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Loza v. State Farm Mutual Automobile Insurance Co.11/13/1997
We conclude there was no error in giving this instruction.
The "thin skull" plaintiff rule is a tort concept which prevents a tortfeasor from arguing that the plaintiff's injuries would have been less severe had the plaintiff not been more susceptible to injury . Schafer v. Hoffman, 831 P.2d 897 (Colo. 1992). In other words, the tortfeasor takes the plaintiff as is.
A division of this court has held that it is appropriate to give the above instruction in a breach of insurance contract action. Peiffer v. State Farm Mutual Automobile Insurance Co., 940 P.2d 967 (Colo. App. 1996) (cert. granted July 28, 1997). The apparent rationale of Peiffer is that an insurer responsible for providing PIP benefits takes the insured injured party as it finds him or her.
We are persuaded by the rationale of Peiffer, and follow it.
III.
State Farm next contends that the trial court committed reversible error by refusing to admit evidence that State Farm paid in excess of $30,000 in PIP benefits on a timely basis, and evidence that the insured had received in excess of $50,000 in personal injury settlements with the other driver and underinsured motorist benefits, both from State Farm. We disagree.
We note at the outset that, during cross-examination, insured testified that she had resolved other claims against the other driver and State Farm. She further stated that she had paid the share of the TMD treatment costs apportioned to her by State Farm, that her credit rating had not been damaged, that she had received all of the recommended treatment for the TMD, and that she had been treated for other injuries or complaints arising out of the accident.
A.
With respect to the amount of PIP benefits paid by State Farm without objection, insured argued to the trial court that the evidence should be excluded because it was irrelevant pursuant to CRE 401, and that the prejudice outweighed any relevancy pursuant to CRE 403.
In its pleadings, State Farm argued the evidence should be admitted to rebut the insured's claims for emotional distress and to show duplicative treatments which were not reasonable and necessary. At the hearing, however, the issue was narrowed to whether the evidence was admissible to show State Farm acted in good faith with respect to many other claims, to rebut insured's contention that it acted in bad faith in failing to pay a particular claim.
As the trial court stated:
THE COURT: The question really here is whether State Farm can use payments as evidence of good faith as a defense for bad faith nonpayment.
[STATE FARM'S COUNSEL]: That's what it boils down to.
THE COURT: The way I would look at this is that would it be proper for a jury to say, well, they have paid a lot of claims, and so we think State Farm was acting in good faith generally, therefore, they couldn't have been acting in bad faith with regard to this one particular bill either. There has to be non-payments generally and general bad faith or there is no bad faith.
I don't think I would allow that. It would not be proper for a jury to say that. I think that they need to decide whether the . . . nonpayment of this particular bill was in bad faith or not, because, otherwise, an insurance company gets the benefit of a finding of good faith any time they--they pay a large number of the bills even if there's evidence that shows that the nonpayment of a particular bill was done in bad faith. So I don't think that evidence is admissible.
While no rule of evidence was cited by the trial court in rejecting the evidence, we conclude that the evidence w
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