20CA1734 Phan v American Family 11-24-2021
COLORADO COURT OF APPEALS
Court of Appeals No. 20CA1734
Arapahoe County District Court No. 19CV280
Honorable John L. Wheeler, Judge
Kent Vu Phan,
Plaintiff-Appellant,
v.
American Family Insurance Company,
Defendant-Appellee.
JUDGMENT AFFIRMED
Division I
Opinion by JUDGE KUHN
Dailey and Dunn, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 24, 2021
Kent Vu Phan, Pro Se
Nina Hammon Jahn, Madison, Wisconsin, for Defendant-Appellee
1
¶ 1 Plaintiff, Kent Vu Phan, appeals the district court’s judgment
dismissing his claims against defendant, American Family
Insurance Company (American Family). We affirm.
I. Background
¶ 2 In 2012, Phan was involved in a car accident with a driver who
was insured by American Family. Alleging that he was injured in
the accident, Phan filed an insurance claim with American Family.
Three years later, American Family closed Phan’s claim.
¶ 3 Since then, Phan has filed multiple pro se state and federal
actions seeking damages from American Family based on the 2012
accident and American Family’s handling of his claim.
¶ 4 Phan first sued American Family in state court in 2015. In
that complaint (which did not assert specific claims or legal theories
for relief), Phan asked the district court to order American Family to
“re-open [his] claim” until he completely recovered from his injuries.
Finding that Phan’s action was time barred because it was filed
outside of the three-year statute of limitations applicable to tort
actions for bodily injuries arising from motor vehicle accidents, the
court dismissed the complaint. See § 13-80-101(1)(n)(I), C.R.S.
2
2021. Phan attempted to appeal to this court and the supreme
court, but his appeals were dismissed as untimely.
¶ 5 After his state appeals were dismissed, Phan sued American
Family in federal court. In his federal complaint, he alleged that
American Family had acted in bad faith and had violated the
Americans with Disabilities Act of 1990 (ADA), see 42 U.S.C.
§§ 12101-12213.
¶ 6 Finding that the “ADA [did] not apply to [his] allegations,” the
federal district court dismissed Phan’s complaint for lack of subject
matter jurisdiction based on the Rooker-Feldman doctrine, which
precludes federal courts from exercising jurisdiction over cases
brought by “state-court losers” challenging state court judgments
rendered before the federal district court proceedings commenced.
Phan v. Am. Fam. Ins. Co., Civ. A. No. 17-CV-00196-GPG, 2017 WL
5172250, at *2-3 (D. Colo. May 1, 2017) (unpublished opinion); see
Lance v. Dennis, 546 U.S. 459, 460 (2006). The Tenth Circuit
affirmed the federal district court’s dismissal. Phan v. Am. Fam. Ins.
Co., 705 F. App’x 766, 768 (10th Cir. 2017).
¶ 7 In 2018, following his unsuccessful foray into federal court,
Phan sued American Family a second time in state court. In that
3
complaint, Phan raised numerous common law claims, state
statutory claims, and federal statutory claims. The district court
granted American Family’s C.R.C.P. 12(b)(5) motion and dismissed
Phan’s complaint.
¶ 8 A division of our court affirmed. Phan v. Am. Fam. Ins. Co.,
(Colo. App. No. 18CA0975, Apr. 4, 2019) (not published pursuant to
C.A.R. 35(e)). Phan’s supreme court appeal was dismissed when he
failed to file a petition for certiorari after unsuccessfully moving for
a filing extension.
¶ 9 Phan later filed or attempted to file a petition for certiorari in
the United States Supreme Court. The status of that appeal is not
entirely clear. While American Family, without citation, states in its
answer brief that the appeal is still pending, nothing else in the
record sheds light on the current status of that appeal.
¶ 10 The case at issue here arose when Phan sued American Family
a third time in state court in 2019. That complaint, which relied on
the same facts and injuries Phan alleged in his prior actions against
4
American Family, was largely comprised of the same undeveloped
claims that the district court dismissed in the 2018 action.
1
¶ 11 Construed broadly, Phan’s complaint and other pleadings
asserted the following claims: (1) statutory bad faith; (2) common
law bad faith; (3) violation of section 10-4-1009, C.R.S. 2021; (4)
violation of section 10-3-1104, C.R.S. 2021; (5) violation of the ADA;
(6) violation of the Protection and Advocacy for Individuals with
Mental Illness Act (PAIMI); (7) violation of his civil rights under 42
U.S.C. §§ 1981, 1983, 1985, and 1986; (8) violation of the Equality
Act of 2010; and (9) violation of 18 U.S.C. § 2255.
¶ 12 While Phan’s third state action was pending, the district court,
in response to American Family’s “Motion to Enjoin Kent Vu Phan
From Filing Additional Pro Se Actions Without Prior Judicial
Approval” (motion to enjoin), ordered Phan to file an affidavit
regarding the criteria set forth in Karr v. Williams, 50 P.3d 910
1
Because the record is unclear whether Phan’s Supreme Court
appeal is still pending, we do not rely on the doctrine of claim
preclusion to resolve this appeal. See Barnett v. Elite Props. of Am.,
Inc., 252 P.3d 14, 22 (Colo. App. 2010) (“[A] judgment is not final for
purposes of issue preclusion until certiorari has been resolved both
in the Colorado Supreme Court and the United States Supreme
Court.”).
5
(Colo. 2002). In doing so, the court adopted and incorporated an
order issued by another trial court in the same jurisdiction in a
different case filed by Phan.
¶ 13 Subsequently, the district court — relying substantially on its
order dismissing Phan’s 2018 complaint — granted American
Family’s C.R.C.P. 12(b)(5) motion and dismissed Phan’s claims.
Additionally, the district court refused to reconsider its ruling on
American Family’s motion to enjoin Phan from filing additional pro
se actions without judicial approval.
¶ 14 Phan appeals the district court’s order.
II. Analysis
¶ 15 While Phan’s briefs do not comply with C.A.R. 28 and are
difficult to decipher, we recognize that, as a pro se litigant whose
first language is not English, he might not articulate his arguments
like a lawyer. See People v. Cali, 2020 CO 20, ¶ 34. To ensure that
he is not denied review of important issues, we construe his
pleadings broadly to effectuate their substance rather than their
form. See id. We will not, however, rewrite his pleadings, act as an
advocate on his behalf, or consider issues he did not raise in the
district court. See id.
6
¶ 16 Phan’s specific objections to the district court’s orders are not
entirely apparent. Broadly, he appears to contend that the district
court erred in two ways: (1) by granting American Family’s C.R.C.P.
12(b)(5) motion to dismiss and (2) in its ruling on the motion to
enjoin.
¶ 17 We first address the district court’s rulings on the individual
claims Phan raised in his complaint. Then, we turn to the order on
the motion to enjoin.
A. Standard of Review and Legal Standards
¶ 18 “We review a C.R.C.P. 12(b)(5) motion to dismiss de novo and
apply the same standards as the trial court.” Norton v. Rocky
Mountain Planned Parenthood, Inc., 2018 CO 3, ¶ 7.
¶ 19 A C.R.C.P. 12(b)(5) motion to dismiss for failure to state a
claim tests the formal sufficiency of a complaint and allows the trial
court to weed out meritless claims. See Credit Serv. Co. v.
Skivington, 2020 COA 60M, ¶ 11. Dismissal under C.R.C.P. 12(b)(5)
is appropriate “if the substantive law does not support the claims
asserted, or if the plaintiff’s factual allegations do not, as a matter
of law, support a claim for relief.” Peña v. Am. Fam. Mut. Ins. Co.,
2018 COA 56, ¶ 13 (citations omitted).
7
¶ 20 To survive a C.R.C.P. 12(b)(5) motion to dismiss, a complaint
must contain factual allegations sufficient to raise a right to relief
“above the speculative level.” Warne v. Hall, 2016 CO 50, ¶ 9
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
“[O]nly a complaint that states a plausible claim for relief survives a
motion to dismiss.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009)).
¶ 21 In evaluating a C.R.C.P. 12(b)(5) motion, we must accept all
factual allegations in the complaint as true and view them in the
light most favorable to the plaintiff. Bewley v. Semler, 2018 CO 79,
¶ 14. However, we are not required to accept as true bare legal
conclusions or conclusory statements that simply recite the
¶19. In our analysis, we may consider any documents that are
attached to the complaint as exhibits or incorporated by reference.
Nieto v. Clark’s Mkt., Inc., 2021 CO 48, ¶ 11.
¶ 22 Additionally, we may affirm an order granting a C.R.C.P.
12(b)(5) motion on any grounds supported by the record, even if the
district court did not rely on those grounds. See Taylor v. Taylor,
2016 COA 100, ¶ 31.
8
¶ 23 A district court may enjoin a pro se litigant from accessing the
court if that litigant has abused the judicial process through
repetitive, baseless litigation. Karr, 50 P.3d at 913-14. We review a
district court’s issuance of such an injunction for abuse of
discretion. Bd. of Cnty. Comm’rs v. Winslow, 706 P.2d 792, 795
(Colo. 1985). A court abuses its discretion when its decision is
manifestly arbitrary, unreasonable, or unfair. People v. Hall, 2021
CO 71M, ¶ 17.
B. Statute of Limitations
¶ 24 As a threshold matter, we briefly address Phan’s contention
that, under section 13-81-103, C.R.S. 2021, the applicable statute
of limitations should be tolled because he is disabled. See Southard
v. Miles, 714 P.2d 891, 897 (Colo. 1986) (Where a plaintiff is a
person under disability as defined by section 13-81-101(3), C.R.S.
2021, “[t]he provisions of section 13-81-103 . . . operate to suspend
the running of the applicable statute of limitations until either the
disability is removed or, as expressly provided in subsection (1)(a), a
‘legal representative’ is appointed for the ‘person under disability.’”).
9
¶ 25 We do not need to resolve this issue because, regardless of
whether the statute of limitations should be tolled, Phan’s claims
fail as a matter of law.
C. Statutory Bad Faith
¶ 26 Phan challenges the district court’s dismissal of his statutory
bad faith claim. We conclude that the district court properly
dismissed the claim.
¶ 27 Sections 10-3-1115 and 10-3-1116, C.R.S. 2021, permit a
“first-party claimant” to assert a claim against an insurance
company for unreasonably delaying or denying a claim for benefits
“owed to or on behalf of any first-party claimant.”
§ 10-3-1115(1)(a); see § 10-3-1116(1). A “first-party claimant” is
“an individual . . . or other legal entity asserting an entitlement to
benefits owed directly to or on behalf of an insured under an
insurance policy.” § 10-3-1115(1)(b)(I).
¶ 28 Phan is not a first-party claimant. He presents no factual
allegations that he is directly or indirectly entitled to benefits from
American Family. He was not insured by American Family, and his
only basis for seeking relief from American Family is that it insured
the other driver. But section 10-3-1115(1)(b)(II)(B) explicitly
10
excludes someone in Phan’s position — a party who is “asserting a
claim against an insured under a liability policy” — from the
definition of first-party claimant.
¶ 29 In short, the remedies provided by sections 10-3-1115 and
10-3-1116 are limited to first-party claimants and are not available
to third-party claimants like Phan. See Gustafson v. Am. Fam. Mut.
Ins. Co., 901 F. Supp. 2d 1289, 1305 (D. Colo. 2012). Therefore,
his claim fails because it is not supported by the substantive law.
See Peña, ¶ 13.
D. Common Law Bad Faith
¶ 30 Phan next challenges the district court’s dismissal of his
common law bad faith claim. We conclude that the district court
properly dismissed the claim.
¶ 31 An insurer has a duty to deal in good faith with its insured.
Kisselman v. Am. Fam. Mut. Ins. Co., 292 P.3d 964, 970 (Colo. App.
2011). That duty “is implied in law as a covenant of the insurance
contract,” and the basis for liability for a common law bad faith
claim “is grounded upon the special nature of the insurance
contract and the relationship which exists between the insured and
11
insurer.” Schnacker v. State Farm Mut. Auto. Ins. Co., 843 P.2d 102,
104 (Colo. App. 1992).
¶ 32 However, “the insurer’s duty of good faith and fair dealing
extends only to its insured, not [a] third party.” Nunn v. Mid-
Century Ins. Co., 244 P.3d 116, 119 (Colo. 2010). While a third-
party claimant may assert a common law bad faith claim against an
insurer for its handling of a claim brought by the third party
against its insured, the third-party claimant can only do so where
the insured has formally assigned its bad faith claims to the third
party. Id. Because Phan does not allege that those circumstances
exist here, his claim fails. See Peña, ¶ 13.
¶ 33 Additionally, Colorado law does not permit a third party to
bring a direct action against an alleged tortfeasor’s insurance
company. Synan v. Haya, 15 P.3d 1117, 1119 (Colo. App. 2000).
Therefore, Phan’s claim is not supported by the substantive law.
See Peña, ¶ 13.
E. Section 10-4-1009
¶ 34 Phan contends that the district court erred by dismissing his
claim that American Family violated section 10-4-1009. We
disagree.
12
¶ 35 Section 10-4-1009 is part of the Fraudulent Claims and Arson
Information Reporting Act, a statutory framework that requires an
insurer to notify certain authorities when it believes a claim may be
fraudulent or that the cause of a fire was arson, regulates the
sharing and disclosure of such information by agencies and
insurers, and provides insurers immunity from civil penalties
arising from providing such information to authorities. See §§ 10-4-
1001 to -1009, C.R.S. 2021.
¶ 36 Section 10-4-1009 states, in its entirety, that “[t]he provisions
of this part 10 shall not be construed to affect or supersede the
duties of insurers and other persons pursuant to the provisions of
part 11 of article 3 of this title.” This language does not create a
cause of action for Phan to assert against American Family.
¶ 37 Additionally, even assuming that section 10-4-1009 creates a
private cause of action, Phan points to no factual allegations in his
complaint that would support his claim. See Warne, ¶ 27.
F. Unfair Claim Settlement Practices
¶ 38 Phan contends that the district court erred by dismissing his
section 10-3-1104(1)(h) unfair settlement practices claim.
Specifically, he asserts that American Family failed to adopt and
13
implement reasonable standards for the prompt investigation of a
claim arising under its insurance policies; refused to pay his claim
without conducting a reasonable investigation based upon all
available information; and did not attempt in good faith to
effectuate prompt, fair, and equitable settlement of his claim even
though liability was reasonably clear. See § 10-3-1104(1)(h)(III)-(V).
¶ 39 Phan’s claim fails for two reasons. First, the statute cannot
support his claim as a matter of law because it “provides for state
regulation of insurance companies and does not create a private
cause of action.” Schnacker, 843 P.2d at 104.
¶ 40 Second, even assuming the statute did permit Phan’s private
cause of action, Phan does not present any factual allegations to
support his claim. See Warne, ¶ 27. Instead, his claim is
comprised of bare conclusory statements that simply recite the
elements of the claim. See Norton, ¶ 7.
G. Americans with Disabilities Act
¶ 41 Phan contends that the district court erred by dismissing his
ADA claim. He asserts that his “impairment and intellectual
disabilities have been exploited by state judges, federal judges . . .
14
and American Family.” Like the district court, we conclude that
Phan’s ADA claim fails.
¶ 42 The ADA “forbids discrimination against persons with
disabilities in three major areas of public life: employment, which is
covered by Title I of the statute; public services, programs, and
activities, which are the subject of Title II; and public
accommodations, which are covered by Title III.” Tennessee v.
Lane, 541 U.S. 509, 516-17 (2004); see 42 U.S.C. §§ 12112, 12132,
12182. None of these titles is applicable to Phan’s claim.
¶ 43 Title I is not applicable because Phan does not allege he
suffered employment discrimination by American Family. See Dep’t
of Hum. Servs. v. State Pers. Bd., 2016 COA 37, ¶ 17 (“To succeed
on an ADA claim, a plaintiff must show: (1) she is disabled, as
defined by the ADA; (2) she is a ‘qualified’ individual who, with or
without reasonable accommodation, can perform the essential
functions of the employment position that such individual holds or
desires; and (3) she suffered discrimination on the basis of her
disability.”).
¶ 44 Title II is also inapplicable. That provision prohibits public
entities — including state and local governments, as well as their
15
agencies and instrumentalities — from discriminating against
“qualified” persons with disabilities in the provision or operation of
public services, programs, or activities, see Lane, 541 U.S. at 517.
But Phan does not allege that American Family is a public entity.
¶ 45 Title III does not apply because Phan is seeking monetary
damages, not injunctive relief. See Powell v. Nat’l Bd. of Med.
Exam’rs, 364 F.3d 79, 86 (2d Cir. 2004) (“A private individual may
only obtain injunctive relief for violations of a right granted under
Title III; he cannot recover damages.”).
H. Protection and Advocacy for Individuals
with Mental Illness Act
¶ 46 Phan contends that the district court erroneously dismissed
his claim under PAIMI. We disagree.
¶ 47 PAIMI creates a framework that empowers certain entities to
investigate abuse of individuals with mental illness and seek civil
remedies on their behalf. See 42 U.S.C. §§ 10801, 10805. It does
not, however, create a private cause of action. See 42 U.S.C.
§ 10851(a) (“Subchapters I and II shall not be construed as
establishing any new rights for individuals with mental illness.”).
Therefore, because Phan is a private citizen, he cannot seek
16
monetary damages against American Family under PAIMI. The
district court properly dismissed his claim because it is not
supported by the substantive law. See Peña, ¶ 13.
I. Civil Rights Claims
¶ 48 Contending that he has suffered racial discrimination, Phan
alleges that the court erred in dismissing the civil rights claims he
raised under 42 U.S.C. §§ 1981, 1983, 1985, and 1986. We
disagree.
¶ 49 To state a claim under 42 U.S.C. § 1981, Phan needed to
allege facts supporting a plausible inference that (1) he was a
member of a protected class; (2) American Family intended to
discriminate against him on the basis of race; and (3) the
discrimination had interfered with a protected activity. See Phan v.
Hipple, 735 F. App’x 492, 494 (10th Cir. 2018); Hampton v. Dillard
Dep’t Stores, Inc., 247 F.3d 1091, 1101-02 (10th Cir. 2001). Phan’s
claim fails because, aside from bare legal conclusions and
unsupported cites to federal statutes, he does not point to any
factual allegations — either in his complaint or his appellate
briefing — that support a prima facie case of racial discrimination
under § 1981. See Norton, ¶ 12.
17
¶ 50 To establish a claim under 42 U.S.C. § 1983, a plaintiff must
allege that the defendant, acting under the color of state law,
deprived him of a right, privilege, or immunity guaranteed by the
Federal Constitution and laws. Beaver Creek Prop. Owners Ass’n v.
Bachelor Gulch Metro. Dist., 271 P.3d 578, 586 (Colo. App. 2011);
see West v. Atkins, 487 U.S. 42, 48 (1988). Because Phan does not
allege that American Family was a state actor or acting under the
color of state law, his § 1983 claim fails.
¶ 51 Phan does not state which subsection of § 1985 his claim falls
under. Based on the substance of his pleadings, it appears he
sought relief under subsection (3).
2
¶ 52 To establish a claim under § 1985(3), Phan needed to present
sufficient allegations of “(1) a conspiracy; (2) to deprive [him] of
equal protection or equal privileges and immunities; (3) an act in
furtherance of the conspiracy; and (4) an injury or deprivation
resulting therefrom.” Vazirabadi v. Denver Health & Hosp. Auth.,
2
Subsection (1) addresses conspiracies to prevent a person from
holding office or discharging official duties. Subsection (2)
addresses conspiracies to obstruct justice or intimidate parties,
witnesses, or jurors in legal proceedings. 42 U.S.C. § 1985(1), (2).
Neither is applicable here.
18
782 F. App’x 681, 689 (10th Cir. 2019) (quoting Tilton v.
Richardson, 6 F.3d 683, 686 (10th Cir. 1993)). Phan does not allege
that American Family engaged in a conspiracy and does not identify
which right he was supposedly deprived of. Therefore, his § 1985
claim fails.
¶ 53 Because Phan does not have a valid § 1985 claim, his § 1986
1230 (10th Cir. 1990) (“Section 1986, which provides an action for
neglecting to prevent a violation of Section 1985, is premised upon
the existence of a valid Section 1985 claim.”).
J. Equality Act
¶ 54 Phan asserts that the court erred by dismissing his claim for
relief under the Equality Act of 2010. We disagree.
¶ 55 The Equality Act of 2010 is a British law. Thus, it cannot
support Phan’s claims for relief. Construing his pleadings broadly,
see Cali, ¶ 34, we believe Phan may have attempted to seek relief
under a similarly titled measure that has been introduced in the
United States House of Representatives. See Equality Act, H.R. 5,
116th Cong. (2019). That measure, which has not been passed by
19
the Senate or signed by the President, is not law. Therefore, it
provides Phan no basis for relief.
K. 18 U.S.C. § 2255
¶ 56 We conclude that the district court properly dismissed Phan’s
claim that American Family violated 18 U.S.C. § 2255.
¶ 57 That statute allows “[a]ny person who, while a minor, was a
victim” of a delineated set of sex crimes “and who suffers personal
injury as a result . . . regardless of whether the injury occurred
while such person was a minor” to sue and recover damages of no
less than $150,000. Doe v. Boland, 698 F.3d 877, 880 (6th Cir.
2012) (quoting 18 U.S.C. § 2255(a)).
¶ 58 Phan raises no factual allegations that he was victimized
under any of the delineated crimes as a minor. Therefore, the court
properly dismissed his claim.
L. Remaining State Law Claims
¶ 59 Phan appears to contend that the court erred by dismissing
claims he asserted under sections 13-21-102, 13-21-102.5,
13-64-202, and 13-64-302, C.R.S. 2021. Phan did not aver claims
under sections 13-64-202 and 13-64-302 in his complaint and the
district court did not address those provisions in its order. See
20
Melat, Pressman & Higbie, L.L.P. v. Hannon L. Firm, L.L.C., 2012 CO
61, ¶ 18 (“It is axiomatic that issues not raised in or decided by a
lower court will not be addressed for the first time on appeal.”).
Regardless of whether those claims were preserved, none of the four
statutes creates a private cause of action and therefore cannot form
the basis of a suit. See, e.g., City of Arvada ex rel. Arvada Police
Dep’t v. Denver Health & Hosp. Auth., 2017 CO 97, ¶¶ 19-22 (noting
that a plaintiff may only seek redress in Colorado courts if they
“have suffered (1) an injury-in-fact to (2) a legally protected
interest”).
M. Motion to Enjoin
¶ 60 Lastly, Phan appears to challenge the district court’s ruling on
the motion to enjoin. As noted in Part I, the district court adopted
an order that was issued by another court in the same jurisdiction
in a different action filed by Phan.
¶ 61 Recently, a division of our court concluded that the trial court
in that other case did not abuse its discretion when it enjoined
Phan from filing pro se lawsuits without complying with Karr. See
Phan v. State Farm Mut. Ins. Co., slip op. at 14 (Colo. App.
21
20CA0939, Oct. 28, 2021) (not published pursuant to C.A.R. 35(e)).
We adopt the reasoning of that division and do the same.
¶ 62 Given that Phan continues to file baseless litigation involving
the same claims, the district court did not err in requiring him to
file a Karr affidavit in this case.
III. Conclusion
¶ 63 The judgment is affirmed.
JUDGE DAILEY and JUDGE DUNN concur.