                                                                         FILED
                                                             United States Court of Appeals
                                        PUBLISH                      Tenth Circuit

                      UNITED STATES COURT OF APPEALS                July 24, 2018
                                                                Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                   Clerk of Court
                        _________________________________

BRENDA MCCRACKEN; CHRISTA
HECHT, individually and on behalf of all
others similarly situated,

      Plaintiffs - Appellants,

v.                                                    No. 17-1285

PROGRESSIVE DIRECT INSURANCE
COMPANY; PROGRESSIVE
PREFERRED INSURANCE COMPANY,

      Defendants - Appellees.

–––––––––––––––––––––––––––––––––––

JERRY ARCHULETA, individually and
on behalf of all others similarly situated,

      Plaintiff - Appellant,

v.
                                                      No. 17-1286
USAA CASUALTY INSURANCE
COMPANY; UNITED SERVICES
AUTOMOBILE ASSOCIATION,

      Defendants - Appellees.
                     _________________________________

                   Appeal from the United States District Court
                           for the District of Colorado
     (D.C. No. 1:17-CV-00114-CMA-STV) and (D.C. No. 1:17-CV-00191-RBJ)
                     _________________________________
Nelson A. Waneka, of Levin Sitcoff PC, Denver, Colorado (Bradley A. Levin and Susan
S. Minamizono, of Levin Sitcoff PC, Denver, Colorado, and Keith R. Scranton and
Patricia A. Meester, of Franklin D. Azar and Associates, P.C., Aurora, Colorado, with
him on the briefs), for Plaintiff-Appellants.

Casie D. Collignon (Sammantha J. Tillotson with her on the brief), of Baker & Hostetler
LLP, Denver, Colorado, for Progressive Direct Insurance Company and Progressive
Preferred Insurance Company, Defendants-Appellees.

Casie D. Collignon, of Baker & Hostetler LLP, Denver, Colorado (Michael Mulvaney,
Thomas Butler, and Taryn Hodinka, of Maynard Cooper & Gale, Birmingham, Alabama,
and Jon F. Sands and Marilyn S. Chappell, of Sweetbaum Sands Anderson PC, Denver,
Colorado, with her on the brief), for USAA Casualty Insurance Company and United
Services Automobile Association, Defendants-Appellees.
                        _________________________________

Before LUCERO, PHILLIPS, and MORITZ, Circuit Judges.
                  _________________________________

MORITZ, Circuit Judge.
                    _________________________________

      The plaintiffs in these consolidated appeals each settled a claim under their

automobile-insurance policies with the defendants. But now the plaintiffs maintain

that the defendants illegally reduced their settlement offers by taking into account

certain benefits they had previously paid the plaintiffs. The district courts dismissed

the plaintiffs’ putative class-action lawsuits after concluding the plaintiffs each

waived their rights to collect further damages from the defendants on their settled

claims.

      We reverse in part and remand to the district court with instructions to vacate

its judgment in favor of USAA Casualty Insurance Company because it lacked

jurisdiction to hear the claims against that defendant. Otherwise, we affirm.



                                            2
                                     Background

I.    Legal Background

      These cases involve the interplay between two categories of automobile

insurance that insurers must offer under Colorado law: uninsured/underinsured-

motorist (UM/UIM) coverage and medical payments (MedPay) coverage. See Colo.

Rev. Stat. §§ 10-4-609(1)(a), 10-4-635(1)(a). UM/UIM coverage insures the

policyholder for injuries caused by a third-party driver without sufficient insurance to

cover the policyholder’s injury. See Colo. Rev. Stat. § 10-4-609(1)(a), (4). MedPay

coverage insures the policyholder for any bodily injury “resulting from the

ownership, maintenance, or use of [a] motor vehicle,” regardless of fault.

§ 10-4-635(1)(a).

      In 2007, the Colorado legislature amended its insurance law to mandate that

“the amount of the coverage available” under UM/UIM policies “shall not be reduced

by a setoff from any other coverage, including” MedPay. 1 An Act Concerning the

Payment of Uninsured Motor Vehicle Insurance as Excess to Other Insurance, § 1,

2007 Colo. Legis. Serv. 1921, 1921 (2007) (codified at § 10-4-609(1)(c)). This

amendment initially caused some confusion. Focusing on the word “coverage” in

§ 10-4-609(1)(c), a number of Colorado courts held that the amendment only

prohibited insurers from taking a setoff from a UM/UIM claim if the setoff would


      1
        A setoff is “[a] debtor’s right to reduce the amount of a debt by any sum the
creditor owes the debtor.” Setoff, Black’s Law Dictionary (10th ed. 2014). Thus, in
this context, a setoff is an amount by which an insurer reduces a policyholder’s claim
to account for other benefits for which the policyholder must reimburse the insurer.
                                           3
effectively reduce the amount of coverage available. See, e.g., Carrion-Kozak v.

Alghamdi, No. 13CV92, slip op. at 2 (Arapahoe Cty., Colo. Dist. Ct. Dec. 13, 2013)

(“While [§ 10-4-609(1)(c)] prohibits a setoff which reduces coverage, it does not

prohibit a setoff which merely adjusts the amount an insurer must pay to prevent a

double recovery.”); Willyard v. Am. Family Mut. Ins. Co., No. 11CV931, slip op. at 4

(Boulder Cty., Colo. Dist. Ct. May 8, 2012) (upholding insurance contract that

“allows for a setoff of the amount paid” in MedPay but “does not affect the coverage

available under either the [MedPay] or the [UM/UIM] benefits policy”). In other

words, these courts held that if a policyholder’s UM/UIM claim exceeded the

maximum amount of coverage available under the policy, then the insurer owed the

maximum coverage amount without a setoff because taking a setoff in such a

situation would effectively reduce the maximum amount of coverage available under

the UM/UIM policy. See Carrion-Kozak, slip op. at 3; Willyard, slip op. at 4. But in

cases in which the policyholder’s claims were for amounts less than their coverage

limits, these courts held that a setoff was proper to prevent double recovery. See

Carrion-Kozak, slip op. at 3; Willyard, slip op. at 4. And because such claims don’t

meet or exceed the coverage limit, taking the setoff in such cases wouldn’t have

affected the coverage limit. 2 Carrion-Kozak, slip op. at 3; Willyard, slip op. at 4.


      2
        One trial court offered the following illustration of this interpretation of
§ 10-4-609(1)(c):

      For example, if a driver has a liability policy that provides $5,000 in
      [MedPay] coverage and a separate UM/UIM policy that provides an
      additional $25,000 in medical coverage, the $25,000 in coverage cannot
                                            4
      But in November 2016, the Colorado Supreme Court issued an opinion that

contravened this understanding. See Calderon v. Am. Family Mut. Ins. Co., 383 P.3d

676 (Colo. 2016). The plaintiff in Calderon had an insurance policy with the

defendant that included $300,000 in UM/UIM coverage and $5,000 in MedPay

coverage. Id. at 677. After the plaintiff sustained injuries in a collision with an

uninsured driver, the defendant paid the plaintiff’s full $5,000 in MedPay benefits.

Id. Yet the parties couldn’t agree on how much the defendant owed the plaintiff in

UM/UIM benefits. Id. A jury eventually awarded the plaintiff about $68,000. Id.

Following the approach many courts took at the time, the trial court reduced the

jury’s award by $5,000 to set off the MedPay benefits the plaintiff had already

received. Id.

      The plaintiff appealed, and the Colorado Court of Appeals held that the setoff

was proper under § 10-4-609(1)(c). Id. The Colorado Supreme Court granted

certiorari and reversed. Id. It held that § 10-4-609(1)(c)’s prohibition on setoffs

“refers not to the coverage limit but rather to the amount of UM/UIM coverage

available on a particular claim.” Id. Thus, under Calderon, the amount a policyholder




      be reduced by the $5,000 policy. Thus, if the insured sustains $30,000 in
      medical expenses, the insured is entitled to full payment of the total
      amount because the insured has $30,000 in coverage ($5,000 +
      $25,000). Alternatively, if the insured sustains only $10,000 in
      expenses, she is not entitled to receive $5,000 from the first policy AND
      $10,000 from the second policy. Such an interpretation would result in
      an improper double recovery.

Carrion-Kozak, slip op. at 3.
                                            5
may claim in UM/UIM benefits is unaffected by any MedPay benefits the

policyholder previously received.

II.   Factual Background

      The plaintiffs in the cases before us each settled a UM/UIM claim after

§ 10-4-609(1)(c)’s effective date but before the Colorado Supreme Court issued

Calderon. The parties thus reached these settlements under the pre-Calderon

understanding of § 10-4-609(1)(c).

      A.     Archuleta’s Claim and Settlement

      Jerry Archuleta held an insurance policy from the United Services Automobile

Association (USAA). The policy included $5,000 in MedPay coverage and $50,000

per person in UM/UIM coverage. Archuleta submitted claims to USAA for MedPay

and UM/UIM benefits in November 2012 after an underinsured driver injured him in

a collision. USAA paid Archuleta $5,000 to satisfy his MedPay claim. It then paid

Archuleta $17,000 in May 2015 to settle his UM/UIM claim.

      The parties agree that when USAA calculated this settlement, it took a $5,000

setoff to account for the MedPay benefits it had previously paid Archuleta. In other

words, USAA determined that Archuleta incurred $22,000 in injuries and then

reduced that amount by the $5,000 it had already paid, arriving at $17,000. Archuleta

accepted the $17,000 settlement and signed a form “releas[ing][] and forever

discharg[ing]” USAA “from any and all claims” he had arising from the November

2012 collision. App. 679.



                                          6
      B.     Hecht’s Claim and Settlement

      Christa Hecht held an auto insurance policy from Progressive Preferred

Insurance Company. Hecht’s policy included $5,000 in MedPay coverage and

$25,000 per person in UM/UIM coverage. Hecht submitted MedPay and UM/UIM

claims in August 2013 after an uninsured driver injured her in a collision. Progressive

Preferred fulfilled Hecht’s MedPay claim and then reached an agreement with her to

settle her UM/UIM claim for $21,678. The parties agree that when Progressive

Preferred calculated this settlement, it took a setoff to reflect the MedPay benefits it

had previously paid Hecht. 3 Hecht also signed a form acknowledging that the

payment was “in full settlement and final discharge of all claims” arising from the

August 2013 collision. App. 143.

      C.     McCracken’s Claim and Settlement

      Brenda McCracken held an insurance policy from Progressive Direct

Insurance Company. McCracken’s policy included $10,000 in MedPay coverage and

$50,000 in UM/UIM coverage. McCracken submitted claims to Progressive Direct

for MedPay and UM/UIM benefits in August 2015 after an uninsured driver injured

her in a collision. Progressive Direct fulfilled McCracken’s MedPay claims and

initially paid her $30,959 for her UM/UIM claim. In September 2016, McCracken

and Progressive Direct agreed to settle her final UM/UIM claim for a total of




      3
      The record doesn’t reflect how much Progressive Preferred paid Hecht in
MedPay benefits.
                                            7
$41,000; Progressive Direct paid McCracken an additional $10,041 to satisfy this

settlement.

       The parties agree that the settlement incorporates a $5,000 setoff Progressive

Direct took to reflect the MedPay benefits it previously paid to McCracken. 4 Upon

receiving the final payment from Progressive Direct, McCracken signed a form

entitled “Full Release and Trust Agreement” in which she acknowledged receiving

$41,000 “in full settlement and final discharge of a disputed claim” arising out of the

August 2015 collision. App. 128.

III.   Proceedings Below

       A.     Archuleta v. USAA

       Archuleta sued USAA and USAA Casualty in Colorado state court on

November 11, 2016—four days after the Colorado Supreme Court decided Calderon.

Archuleta alleged that USAA violated § 10-4-609(1)(c) by taking the MedPay setoff

into account when it calculated his UM/UIM settlement. He asked the court for

damages for breach of contract and a declaratory judgment that averred USAA

wrongly denied him UM/UIM benefits. He further purported to represent a class of

similarly situated plaintiffs who also settled UM/UIM claims with USAA or USAA

Casualty for amounts that took into account setoffs for prior MedPay benefits.




       4
      The record doesn’t reflect how much Progressive Direct paid McCracken in
MedPay benefits.
                                           8
      The insurers removed Archuleta’s lawsuit to federal district court. 5 They then

moved for judgment on the pleadings, arguing that Archuleta released his right to

collect further damages when he accepted the $17,000 settlement for his UM/UIM

claim. Archuleta acknowledged he signed a release but argued that, in the wake of

Calderon, the release was unenforceable as a violation of public policy. The district

court enforced the release and ruled for the insurers. Archuleta appeals.

      B.     McCracken & Hecht v. Progressive

      About a week after Archuleta filed his lawsuit, McCracken and Hecht jointly

sued Progressive Direct and Progressive Preferred in Colorado state court. Like

Archuleta, McCracken and Hecht alleged that the insurers violated § 10-4-609(1)(c)

by taking into account MedPay setoffs when calculating their settlements.

McCracken and Hecht also sought damages for breach of contract, requested a

declaratory judgment that averred the insurers wrongfully withheld UM/UIM benefits




      5
         USAA and USAA Casualty asserted the Class Action Fairness Act of 2005
(CAFA) as the basis for the district court’s jurisdiction. See 28 U.S.C. § 1332(d).
Under the CAFA, federal district courts may exercise jurisdiction—with some
exceptions—over state-law disputes if the matter in controversy exceeds $5 million,
at least one class member is a citizen of a different state than at least one defendant,
and the class includes at least 100 members. See id.; Dart Cherokee Basin Operating
Co., LLC v. Owens, 135 S. Ct. 547, 552 (2014). To remove a putative class action to
federal court, “a defendant’s notice of removal need include only a plausible
allegation” that these requirements are satisfied. Owens, 135 S. Ct. at 554. In their
notice of removal, USAA and USAA Casualty asserted that, by their calculations,
they had taken more than $8 million in MedPay setoffs from more than 1,000
UM/UIM claimants. They further asserted that they were both citizens of Texas while
Archuleta was a citizen of Colorado.
                                           9
from them, and purported to represent a class of plaintiffs with similar claims against

Progressive Direct and Progressive Preferred.

      The insurers removed McCracken and Hecht’s lawsuit to federal district

court. 6 McCracken and Hecht moved for partial summary judgment on (1) whether

Calderon applied retroactively, (2) whether their releases were unenforceable as a

matter of public policy, and (3) whether the district court was required to reform their

insurance contracts. The insurers responded with a cross-motion for full summary

judgment on the theory that the releases McCracken and Hecht each signed precluded

their claims and, alternatively, that Calderon didn’t apply retroactively. After hearing

arguments, the district court ruled from the bench that the releases were enforceable

and granted summary judgment to the insurers.

      McCracken and Hecht appealed, and we consolidated their appeal with

Archuleta’s appeal for the purpose of briefing.

                                       Analysis

I.    Archuleta’s Standing to Sue USAA Casualty

      As a preliminary matter, we sua sponte correct a jurisdictional error in the

judgment in Archuleta’s case below. See City of Colo. Springs v. Climax

Molybdenum Co., 587 F.3d 1071, 1078–79 (10th Cir. 2009) (explaining that we “are



      6
         Progressive Direct and Progressive Preferred asserted in their notice of
removal that, by their calculations, they took almost $7 million in MedPay setoffs
from more than 1,000 UM/UIM claimants. They further asserted that they were both
citizens of Ohio while McCracken was a citizen of Colorado and Hecht was a citizen
of New Jersey.
                                          10
under an independent obligation to examine [our] own jurisdiction, and standing ‘is

perhaps the most important of the jurisdictional doctrines’” (quoting FW/PBS, Inc. v.

City of Dallas, 493 U.S. 215, 231 (1990))).

       The district court ruled that Archuleta lacked standing to sue USAA Casualty

because his “personal allegations concern only USAA,” not USAA Casualty. App.

771. Archuleta doesn’t challenge this conclusion on appeal, so we won’t revisit it

either. See Petrella v. Brownback, 697 F.3d 1285, 1293 (10th Cir. 2012) (explaining

that the plaintiff bears burden of establishing standing). But in light of this

conclusion, we hold that the district court erred by dismissing Archuleta’s claims

against USAA Casualty with prejudice. See Brereton v. Bountiful City Corp., 434

F.3d 1213, 1216 (10th Cir. 2006) (“A longstanding line of cases from this circuit

holds that where the district court dismisses an action for lack of jurisdiction . . . the

dismissal must be without prejudice.”). Accordingly, we remand to the district court

with instructions to vacate its judgment on Archuleta’s claims against USAA

Casualty and dismiss these claims without prejudice.

II.    Merits Against the Remaining Defendants

       We review both of the orders below de novo. See Hall v. Conoco, Inc., 886

F.3d 1308, 1316 (10th Cir. 2018) (reviewing order granting summary judgment de

novo); Sanchez v. U.S. Dep’t of Energy, 870 F.3d 1185, 1199 (10th Cir. 2017)

(reviewing judgment on pleadings de novo). We will affirm the district court’s

judgment on the pleadings for USAA if we agree that Archuleta fails to “allege ‘a

claim to relief that is plausible on its face.’” Sanchez, 870 F.3d at 1199 (quoting

                                            11
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). We will affirm the district court’s

summary-judgment order for Progressive Direct and Progressive Preferred “if,

viewing the evidence in the light most favorable to” McCracken and Hecht, “there is

no genuine dispute as to any material fact” and Progressive Direct and Progressive

Preferred are “entitled to judgment as a matter of law.” Peterson v. Martinez, 707

F.3d 1197, 1207 (10th Cir. 2013).

      A.     The Releases

      The plaintiffs do not dispute that they each signed a release waiving further

claims against the defendants. Nor do they dispute that their present lawsuits fall

within the scope of those releases or that, if the releases are enforceable, they bar the

plaintiffs’ claims. Thus, the purely legal question before us is whether those releases

are enforceable under Colorado law. See Racher v. Westlake Nursing Home Ltd.

P’ship, 871 F.3d 1152, 1162 (10th Cir. 2017) (explaining that we must look to

substantive state law when hearing cases under our diversity jurisdiction).

      “A release is the relinquishment of a claim to the party against whom such

claim was enforceable.” CMCB Enters., Inc. v. Ferguson, 114 P.3d 90, 96 (Colo.

App. 2005). “Once a claim is released, the release bars the injured party from seeking

further recovery.” Id. When questions about a release’s scope or enforceability arise,

Colorado courts answer them with “general contractual rules of interpretation and

construction.” Bunnett v. Smallwood, 793 P.2d 157, 159 (Colo. 1990). Accordingly,

they interpret releases “so as to effectuate the manifest intention of the parties.”

Neves v. Potter, 769 P.2d 1047, 1053 (Colo. 1989); see also USAA Prop. & Cas. Co.

                                           12
v. Brady, 867 P.2d 203, 205 (Colo. App. 1993) (enforcing release in insurance

settlement).

      The plaintiffs argue the releases violate Colorado public policy and are

therefore void. “Colorado courts will not enforce a contract that violates public

policy.” Rademacher v. Becker, 374 P.3d 499, 500 (Colo. App. 2015). “This rule

does not exist for the benefit of the party seeking to avoid contractual obligations, but

instead serves to protect the public from contracts that are detrimental to the public

good.” Id. To void a contractual provision for violating public policy, “the interest in

enforcing the provision [must be] clearly outweighed by a contrary public policy.”

FDIC v. Am. Cas. Co. of Reading, Pa., 843 P.2d 1285, 1290 (Colo. 1992).

      The plaintiffs assert that § 10-4-609(1)(c) and Calderon signal Colorado’s

strong public policy for ensuring that UM/UIM policyholders are fully compensated

for their claims. 7 Thus, they maintain, their releases are void for violating public

policy because the releases prevent them from receiving all the UM/UIM benefits

they’re entitled to—that is, what they would’ve received without the MedPay setoffs.

But after the close of briefing and oral argument in this case, the Colorado Court of

Appeals held that the policy interests behind § 10-4-609(1)(c) and Calderon do not

override the interest in enforcing a release signed pursuant to a negotiated settlement.



      7
         The parties focus much of their briefing on the question of whether Calderon
applies retroactively to the plaintiffs’ settlements and thus bears on the releases’
enforceability at all. But because we ultimately conclude that the releases bar the
plaintiffs’ claims even taking Calderon into account, we don’t consider whether
Calderon is retroactively applicable.
                                            13
See Arline v. Am. Family Mut. Ins. Co., 2018 WL 2436839 (Colo. App. 2018). For

the reasons explained below, we follow Arline and reject the plaintiffs’ argument.



       B.     Arline

       In Arline, the Colorado Court of Appeals resolved an issue that was identical

in all relevant respects to the issue before us here: whether a pre-Calderon release

that took a MedPay setoff into account and that the plaintiff signed pursuant to a

UM/UIM settlement was enforceable in light of Calderon. See id. at *2. In resolving

that question, the court first explained that the policy interests that drove the

Colorado Supreme Court’s reasoning in Calderon aren’t implicated to the same

extent when the parties enter a negotiated settlement to an insurance dispute. See id.

at *3. That’s because, the court said, “[t]he amount of damages resulting from an

injury to an insured motorist is an issue of fact, to be negotiated by the parties or

resolved by a fact finder.” Id. (emphasis added). In Calderon, the trial court reduced

the plaintiff’s award below the amount of damages that the jury found the plaintiff

incurred. See id. But in the case before it—as in the case before us—the plaintiff

“negotiated her damages benefits and agreed that the $27,000 UIM benefit amount

paid compensated her sufficiently to warrant releasing [the defendant] from any

further claims.” Id.

       The Arline court then noted the countervailing policy interests in favor of

encouraging the settlement of disputes. See id. And it explained that “[i]f releases and

settlements could be ‘lightly ignored,’ insureds and insurers would be discouraged

                                            14
from settling claims.” Id. (quoting Davis v. Flatiron Materials Co., 511 P.2d 28, 32

(Colo. 1973)). Lastly, the court concluded that nothing about § 10-4-609(1)(c) itself

prevented parties from taking setoffs while settling insurance disputes. See id. Thus,

it concluded that “the interest in enforcing the [release] . . . [was] neither clearly

outweighed by a contrary public policy nor contrary to law” and accordingly

enforced the release. Id. at 2.

       Decisions of the Colorado Court of Appeals don’t bind us. But we may only

disregard them if we’re “convinced by other persuasive data” that the Colorado

Supreme Court would reach a different result. Stickley v. State Farm Mut. Auto. Ins.

Co., 505 F.3d 1070, 1077 (10th Cir. 2007) (quoting West v. Am. Tel. & Tel. Co., 311

U.S. 223, 237 (1940)); see also West, 311 U.S. at 237 (“Where an intermediate

appellate state court rests its considered judgment upon the rule of law which it

announces, that is a datum for ascertaining state law [that] is not to be disregarded by

a federal court unless it is convinced by other persuasive data that the highest court

of the state would decide otherwise.”).

       In determining whether the Colorado Supreme Court would reach a different

result than the Colorado Court of Appeals reached in Arline, one potentially relevant

data point is Calderon’s interpretation of § 10-4-609(1)(c). But although Calderon

tees up the plaintiffs’ argument, it doesn’t resolve it. Instead, as the Arline court

recognized, nothing in § 10-4-609 or Calderon addressed whether parties can agree

to a setoff as part of a settlement over a disputed claim. See Arline, 2018 WL

2436839, at *3 (declining to extend Calderon “to a settlement and release agreement

                                            15
entered into upon payment of insurance benefits in a negotiated amount”). Calderon

simply held that, as a matter of statutory interpretation, § 10-4-609(1)(c) entitles

UM/UIM claimants to UM/UIM benefits free of MedPay setoffs. See 383 P.3d

at 677–79.

      Thus, when a court calculates how much an insurer owes a policyholder in

UM/UIM benefits, that court cannot take prior MedPay benefits into account. See id.

at 677. And insurers cannot contract around § 10-4-609(1)(c) by writing setoff

provisions into their insurance policies. See id. at 679–80. But it doesn’t follow from

these conclusions that once a UM/UIM policyholder has sustained an injury and thus

has a vested claim to recover under the policy, the policyholder can’t agree to take a

setoff as part of a settlement for that claim. On the contrary, Colorado courts have

consistently held that “[i]n general, statutory rights may be waived if the waiver is

voluntary.” People ex rel. N.G., 303 P.3d 1207, 1218 (Colo. App. 2012); see also,

e.g., First Interstate Bank of Denver, N.A. v. Cent. Bank & Tr. Co. of Denver, 937

P.2d 855, 861 (Colo. App. 1996) (“In general, both substantive and procedural

statutory rights may be waived so long as the waiver is voluntary.”); cf. Finney v.

People, 325 P.3d 1044, 1050 (Colo. 2017) (explaining that “[c]ounsel may waive a

[criminal] defendant’s statutory rights”). Thus, although Calderon held that the

plaintiffs had a statutory right to collect their UM/UIM benefits without a setoff,

whether they were free to waive that right when they settled their claims is a different

matter. Therefore, Calderon doesn’t contradict Arline.



                                           16
      The Colorado Supreme Court’s decision in Kral v. American Hardware

Mutual Insurance Co., 784 P.2d 759 (Colo. 1989), presents another potential data

point that warrants discussion. But nothing in Kral persuades us to stray from Arline.

In Kral, the plaintiff submitted a UM/UIM claim to her insurer after an uninsured

driver killed the plaintiff’s husband in a collision. See id. at 760–61. The plaintiff and

the insurer entered into what’s known as a release-trust agreement, under which the

insurer paid the plaintiff $30,000—the maximum amount of UM/UIM benefits under

the contract. Id. at 761. But the plaintiff agreed to reimburse the insurer with 15% of

any proceeds she recovered from her pending lawsuit against the uninsured driver. Id.

After executing that agreement, the plaintiff amended her lawsuit against the driver

to add a claim against the dram shop that served alcohol to the driver prior to the

collision. Id. The plaintiff then settled that claim for $177,500, and the insurer

subsequently demanded $26,635—15% of that settlement. Id.

      The plaintiff sued for a declaratory judgment that averred the release-trust

agreement was void for violating public policy. Id. The Colorado Supreme Court

agreed that this provision was unenforceable to the extent it required the plaintiff to

reimburse the insurer for damages she recovered from the dram shop. Id. at 765. It

held “that agreements limiting insurers’ liability for [UM/UIM] benefits [are]

enforceable only to the extent such reduction in benefits would not impair the ability

of the insured to achieve full compensation for any loss caused by the conduct of an

uninsured motorist.” Id. at 763. And because the plaintiff would have been able to

recover from the bar and the driver if the driver had been insured, the release-trust

                                           17
agreement prevented the plaintiff from achieving full compensation and was

therefore void. See id. at 764.

      The plaintiffs here argue Kral shows that the policy in favor of ensuring full

compensation for UM/UIM claims is so strong that parties cannot contract around it,

even when settling an existing claim that the parties have had a full and fair

opportunity to valuate. We disagree. In distinguishing the facts before it in Arline

from those before the Colorado Supreme Court in Kral, the Colorado Court of

Appeals pointed out that the plaintiff in Arline—like the plaintiffs in this case and

unlike the plaintiff in Kral—challenged the method the parties used to calculate their

net settlement, not any actual term of the release. Arline, 2018 WL 2436839, at *4.

Id. We have no reason to doubt that the Colorado Supreme Court would similarly

distinguish the facts in Kral from those before us here.

      Moreover, even if the parties here had explicitly agreed to the setoff in the

terms of the releases, we’re not convinced that Kral would render the releases void.

As the Colorado Court of Appeals in Arline recognized, “Kral does not hold that

insured parties are required to accept nothing less than full compensation for their

losses.” Id. Indeed, if Kral stands for the proposition that UM/UIM claimants can

never settle for less than the full value of their claims, then insurers would rarely

have an incentive to settle. We cannot conclude that Colorado’s policy favoring full

recovery of UM/UIM benefits is so strong that it warrants this result. See Colo. Ins.

Guar. Ass’n v. Harris, 827 P.2d 1139, 1142 (Colo. 1992) (discussing public policy in

favor of settling insurance disputes).

                                           18
       Rather, we read Kral as saying that parties to a UM/UIM dispute cannot

include a provision in a settlement agreement that necessarily decreases the

settlement below the bilaterally agreed upon value of the plaintiff’s claim. The

parties in Kral agreed that the full value of the plaintiff’s UM/UIM claim was the full

amount of the UM/UIM coverage—$30,000; thus, any amount the plaintiff

subsequently reimbursed to the insurer would have reduced the plaintiff’s benefits

below the full value of the claim. See 784 P.2d at 761. But in the cases before us, the

parties never agreed that the value of the plaintiffs’ claims was anything higher than

the amount they eventually accepted. And the settlement agreements contained

nothing to further reduce the plaintiffs’ recovery below the amount they agreed upon.

       Put differently, the insurer’s error in Kral was that it bilaterally agreed upon a

settlement amount with the plaintiff and then attempted to reduce the plaintiff’s

benefits below that amount. Here, the insurers unilaterally took the MedPay setoffs

into account when calculating their offers, but didn’t attempt to further reduce the

payments below the value that the plaintiffs accepted. Kral doesn’t limit what parties

can and cannot take into account when assessing the value of their claims. See id.

at 763–65. Ultimately, therefore, the releases in this case didn’t “impair the

[plaintiffs’] ability” to settle for the full value of their losses. Id. at 763. Accordingly,

we don’t read Kral so broadly that it voids the plaintiffs’ releases.

       In sum, we’re not “convinced by other persuasive data” that the Colorado

Supreme Court would disagree with the Colorado Court of Appeals’ decision in

Arline. Stickley, 505 F.3d at 1077 (quoting West, 311 U.S. at 237). Thus, following

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Arline—as we must—we agree with the district courts: the releases are enforceable

and bar the plaintiffs’ claims.

                                        Conclusion

      We reverse the judgment in Archuleta v. USAA insofar as it dismissed

Archuleta’s claims against USAA Casualty with prejudice. As the district court ruled,

Archuleta lacked standing to bring those claims. Accordingly, it did not have

jurisdiction to hear them. We therefore remand to the district court with instructions

to dismiss those claims without prejudice for lack of jurisdiction. Otherwise, we

affirm the remainder of that judgment and affirm the judgment in McCracken &

Hecht v. Progressive in its entirety.




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