaintiff $5,000

under her MedPay coverage; and she reached a $100,000 policy-limit settlement with the

tortfeasor’s insurer. She then sought to recover from Allstate under her UM/UIM

coverage.

       On June 11, 2014, Allstate sent Plaintiff a letter offering to settle the UM/UIM

benefits claim. The letter stated that Allstate had calculated Plaintiff’s total damages as

$96,737 ($68,737 in medical expenses plus $28,000 in noneconomic damages) and

evaluated her claim at $91,737 after subtracting the $5,000 previously paid under the

MedPay coverage. The letter explained that “[b]ecause of the non-duplication of benefits

clause, the specials were reduced by $5,000 that was paid under Medical Payments

coverage.” Aplt. App. at 91. Allstate concluded that Plaintiff’s evaluation of her claim

was “within the amount settled by the underlying $100,000” and therefore offered her

“$1500 as a compromised offer of settlement.” Id. Ultimately, the parties executed a

settlement agreement on September 26, 2014, with Allstate paying Plaintiff $2,700.00 in

UM/UIM benefits and Plaintiff discharging Allstate of all liability under the UM/UIM

coverage.

       More than two years later, the Colorado Supreme Court held in Calderon v.

American Family Mutual Insurance Co., 383 P.3d 676, 679–80 (Colo. 2016), that the


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setoff prohibition of Colo. Rev. Stat. § 10-4-609(1)(c) (2016) bars insurers from

subtracting MedPay benefits from their UM/UIM liability. Four days after that decision,

Plaintiff filed a putative class action against Allstate in Colorado state court alleging

breach of contract and seeking damages and a declaratory judgment on the ground that

the Allstate companies had unlawfully “reduce[d] amounts paid to their insureds under

their [UM/UIM] coverages by setoffs from their [MedPay] coverages under their

respective automobile policies.” Aplt. App. at 26. Allstate removed the case to the

United States District Court for the District of Colorado. Allstate’s answer attached

copies of the insurance policy, its settlement-offer letter, and the settlement and release

executed by Plaintiff.

       Allstate moved for judgment on the pleadings under Fed. R. Civ. P. 12(c). The

district court granted the motion, ruling that Plaintiff’s claim was barred by the release in

her settlement agreement, which was not contrary to Colorado public policy.1



1
  We question the propriety of the district court’s resolving this case under
Fed. R. Civ. P. 12(c). “A motion for judgment on the pleadings under Rule 12(c) is
treated as a motion to dismiss under Rule 12(b)(6).” Atl. Richfield Co. v. Farm Credit
Bank of Wichita, 226 F.3d 1138, 1160 (10th Cir. 2000). Under both rules we examine
whether the complaint’s allegations are “enough that, if assumed to be true, the plaintiff
plausibly (not just speculatively) has a claim for relief.” Corder v. Lewis Palmer Sch.
Dist. No. 38, 566 F.3d 1219, 1224 (10th Cir. 2009); see id. at 1223. In certain
circumstances, a court ruling on a motion to dismiss under Rule 12(b)(6) or 12(c) may
consider other documents or facts outside the complaint. See Gee v. Pacheco, 627 F.3d
1178, 1186 (10th Cir. 2010). For example, “if a plaintiff does not incorporate by
reference or attach a document to its complaint, but the document is referred to in the
complaint and is central to the plaintiff’s claim, a defendant may submit an indisputably
authentic copy to the court to be considered on a motion to dismiss.” GFF Corp. v.
Associated Wholesale Grocers, 130 F. 3d 1381, 1384 (10th Cir. 1997). Under this
exception to the general rule, it was proper for the motion to dismiss by Allstate to rely

                                              3
       Plaintiff does not dispute that she voluntarily signed the release or that the matter

before this court falls within the scope of the release. Rather, she asserts that Allstate

reduced the amount of UM/UIM benefits it agreed to pay her in the settlement by

offsetting the amount already paid in MedPay benefits, thus rendering the settlement

agreement contrary to public policy, as determined in Calderon. She contends that

“Insurers like Allstate cannot use releases to accomplish what the law forbids, and illegal

agreements improperly diluting UM/UIM coverage are unenforceable.” Aplt. Br. at 4–5.

       But we rejected an identical argument in McCracken, 896 F.3d 1166. In that case

the plaintiffs held insurance policies that included MedPay coverage and UM/UIM

coverage, and they received MedPay benefits after being injured in motor-vehicle

collisions. See id. at 1169–70. Then, before Calderon was handed down, they




on its settlement-offer letter of June 11, 2014, because the letter was referenced and relied
on in Plaintiff’s complaint.
        But the district court ultimately relied on the settlement agreement attached to
Allstate’s answer to the complaint. This was not proper in resolving a motion under
Rule 12(c). The complaint made no mention of the settlement agreement and that
agreement was not “central” to Plaintiff’s claim. Id. Accord and satisfaction, release,
and waiver are affirmative defenses, not part of the claim. See Fed. R. Civ. P. 8(c)(1).
Such a defense must be pleaded by the defendant, and “it is proper to dismiss a claim on
the pleadings based on an affirmative defense . . . only when the complaint itself admits
all the elements of the affirmative defense by alleging the factual basis for those
elements.” Fernandez v. Clean House, LLC, 883 F.3d 1296, 1299 (10th Cir. 2018).
        Nevertheless, on appeal Plaintiff does not challenge the facts relied upon by the
district court and she does not argue that Allstate’s assertion of an affirmative defense
precluded judgment on the pleadings. Accordingly, this issue is waived. See Bronson v.
Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[T]he omission of an issue in an
opening brief generally forfeits appellate consideration of that issue.”).




                                              4
discharged all their claims against their insurers in settlement agreements where the

insurers offset the MedPay payments in calculating the settlement amounts under the

UM/UIM coverage. See id. Relying in large part on the decision of the Colorado Court

of Appeals in Arline v. American Family Mutual Insurance Co., 431 P.3d 670 (Colo.

App. 2018), we held that the releases were not contrary to public policy and were

enforceable. See McCracken, 896 F.3d at 1172–75.

       We had filed our opinion in McCracken by the time Plaintiff submitted her reply

brief in this case. That brief noted that a petition for certiorari with the Colorado

Supreme Court was pending in Arline, and she made the reasonable request that we

withhold decision until the high court acted on the petition. It has now denied the

petition. See Arline v. American Family Mut. Ins. Co., No. 18SC511, 2018 WL 6497033

(Colo. Dec. 8, 2018).

       Because the relevant facts here are indistinguishable from those in McCracken, we

are bound by that precedent and accordingly reject Plaintiff’s argument.

       We AFFIRM the judgment below.


                                               Entered for the Court


                                               Harris L Hartz
                                               Circuit Judge




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