Opinion
21-cv-02364-NYW
05-18-2022
JACK SUNAHARA, JR. Plaintiff v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Defendant
COMPLAINT AND JURY DEMAND
Plaintiff, Jack Sunahara Jr., by and through his counsel, Michael O'B. Keating of the law firm of Fogel, Keating, Wagner, Polidori and Shafner, P.C., hereby submits his Complaint and Jury Demand against Defendant State Farm Mutual Automobile Insurance Company. As grounds therefor, Plaintiff states and alleges as follows:
GENERAL ALLEGATIONS
1. Plaintiff, Jack Sunahara Jr., was and is a Colorado resident who has a business address of 3525 South Tamarac Drive, Suite 160, Denver, CO 80237.
2. The Defendant, State Farm Mutual Automobile Insurance Company (hereinafter “State Farm”), at all times relevant herein, was and is a foreign corporation authorized to transact business in the State of Colorado. State Farm Automobile Insurance Company's locally registered agent is Kathleen Rees, located at 1555 Promontory Circle, Greeley, Colorado 80638.
3. On April 28, 2004, Plaintiff Sunahara, who was with his son at the time, was returning to his place of employment located at 3525 South Tamarac Drive.
When Plaintiff and his son arrived, Plaintiff's son parked his vehicle next to Raymond Mallard's car. Mr. Mallard was double parked in the parking lot. Without warning and without provocation, Mr. Mallard began to damage Plaintiff's son's car. As Plaintiff approached Raymond Mallard, Mr. Mallard got into his vehicle and accelerated toward the Plaintiff and Plaintiff's son.
4. Raymond Mallard ran over the Plaintiff and then fled the scene.
5. By accelerating and striking Plaintiff, who was a pedestrian at the time, Mr. Mallard violated various statutes and ordinances, including, but not limited to, Colorado Motor Vehicle Code, C.R.S. §42-4-1601; 42-4-140 and 42-4-807.
6. There is no dispute as to the liability of the at-fault driver, Mr. Mallard.
7. At the time of this incident, Plaintiff Sunahara had in full force and effect an uninsured/underinsured insurance policy with Defendant State Farm. The State Farm insurance policy number is 06-96-0441-6.
8. Plaintiff Sunahara's uninsured/underinsured insurance policy with Defendant State Farm has limits of $2,000,000.00 9. Defendant State Farm's insurance agreement with Plaintiff states that State Farm will provide coverage and pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured/underinsured motor vehicle.
10. Defendant State Farm's insurance agreement with Plaintiff also states that State Farm will provide coverage when the limits of liability of all applicable bodily injury liability bonds and policies have been used up by payment of judgements or settlements.
11. Pursuant to State Farm's insurance agreement with Plaintiff, an underinsured motor vehicle is one with limits of liability for bodily injury that is less than the limits of Plaintiff's insurance coverage with State Farm.
12. Mr. Mallard was insured through Unitrin/Trinity Universal Auto for limits of liability of $100,000.00 per person.
13. Under the policy provisions of State Farm's uninsured motorist vehicle coverage, Mr. Mallard was an "underinsured" driver as his liability insurance coverage was less than the policy limits of this coverage under this policy.
14. Pursuant to State Farm's policy requirement, Plaintiff asked for State Farm's consent to settle his claim against Mr. Mallard.
15. State Farm gave consent for Plaintiff to settle his claim against Mr. Mallard for the sum of $100,000.00. On October 3, 2005, Plaintiff settled with Mr. Mallard.
16. Plaintiff has performed all conditions that Defendant State Farm's policy required to be performed, including but not limited to, paying all premiums in a timely fashion.
17. As a result of the subject incident, Plaintiff Sunahara suffered various injuries, including, but not limited to, low back injuries and rotator cuff injuries which required surgery. Plaintiff Sunahara has incurred reasonable and necessary medical and rehabilitative expenses in excess of $10,000.00.
18. A sudden, unanticipated emergency was not a factor in causing or contributing to the cause of this incident.
19. Weather conditions were not a factor in causing or contributing to the incident in question.
20. The mechanical condition of Mr. Mallard's vehicle was not a factor in causing or contributing to the cause of the incident.
21. The comparative negligence of Plaintiff Sunahara was not a factor in causing or contributing to the cause of the incident in question.
22. As a result of the injuries that he suffered in the aforementioned accident, Plaintiff Sunahara has incurred reasonable and necessary medical and rehabilitative expenses.
23. As a result of the injuries he suffered in the incident in question, Plaintiff Sunahara will continue to incur medical and rehabilitative expenses in the future.
24. As a result of the injuries he suffered in the incident in question, Plaintiff Sunahara has suffered permanent physical impairment.
25. As a result of the injuries he suffered in the incident in question, Plaintiff Sunahara has sustained a loss of earnings and a permanent loss of earning capacity.
26. Plaintiff Sunahara has not failed to mitigate any of the damages which he suffered in the incident in question.
27. Defendant is not entitled to any of the protections afforded by C.R.S. § 13-21111.6 (Collateral Source) in connection with Plaintiff's Complaint.
28. Defendant is not entitled to any of the protections afforded by C.R.S. § 13-21111.7 (Assumption of Risk) in connection with Plaintiff's Complaint.
29. Defendant is not entitled to any of the protections afforded by C.R.S. § 13-21111.5 (Several Liability) in connection with Plaintiff's Complaint.
30. Defendant is not entitled to any of the protections afforded by C.R.S. § 13-21111.5 (Responsible Non-Parties) in connection with Plaintiff's Complaint.
31. Venue is proper in the county designated in this Complaint.
FIRST CLAIM FOR RELIEF
(Against Defendant State Farm for Underinsured Benefits)
32. Plaintiff hereby incorporates paragraphs 1 through 31 as though more fully set forth herein.
33. The bodily injury, that Plaintiff Sunahara suffered in the incident with Mr. Mallard, was sustained while Plaintiff was an insured with Defendant State Farm, and was caused by an incident arising out of the operation and maintenance or use of an underinsured motor vehicle.
34. Mr. Mallard, the at-fault driver, is considered an underinsured motorist.
35. As the underinsured insurance carrier, Defendant State Farm is obligated to pay all amounts which Plaintiff is legally entitled to recover for personal injuries, to the extent of his insurance limits.
36. As a direct and proximate result of the circumstances set forth above, Defendant State Farm is liable to Plaintiff in the amount of unpaid benefits and damages and interest on such unpaid benefits and damages.
WHEREFORE, Plaintiff Sunahara prays judgment against Defendant State Farm for damages in an amount yet to be determined, plus interest as provided by law, costs, expert witness fees, and such other and further relief as this Court deems proper and fitting.
PLAINTIFF REQUESTS A TRIAL TO A JURY OF SIX (6) PERSONS.