MATHESON, Circuit Judge.
On April 4, 1998, a driver hit pedestrian Roberta Folks with the side mirror of his vehicle and injured her. State Farm, the driver's insurer, informed Ms. Folks she could receive basic personal injury protection ("PIP") benefits under the driver's policy. She received $104,000 in medical expenses and essential services. On July 11, 2002, State Farm told her she had exhausted the benefits available to her under the policy.
Ms. Folks joined a lawsuit seeking additional PIP benefits in 2004. Over the course of the litigation, Ms. Folks unsuccessfully sought to certify a class on three occasions.
On appeal, Ms. Folks asks us to reverse the district court's denial of class certification and remand the case for reconsideration of her claim for class-wide relief.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court.
In 1973, Colorado enacted the Colorado Auto Accident Reparations Act ("CAARA").
Notwithstanding CAARA, a number of insurance companies — including State Farm — did not offer or pay enhanced PIP benefits to injured pedestrians, even if the policyholder had selected enhanced PIP benefits for the policy generally. In 1998, the Colorado Court of Appeals deemed this exception — the "Pedestrian Limitation" — impermissible under the statute. See Brennan v. Farmers Alliance Mut. Ins. Co., 961 P.2d 550, 553-54 (Colo.App.), cert. denied (Colo. 1998). In response to Brennan, State Farm eliminated its Pedestrian Limitation, but lawsuits followed seeking recovery of enhanced PIP benefits.
On April 4, 1998, Ms. Folks was standing in a parking lot when the side mirror of a vehicle struck and injured her. The driver had a State Farm policy, issued before Brennan, which did not extend enhanced PIP benefits to pedestrians. Before the statute of limitations ran on her claim, Ms. Folks became part of the putative
In 2000, Ricky Clark, another pedestrian who was struck and injured by a State Farm-insured vehicle, filed a putative class action against State Farm, which removed the case to the U.S. District Court for the District of Colorado. Mr. Clark argued State Farm had routinely failed to offer or pay enhanced PIP benefits under § 10-4-710 and Brennan. The district court granted State Farm's motion to dismiss that claim. In Clark I, we decided Brennan applied retroactively and Mr. Clark was entitled to reformation of his insurance policy, and reversed the district court. See Clark v. State Farm Mut. Auto. Ins. Co. (Clark I), 319 F.3d 1234, 1237-38, 1242 (10th Cir.2003).
On remand, the district court determined the proper date of reformation would be December 19, 2003 — the date its post-remand order was entered. Clark v. State Farm Mut. Auto. Ins. Co. (Clark II), 292 F.Supp.2d 1252, 1270 (D.Colo. 2003). In the ensuing appeal, we affirmed that (1) Mr. Clark should be awarded the extended PIP benefits State Farm was supposed to offer to its insureds, (2) State Farm could cap those benefits at $200,000, (3) the date of the district court's order was appropriate as a date of reformation, and (4) the policy could be reformed to provide extended PIP benefits only to injured pedestrians and not other potential claimants. Clark v. State Farm Mut. Auto. Ins. Co. (Clark III), 433 F.3d 703, 714 (10th Cir.2005).
Shortly after Clark III, State Farm undertook a voluntary payment program ("VPP") to pay extended PIP benefits to individuals who were potentially entitled to reformation under the Clark litigation. The VPP identified potential claimants, notified them they may be entitled to additional PIP benefits, invited them to contact State Farm, and in some instances sent them a check accompanying the notice.
After Clark III was remanded, the district court addressed Mr. Clark's attempt to certify a class of:
Clark v. State Farm Mut. Auto. Ins. Co. (Clark IV), 245 F.R.D. 478, 480 (D.Colo. 2007). The district court denied Mr. Clark's motion for class certification on multiple alternative grounds, including failure to establish numerosity under Federal Rule of Civil Procedure 23(a)(1) and failure to satisfy either Federal Rule of Civil Procedure 23(b)(2) or (b)(3). Id. at 481-83, 485-89.
In May 2004, Ms. Folks joined as a named plaintiff a lawsuit Kim Nguyen brought against State Farm. The suit asserted class action claims for declaratory relief and reformation, breach of contract and failure to pay PIP benefits, violation of the No Fault Act, statutory willful and wanton breach of contract, and breach of the duty of good faith and fair dealing.
State Farm moved for summary judgment, arguing Ms. Nguyen was not entitled to reformation because she was injured as a passenger, not a pedestrian, and Ms. Folks's claims were time-barred because they were filed after the three-year statute of limitations expired. The district court granted the motion. We affirmed the district court's determination that Ms. Nguyen was not entitled to reformation, but reversed the district court on Ms. Folks's claims. Folks v. State Farm Mut. Ins. Co., 299 Fed.Appx. 748, 756, 758-59 (10th Cir.2008) (unpublished).
As it happened, however, Clark V neither upheld the denial of class certification nor reversed the denial. Instead, we decided the case on the limited ground that the claims of the class representative, Mr. Clark, were moot. Thus, about one year after Clark V, Ms. Folks again moved for class certification, seeking to certify a class of:
Aplt. App. at 66 (footnote omitted).
This proposed class is virtually identical to the class Mr. Clark proposed in Clark IV.
The district court concluded Ms. Folks's proposed class did not satisfy Rule 23.
Ms. Folks's individual claims proceeded to trial. A jury decided in her favor on September 28, 2012. The jury awarded
In her motion, Ms. Folks argued she was entitled to an award of pre-judgment interest under § 10-4-708(1.8), and contended that interest accrued from July 11, 2002 to the date of judgment. Ms. Folks also argued § 10-4-708(1.8) required the court to treble the $96,000 jury award for willful and wanton conduct, for a total of $288,000. She contended that the court should award the trebled damages in addition to the $40,000 in actual damages she recovered in the proceeding.
In response to Ms. Folks's motion, State Farm argued it was liable for pre-judgment interest only after Ms. Folks had submitted additional medical bills to State Farm on May 13, 2009, and that pre-judgment interest began to accrue when payment for those bills was due on June 12, 2009. State Farm's own motion argued the jury's finding of willful and wanton conduct could only treble the $40,000 in actual damages under § 10-4-708(1.8) for a total of $120,000 in damages, and could not support a separate additional award of $96,000.
The district court amended the judgment based on the parties' motions. First, the court considered the text of § 10-4-708(1.8), trebled the $40,000 in actual damages because of State Farm's willful and wanton conduct, and awarded Ms. Folks a total of $120,000. Second, the court determined Ms. Folks established her entitlement to benefits when she submitted bills to State Farm on May 13, 2009, and awarded Ms. Folks pre-judgment interest from June 12, 2009, which amounted to $23,769.86. The court entered its amended final judgment on September 24, 2013. Ms. Folks filed a timely appeal.
On appeal, Ms. Folks challenges the district court's denial of class certification, calculation of treble damages for willful and wanton conduct, and calculation of pre-judgment interest.
Ms. Folks seeks to appeal the district court's Rule 23 ruling, but we must initially determine whether she has properly preserved the argument she makes here. Ms. Folks's motion for class certification focused on reformation and damages. She proposed a two-stage litigation structure to establish equitable relief as the basis for a damages class.
Instead, Ms. Folks now "seeks (1) a classwide declaration that State Farm's policy limitation is invalid, and (2) notice to class members that will correct misleading statements by State Farm and enable them to protect their rights." Aplt. Br. at 21-22.
"The matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals ...." Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976). After careful consideration of the record, we conclude Ms. Folks has forfeited any argument that the district court erred in failing to consider whether notice would provide a basis to certify a class. In the introduction to her motion for class certification, Ms. Folks stated, "The only questions that remain to be decided are which insureds are entitled to reformation and the subsequent damages, and whether these remedies can be achieved in one action." Aplt. App. at 66. The motion accordingly sought class-wide contract reformation, a class-wide date of reformation, and damages.
Ms. Folks did not argue notice would merit certification of a class, consistently indicated notice would be optional and class-wide reformation would be necessary to remedy the alleged class-wide injuries, and did not argue for notice with sufficient specificity. She may not argue a different ground for class certification for the first time on appeal. The overlapping reasons Ms. Folks gives to preserve her notice argument are not convincing.
Ms. Folks insists that, in addition to reformation and damages, she also sought class-wide notice.
First, Ms. Folks's references to "notice" in her filings concern two different forms of notice under Rule 23. Notice may constitute
Although Ms. Folks cites to various places where "notice" was invoked in her filings, the majority of these references do not demonstrate she sought the first type of notice as a basis for class certification. They illustrate instead Ms. Folks wished to notify the class of the pending litigation — the second type of notice — and often expressly refer to the relevant sections of Rule 23 that deal with this type of notice. In particular, Ms. Folks's argument that the class satisfied Rule 23(b)(2) specified "the main purpose of this lawsuit is to secure for all class members a declaration that their State Farm policy is unlawful and must be reformed, as well as a declaration of the effective date of reformation for all the policies at issue," and indicated notice was optional under Rule 23(c). See, e.g., Aplt. App. at 86 n. 13 ("If the Court certifies a class only pursuant to Fed. R.Civ.P. 23(b)(2), under which notice to class members is not mandatory, Plaintiff requests that the Court exercise its discretion to order `appropriate notice to the class.' Fed.R.Civ.P. 23(c)(2)(A)."); Aplt. App at 87 ("Plaintiff believes that the hybrid procedure is most appropriate here, as the 23(b)(2) injunctive relief is essential, but the notice and opt out provisions of 23(b)(3) would also be beneficial to the class. Fed.R.Civ.P. 23(c)(1)-(2)."); see also Aplt. Reply Br. at 13-16 (invoking the discretionary notice provisions of Fed. R.Civ.P. 23(d)(1)(B) and Fed.R.Civ.P. 23(c)(2)(A)).
Second, to preserve her argument on appeal, Ms. Folks must not only show she identified the issue for the district court, but also that she sought a ruling on it. Our test for forfeiture requires that a party "alerts the district court to the issue and seeks a ruling." Somerlott v. Cherokee Nation Distribs., Inc., 686 F.3d 1144, 1150 (10th Cir.2012) (quotations omitted) (emphasis added). "[W]e have held that where an issue is raised but not pursued in the trial court, it cannot be the basis for the appeal." Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 722 (10th Cir.1993) (emphasis added).
Indeed, Ms. Folks's motion for certification repeatedly indicated notice would not suffice to provide meaningful relief to the class, and emphasized contract reformation was essential. The class-wide injury Ms. Folks alleged — that each class member "has suffered the same harm in not being afforded enhanced PIP benefits" — cannot be cured by notice, which would not reform the class members' contracts to provide enhanced PIP benefits. Id. at 74. Without reformation, the insurer would not be required to pay the additional benefits under Brennan, which Ms. Folks herself pointed out in her filings. See id. at 76, 517, 524.
Ms. Folks suggests that, "[b]ecause injured pedestrians are third-party insureds and generally unaware of their rights, notice was always a necessary incident of the requested declaration." Aplt. Reply Br. at 16. We find this attempt to deduce a request for notice unconvincing. We have previously rejected attempts to present vague or ambiguous claims for relief to the district court and then introduce a new, specific theory for relief on appeal, deeming the latter argument improperly preserved. See Bancamerica Commercial Corp. v. Mosher Steel of Kan., Inc., 100 F.3d 792, 798-99 (10th Cir.1996); Cnty. Line Inv. Co. v. Tinney, 933 F.2d 1508, 1515 (10th Cir.1991). "Where a litigant changes to a new theory on appeal that falls under the same general category as an argument presented at trial or presents a theory that was discussed in a vague and ambiguous way the theory will not be considered on appeal." Bancamerica, 100 F.3d at 798-99 (quotations and alteration omitted); see also Carpenter v.
Finally, if Ms. Folks's passing references to "notice" or implicit demands for notice could conceivably constitute relief for the class and a basis for class certification, she has not made that argument with sufficient clarity and specificity to preserve it for appeal. "The touchstone on this issue is that vague, arguable references to a point in the district court proceedings do not preserve the issue on appeal." Lyons, 994 F.2d at 721 (quotations and alterations omitted). This is because such "perfunctory presentation" deprives the trial court of its opportunity to consider and rule on an issue in any detail. Tele-Commc'ns, Inc. v. Comm'r, 104 F.3d 1229, 1233-34 (10th Cir.1997). As we have warned, such "minimal development of an issue in the district court could well result in forfeiture ... given the institutional interest of a court of appeals in not resolving issues in the first instance." Ark Initiative v. U.S. Forest Serv., 660 F.3d 1256, 1263 (10th Cir.2011).
Because Ms. Folks did not argue the district court should certify a class for the purpose of delivering notice, the district court did not pass on the viability of notice as a basis for class certification or as a form of relief. The court only considered whether "the case be certified as a Rule 23(b)(2) case for the purposes of the declaratory relief regarding the reformation of the underlying policies and a Rule 23(b)(3) class for the purposes of damages arising from the reformation." Folks v. State Farm Mut. Auto. Ins. Co., 281 F.R.D. 608, 618 (D.Colo.2012). "In order to preserve the integrity of the appellate structure, we should not be considered a `second-shot' forum, a forum where secondary, back-up theories may be mounted for the first time." Tele-Commc'ns, 104 F.3d at 1233. Without the benefit of the trial court's determination, we decline to reach the issue for the first time on appeal.
Ms. Folks seeks only a declaration that State Farm's policy limitation is invalid — a point settled by Clark I and Brennan — and corrective notice to class members. We deem this novel argument on appeal for class certification forfeited. We may "entertain forfeited theories on appeal, but we will reverse a district court's judgment on the basis of a forfeited theory only if failing to do so would entrench a plainly erroneous result." Richison, 634 F.3d at 1127. Here, Ms. Folks has failed to argue plain error, which "surely marks the end of the road for an argument for reversal not first presented to the district court." Id. at 1131.
Having determined Ms. Folks has forfeited her class certification arguments, we need not address the district court's conclusions regarding Rule 23(a) and Rule 23(b)(2) and affirm the district court.
In addition to her class claims, Ms. Folks appeals the district court's calculation of damages in her own case. We
The parties dispute whether the district court correctly interpreted § 10-4-708(1.8). We review questions of statutory interpretation de novo. United States v. Nacchio, 573 F.3d 1062, 1087 (10th Cir. 2009).
At trial, the jury awarded Ms. Folks $40,000 in unpaid benefits under § 10-4-708(1) and found State Farm acted willfully and wantonly when it denied payment of insurance benefits to Ms. Folks.
Ms. Folks argues the plain language of § 10-4-708(1.8) mandates payment of treble damages independent of and in addition to underlying benefits, that is, $160,000 — the $40,000 in unpaid benefits plus $120,000 in treble damages.
The district court correctly construed § 10-4-708(1.8) when it calculated treble damages. The text provides for two types of payments. The first sentence of the subsection states: "The insurer shall pay interest to the insured on the benefits recovered at a rate of eighteen percent per annum, with interest commencing from the date the benefits recovered were due." Colo.Rev.Stat. § 10-4-708(1.8). The second sentence of the subsection states: "In addition, in the event of willful and wanton failure of the insurer to pay such benefits when due, the insurer shall pay to the insured, in addition to any other amounts due to the insured under this subsection (1.8), an amount which is three times the amount of unpaid benefits recovered in the proceeding." Id.
First, the district court's calculations follow the plain meaning of the statute. The statute specifies the trebled damages are in addition to other amounts due "under this subsection (1.8)," and not in addition to other amounts due under other sections of CAARA. The only other amount due under subsection (1.8) is pre-judgment interest, not the unpaid benefits under the policy, which are due under subsection (1). Nothing in the statutory text indicates a court is supposed to add the trebled amount to the amount of actual damages awarded.
Second, precedent supports this reading. In addition to Tait, other cases have regarded treble damages under § 10-4-708(1.8) as non-additive. See, e.g., Mid-Century Ins. Co. v. Travelers Indem. Co. of Ill., 982 P.2d 310, 313 n. 6 (Colo.1999) ("Statutory treble damages are calculated by taking the amount of benefits recovered, then multiplying that amount by three. See [Colo.Rev.Stat.] § 10-4-708(1.8). Treble damages awarded in this case amounted to $172,167.27."); Answer Brief at 6, Mid-Century Ins. Co., 982 P.2d 310 (No. 98SC26), 1998 WL 34193699 (specifying the underlying damages in the Mid-Century case were $57,389.09); Brief of Plaintiff-Appellant at 8, 19, Potter v. State Farm Mut. Auto. Ins. Co., 21 P.3d 874 (Colo.App.2001) (No.1999CA1995), 2000 WL 35537365 (observing the trial court "awarded the Plaintiff a sum equal to the amount of unpaid PIP benefits ... plus two times that amount for total damages recoverable under the PIP statute," rejected the argument that treble damages are to be added to the underlying damages award, and "ruled, as a matter of law, that `you treble the amount of unpaid benefits and that is all you get'").
This reading of Colorado law accords with our cases and those of Colorado courts. See, e.g., Wilson v. State Farm Mut. Auto. Ins. Co., 934 F.2d 261, 266 (10th Cir.1991) (instructing the district court "to treble the damages, if any, determined under the gross income claim" but not specifying these were to be awarded separately); Munoz v. State Farm Mut. Auto. Ins. Co., 968 P.2d 126, 128 (Colo. App.1998) (noting "the trial court invoked § 10-4-708(1.8) ... and trebled plaintiff's damage award on her statutory claim").
Because the district court's calculation of interest was based on a legal conclusion regarding the date of breach, we review the district court's determination de novo. See AE, Inc. v. Goodyear Tire & Rubber Co., 576 F.3d 1050, 1055 (10th Cir. 2009) ("Although an award of prejudgment interest is generally reviewed for abuse of discretion, any statutory interpretation or legal analysis underlying such an award is reviewed de novo." (quotations omitted)).
Colorado law obligated State Farm to pay benefits within 30 days after Ms. Folks demonstrated an entitlement to enhanced PIP benefits. See Colo.Rev.Stat. § 10-4-708(1.8) (requiring the insurer to "pay interest to the insured on the benefits recovered at the rate of eighteen percent per annum, with interest commencing from the date the benefits recovered were due"); id. § 10-4-708(1) (explaining benefits are overdue "if not paid within thirty days after the insurer receives reasonable proof of the fact and amount of expenses"). Ms. Folks submitted a small bill for $64.73 on June 16, 2002. State Farm did not pay
Ms. Folks argues she is entitled to interest on medical expenses starting from the date State Farm breached the contract. See Vento v. Colo. Nat'l Bank-Pueblo, 907 P.2d 642, 647-48 (Colo.App.1995) (concluding pre-judgment interest under a different statute is assessed beginning from the date of injury). She argues that because State Farm wrongly instructed her on July 11, 2002 that coverage was exhausted and deterred her from submitting additional medical claims, she had a claim for total breach of contract as of that date and was excused from future performance.
Under the Colorado statute, Ms. Folks is not entitled to additional pre-judgment interest. Even if anticipatory repudiation occurred on July 11, 2002 and Ms. Folks can demonstrate a breach of contract, this does not entitle her to statutory pre-judgment interest. The district court relied on the plain language of § 10-4-708(1.8), which obligated State Farm to pay interest to Ms. Folks "from the date the benefits recovered were due." Colo.Rev.Stat. § 10-4-708(1.8). Under another subsection of the statute, the benefits were due "thirty days after the insurer receives reasonable proof of the fact and amount of expenses incurred." Id. § 10-4-708(1). The statute neither references nor depends on whether the contract had been breached. It establishes its own prerequisites for the payment of interest. State Farm was liable only for bills received after the reformed contract with Ms. Folks took effect on July 11, 2002, and was not liable for bills sent before then when it had no obligation to refund Ms. Folks beyond the amount it had already provided.
Whether Ms. Folks may recover for breach of contract and for willful and wanton breach does not factor into the statutory determination of pre-judgment interest. The district court correctly calculated Ms. Folks's pre-judgment interest based on the plain meaning of the statute.
We affirm the district court's denial of class certification, calculation of treble damages, and calculation of pre-judgment interest.
Fed.R.Civ.P. 23(a).
The plaintiff also must satisfy the requirements for one of the three types of class actions detailed in Federal Rule of Civil Procedure 23(b). On appeal, Ms. Folks seeks to certify a class under Rule 23(b)(2) and therefore she must demonstrate that State Farm "has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Fed.R.Civ.P. 23(b)(2).
Aplt. App. at 75-76, 78 (citations omitted).
Aplt. App. at 517-18. On that basis, Ms. Folks characterized the declaratory relief of reformation as "essential." Aplt. App. at 519. We fail to see how the district court or State Farm could have understood Ms. Folks to be saying notice without reformation would merit class certification.
Colo.Rev.Stat. § 10-4-708(1).
Colo.Rev. Stat. § 10-4-708(1.8).
When Williams reached the Colorado Supreme Court, its analysis invoked a California decision which treated treble damages as non-additive, see Farmers Grp., Inc., 805 P.2d at 427 (citing Kelly v. Yee, 213 Cal.App.3d 336, 341, 261 Cal.Rptr. 568 (1989)), and likened the statute to the treble damages provision in antitrust law, id., which is also non-additive. See, e.g., Am. Soc'y of Mech. Eng'rs, Inc. v. Hydrolevel Corp., 456 U.S. 556, 575-76, 102 S.Ct. 1935, 72 L.Ed.2d 330 (1982) (affirming the award of non-additive treble damages under federal antitrust law).