                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                     February 28, 2007
                            FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                        Clerk of Court



    D EA N CO LB Y,

                Plaintiff-Appellant,

    v.                                                   No. 06-1301
                                              (D.C. No. 04-cv-00761-W DM -BNB)
    PROG RESSIVE CASUALTY                                  (D . Colo.)
    IN SURANCE COM PANY, an Ohio
    corporation,

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before L UC ER O, BROR BY, and M cCO NNELL, Circuit Judges.


         Plaintiff Dean Colby appeals from the district court’s grant of summary

judgment in favor of defendant Progressive Casualty Insurance Company

(Progressive). We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and we

affirm.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
      M r. Colby is a quadriplegic as the result of an automobile accident on

M arch 27, 1993, when he was a passenger in a vehicle owned and driven by

Thomas Sumners, Jr. M r. Sumners w as the insured under an automobile

insurance policy issued by Progressive. By operation of law, M r. Colby, as a

passenger in M r. Sumner’s vehicle with M r. Sumner’s consent, became eligible

for Personal Injury Protection (PIP) coverage under Progressive’s policy.

Progressive paid up to the policy limits for PIP benefits to M r. Colby, for a total

payment of $129,900, which included $50,000 in rehabilitation benefits.

      W hen the limits of M r. Sumner’s policy had been exhausted, Progressive

ceased paying benefits and declined M r. Colby’s claim for additional

rehabilitation benefits beyond the $50,000 policy limits. M r. Colby then filed suit

in Colorado state court seeking a declaratory judgment that Progressive was

obligated to pay no-fault rehabilitation benefits in excess of $50,000. Although

M r. Colby was successful at the trial court level, the Colorado Court of Appeals

reversed the summary judgment entered in his favor, and the Colorado Supreme

Court affirmed, holding that Progressive was not obligated to pay further

rehabilitation benefits. See Colby v. Progressive Cas. Ins. Co., 928 P.2d 1298,

1301-02 (Colo. 1996).

      Over seven years later, in April 2004, M r. Colby filed the underlying

lawsuit in federal district court and argued for the first time that Progressive had

failed to inform M r. Sumners of his right to purchase enhanced PIP coverage

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under Colo. Rev. Stat. § 10-4-710. M r. Colby asserted the following claims for

relief: (1) declaratory relief and reformation of the insurance policy based on

alleged violations of Colo. Rev. Stat. §§ 10-4-706, 10-4-710; (2) breach of

insurance contract; (3) statutory bad faith; and (4) breach of the implied covenant

of good faith and fair dealing. The parties filed cross-motions for summary

judgment. The district court granted summary judgment in favor of Progressive,

concluding that M r. Colby’s claims were barred by the relevant statutes of

limitation. This appeal followed.

      M r. Colby argues on appeal that the district court erred in granting

summary judgment in favor of Progressive because the district court made factual

determinations that should have been reserved for the jury. W e review de novo

the district court’s grant of summary judgment, applying the same standard as the

district court. Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse

Servs., 165 F.3d 1321, 1326 (10th Cir. 1999). Summary judgment is appropriate

when there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Id. In considering a motion for summary judgment,

the evidence must be viewed in the light most favorable to the party opposing the

motion. Id.

      Having considered the briefs, the record, and the applicable law, we agree

with the district court’s determination that M r. Colby’s claims were barred by the

relevant statutes of limitation and therefore Progressive was entitled to summary

                                         -3-
judgment in its favor. Accordingly, we AFFIRM the district court’s judgment for

substantially the same reasons stated by the district court in its Order filed

June 30, 2006.

                                                      Entered for the Court


                                                      M ichael W . M cConnell
                                                      Circuit Judge




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