v. State Farm Mutual Automobile Insurance Company

     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                  July 1, 2021

                                2021COA89

No. 20CA0720, Barnes v. State Farm Mutual Automobile
Insurance Company — Civil Procedure — Failure to State a
Claim Upon Which Relief Can be Granted — Motion to Strike —
Consolidation of Defenses in Motion; Insurance — Motor
Vehicles — Uninsured/Underinsured

     In this declaratory judgment action, a division of the court of

appeals considers whether a district court erred by allowing a

defendant to file a C.R.C.P. 12(b)(5) motion to dismiss after it had

already filed a separate C.R.C.P. 12(f) motion to strike. The division

reasons that, although C.R.C.P. 12(g) requires consolidation of

C.R.C.P. 12 motions, any error by the district court in considering

the defendant’s successive motion was harmless under the

circumstances presented.

     The division also considers plaintiff’s contention that the

district court erred by dismissing her complaint because she
asserted a plausible claim that a form prepared by the defendant

insurance company contained a false or misleading representation

regarding uninsured and underinsured motorist coverage. The

division rejects plaintiff’s contention that, by disclosing that such

coverage follows the insured person rather than the insured vehicle,

the defendant became legally obligated to further disclose

information about “stacking” coverage. The division affirms the

district court’s judgment dismissing the complaint.
COLORADO COURT OF APPEALS                                          2021COA89


Court of Appeals No. 20CA0720
City and County of Denver District Court No. 19CV32024
Honorable Eric M. Johnson, Judge


Julie Barnes,

Plaintiff-Appellant,

v.

State Farm Mutual Automobile Insurance Company, an Illinois Corporation,

Defendant-Appellee.


                            JUDGMENT AFFIRMED

                                  Division IV
                          Opinion by JUDGE BROWN
                       Navarro and Casebolt*, JJ., concur

                            Announced July 1, 2021


John L. Springer, Aurora, Colorado, for Plaintiff-Appellant

Patterson Ripplinger, P.C., Franklin D. Patterson, Karl A. Chambers,
Greenwood Village, Colorado, for Defendant-Appellee


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
¶1    In this declaratory judgment action, Julie Barnes appeals the

 district court’s judgment dismissing her complaint against State

 Farm Mutual Automobile Insurance Company (State Farm) for

 failure to state a claim upon which relief can be granted.

¶2    Barnes first contends that the district court erred by allowing

 State Farm to file a C.R.C.P. 12(b)(5) motion to dismiss after it had

 already filed a separate C.R.C.P. 12(f) motion to strike because

 C.R.C.P. 12(g) requires consolidation of C.R.C.P. 12 motions.

 Although we agree that the court erred, under the circumstances

 discussed below, we conclude the error was harmless.

¶3    Barnes next contends that the district court erred by

 dismissing her complaint because she asserted a plausible claim

 that a State Farm form contained a false or misleading

 representation — a “half-truth” — regarding uninsured and

 underinsured motorist (UM) coverage. Specifically, she contends

 that, by disclosing that UM coverage follows the insured person

 rather than the insured vehicle, see § 10-4-609(1)(a), C.R.S. 2020,

 State Farm became legally obligated to further disclose that an

 insured who rejects UM coverage on one of multiple policies loses

 the ability to “stack” available UM coverage. We reject this


                                   1
 contention and affirm the district court’s judgment dismissing her

 complaint.

                            I.   Background

¶4    Colorado law requires that an insurer offer UM coverage for

 each automobile liability policy that it issues. § 10-4-609(1)(a). An

 insured may reject such coverage in writing. Id.

¶5    State Farm issued Barnes two automobile liability insurance

 policies — one for a 2006 Honda and one for a 1990 Geo. After

 Barnes visited her insurance agent to discuss her automobile

 coverage, State Farm sent Barnes a form titled “Colorado

 Automobile Coverages Acknowledgment of Coverage Selection or

 Rejection” (UM Rejection Form). Barnes signed the UM Rejection

 Form, rejecting UM coverage on the Geo policy.

¶6    The two policies were in effect when Barnes sustained serious

 bodily injuries in a car accident caused by another driver. Because

 her damages exceeded the amount she recovered from the at-fault

 driver, Barnes sought the $100,000 limit of UM coverage under the

 Honda policy and $70,000 (of what she believed was a $100,000

 limit) of UM coverage under the Geo policy. State Farm paid Barnes

 $100,000, the maximum amount of UM coverage available under


                                   2
 the Honda policy; but because she had rejected UM coverage on the

 Geo policy, State Farm declined to pay her anything more. Had

 Barnes not rejected UM coverage on the Geo policy, she alleges that

 she would have been able to “stack” the UM coverage, meaning that

 she would have been entitled to UM coverage on both policies,

 resulting in a total of $200,000 in available UM coverage.

¶7    Barnes filed a declaratory judgment action against State Farm,

 seeking a declaration that the UM Rejection Form was invalid or

 unenforceable. After Barnes filed an amended complaint, State

 Farm filed a C.R.C.P. 12(f) motion to strike certain paragraphs of

 the amended complaint or, alternatively, to require Barnes to state

 facts to support the statements contained in those paragraphs. The

 district court denied the motion to strike.

¶8    State Farm then filed a C.R.C.P. 12(b)(5) motion to dismiss the

 amended complaint for failure to state a claim upon which relief

 can be granted. Approximately two weeks later, State Farm filed an

 answer to Barnes’ amended complaint. Barnes opposed the motion

 to dismiss. After conducting a hearing, the district court granted

 the motion and dismissed the amended complaint.




                                   3
                                II.   Analysis

                  A.    Successive C.R.C.P. 12 Motions

¶9     Barnes first contends that the district court erred by allowing

  State Farm to file a C.R.C.P. 12(b)(5) motion to dismiss after it had

  already filed a separate C.R.C.P. 12(f) motion to strike. She argues

  that, pursuant to C.R.C.P. 12(g), the court should have disallowed

  the motion to dismiss because it was not joined with the earlier-

  filed motion to strike. We perceive no reversible error.

                         1.   Standard of Review

¶ 10   We interpret the Colorado Rules of Civil Procedure de novo,

  DCP Midstream, LP v. Anadarko Petroleum Corp., 

, ¶ 24,

  according to their commonly understood and accepted meanings,

  Antero Res. Corp. v. Strudley, 

, ¶ 15. We do not add

  words or provisions to a rule. 

 But we construe the rules

  liberally “to effectuate their objective to secure the just, speedy, and

  inexpensive determination of every case and their truth-seeking

  purpose.” 

 (quoting DCP Midstream, ¶ 24); see also C.R.C.P. 1.

¶ 11   Because the Colorado Rules of Civil Procedure are patterned

  on the Federal Rules of Civil Procedure, “we may also look to the




                                      4
  federal rules and decisions for guidance.” Garrigan v. Bowen, 

, 235 (Colo. 2010).

¶ 12   On appeal, we disregard any error or defect in the proceedings

  that did not affect the substantial rights of the parties. C.R.C.P. 61.

  An error affects the substantial rights of the parties if it

  “substantially influenced the outcome of the case or impaired the

  basic fairness of the trial itself.” Bernache v. Brown, 

, ¶ 26 (quoting Laura A. Newman, LLC v. Roberts, 

,

  ¶ 24).

                            2.   Applicable Law

¶ 13   C.R.C.P. 12(b) provides that every defense to a claim shall be

  asserted in the responsive pleading, except that certain defenses,

  including failure to state a claim upon which relief can be granted,

  “may at the option of the pleader be made by separate motion.”

  C.R.C.P. 12(c) provides that, “[a]fter the pleadings are closed . . . ,

  any party may move for judgment on the pleadings.” And C.R.C.P.

  12(f) authorizes a party to move to strike “any redundant,

  immaterial, impertinent, or scandalous matter” from any pleading.

¶ 14   C.R.C.P. 12(g) states as follows:




                                      5
             A party who makes a motion under this Rule
             may join with it any other motions herein
             provided for and then available to that party.
             If a party makes a motion under this Rule but
             omits therefrom any defense or objection then
             available to that party which this Rule permits
             to be raised by motion, that party shall not
             thereafter make a motion based on the defense
             or objection so omitted, except a motion as
             provided in section (h)(2) of this Rule on any of
             the grounds there stated.

  C.R.C.P. 12(h)(2), in turn, states as follows:

             A defense of failure to state a claim upon
             which relief can be granted . . . may be made
             in any pleading permitted or ordered under
             Rule 7(a), or by motion for judgment on the
             pleadings, or at the trial on the merits.

   3.    Any Error by the District Court in Considering State Farm’s
                      Motion to Dismiss Was Harmless

¶ 15    Although we disagree with the district court’s interpretation of

  C.R.C.P. 12(g), we conclude that any error by the district court in

  considering State Farm’s second C.R.C.P. 12 motion was harmless.

¶ 16    In rejecting Barnes’ contention that State Farm was not

  permitted to file a separate C.R.C.P. 12(b)(5) motion after it had

  already filed a C.R.C.P. 12(f) motion, the district court explained,

             [I]f you’re going to bring a motion under one
             subparagraph of [Rule] 12, then you need to
             bring everything that fits under that one
             subparagraph, but that does not mean you


                                     6
             have to bring all Rule 12 motions. You can,
             but you do not have to. So, I disagree with
             that interpretation of Rule 12, and I will not
             disallow [State Farm’s] motion under
             [Rule]12(b)(5) for failure to state a claim just
             because previously there had been a . . .
             motion to strike under [Rule] 12(f).

  (Emphasis added.)

¶ 17   We read the rule differently. C.R.C.P. 12(g) plainly states that

  a party who makes a motion “under this Rule” but omits a then-

  available defense or objection allowed to be raised by motion “shall

  not thereafter” make a motion based on the omitted defense or

  objection. Section (g) nowhere states that only defenses and

  objections allowable under “one subparagraph” must be brought in

  a single motion. Instead, section (g) generally prohibits serial

  C.R.C.P. 12 motions regardless of which section or subsection

  permits the defense or objection being asserted; it requires

  consolidation of all C.R.C.P. 12 motions. C.R.C.P. 12(g); see also

  Fed. R. Civ. P. 12(g)(2); Albers v. Bd. of Cnty. Comm’rs, 

, 701 (10th Cir. 2014).

¶ 18   But C.R.C.P. 12(g) contains an express exception to the

  general rule for “a motion as provided in section (h)(2) of this Rule

  on any of the grounds there stated.” And section (h)(2) permits a


                                      7
  party to assert the defense of failure to state a claim upon which

  relief can be granted, among other ways, “by motion for judgment

  on the pleadings.” C.R.C.P. 12(h)(2). Thus, even if a party made an

  earlier C.R.C.P. 12 motion, section (g) does not preclude it from

  making a subsequent motion for judgment on the pleadings

  asserting the defense of failure to state a claim. C.R.C.P. 12(g),

  (h)(2); see also BSLNI, Inc. v. Russ T. Diamonds, Inc., 

,

  ¶ 11.

¶ 19      Indeed, if a defendant files a C.R.C.P. 12(b)(5) motion to

  dismiss for failure to state a claim after it has filed its answer, the

  court should treat the motion as a C.R.C.P. 12(c) motion for

  judgment on the pleadings. See City of Aurora v. 1405 Hotel, LLC,

  

, ¶ 16 n.3 (“Technically, ‘a post-answer [C.R.C.P.

  12(b)(5)] motion is untimely and . . . some other vehicle, such as a

  motion for judgment on the pleadings or for summary judgment,

  must be used to challenge the plaintiff’s failure to state a claim for

  relief.’” (quoting 5B Charles Alan Wright & Arthur R. Miller, Federal

  Practice and Procedure § 1357, at 408 (3d ed. 2004))); BSLNI, Inc.,

  ¶ 11 (“[W]hen filed after an answer, a defendant’s motion to dismiss

  for failure to state a claim upon which relief can be granted is


                                       8
  properly addressed as a motion for judgment on the pleadings

  under C.R.C.P. 12(c).”); Shaw v. City of Colorado Springs, 

, 387 (Colo. App. 1984) (affirming trial court’s ruling on

  defendant’s “motion to dismiss” although motion “more accurately

  constituted a motion for judgment on the pleadings”).

¶ 20   Barnes argues, however, that the court could not have treated

  State Farm’s motion as one for judgment on the pleadings because

  State Farm filed the motion before it filed its answer. It is true that

  C.R.C.P. 12(c) permits a motion for judgment on the pleadings only

  “[a]fter the pleadings are closed.” See 1405 Hotel, LLC, ¶ 16 n.3

  (noting that trial court could not have considered defendant’s

  motion under C.R.C.P. 12(c) where plaintiffs had not responded to

  the defendant’s counterclaims when the motion was filed). But

  before Barnes even responded to the motion, State Farm filed its

  answer and the pleadings closed, effectively curing any procedural

  defect caused by the timing of the motion relative to the answer.

  And, because the standard for resolving a motion for judgment on

  the pleadings is consistent with that employed in resolving a motion

  to dismiss, BSLNI, Inc., ¶ 13, requiring State Farm to file a new

  motion for judgment on the pleadings after it filed its answer would


                                     9
  have served no practical purpose, see Walzer v. Muriel Siebert & Co.,

  447 F. App’x 377, 384 (3d Cir. 2011). It also would have been

  antithetical to the purpose of the civil rules “to secure the just,

  speedy, and inexpensive determination of every action.” C.R.C.P.

  1(a). See also In re Apple iPhone Antitrust Litig., 

, 318

  (9th Cir. 2017) (“Denying late-filed [Fed. R. Civ. P.] 12(b)(6) [the

  federal counterpart to C.R.C.P. 12(b)(5)] motions and relegating

  defendants to the three procedural avenues specified in Rule

  12(h)(2) can produce unnecessary and costly delays, contrary to the

  direction of Rule 1.”), aff’d sub nom. Apple Inc. v. Pepper, 587 U.S.

  ___, 

 (2018).

¶ 21   To be clear, there may be circumstances in which a trial

  court’s erroneous consideration of serial C.R.C.P. 12 motions may

  affect the substantial rights of the parties and warrant reversal.

  But in the circumstances presented here, any technical error by the

  district court in considering State Farm’s successive motion to

  dismiss was harmless. See Albers, 771 F.3d at 704 (concluding any

  error by district court in considering the defendant’s second motion

  to dismiss was harmless because the same argument could have

  been presented in a motion for judgment on the pleadings); Walzer,


                                     10
  447 F. App’x at 384 (any technical error in entertaining the

  defendants’ successive motion to dismiss was harmless).

                    B.    Dismissal of the Complaint

¶ 22   Barnes next contends that the district court erred by

  dismissing her complaint. We disagree.

              1.   Standard of Review and Applicable Law

¶ 23   Whether we treat State Farm’s motion as a motion to dismiss

  or as a motion for judgment on the pleadings, we review the district

  court’s order de novo, employing the same standards as the district

  court. See Melat, Pressman & Higbie, L.L.P. v. Hannon L. Firm,

  L.L.C., 

, ¶¶ 16-17. The standard we use to review a

  motion for judgment on the pleadings is consistent with the

  standard for a motion to dismiss. BSLNI, Inc., ¶ 13.

¶ 24   In evaluating a C.R.C.P. 12(b)(5) motion to dismiss for failure

  to state a claim, we accept as true the factual allegations in the

  complaint and, viewing them in the light most favorable to the

  plaintiff, determine whether the complaint states a plausible claim

  for relief. Andres Trucking Co. v. United Fire & Cas. Co., 

, ¶ 14 (citing Warne v. Hall, 

, ¶¶ 9, 24). “A claim

  has facial plausibility when the plaintiff pleads factual content that


                                    11
  allows the court to draw the reasonable inference that the

  defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

  

, 678 (2009). We need not accept as true legal

  conclusions masquerading as factual allegations. Id.; Warne, ¶ 9.

¶ 25   Similarly, in evaluating a C.R.C.P. 12(c) motion for judgment

  on the pleadings, we construe the allegations of the pleadings

  strictly against the movant, consider the factual allegations in the

  complaint as true, and grant the motion only if the matter can be

  determined on the pleadings. Melat, Pressman & Higbie, ¶ 17.

  2.   The District Court Properly Dismissed the Amended Complaint

¶ 26   The UM Rejection Form Barnes signed provides, in relevant

  part, as follows:

             Uninsured Motor Vehicle Coverage provides
             protection for persons insured who are legally
             entitled to recover damages for bodily injury,
             sickness, or disease, including death, from
             owners or operators of either uninsured motor
             vehicles or underinsured motor vehicles. The
             named insured may reject such coverage by
             submitting written rejection to the insurer.

             Uninsured Motor Vehicle Coverage for bodily
             injury, sickness, or disease, including death,
             selected on one policy insuring a motor vehicle
             owned and insured by you or any family
             member who resides in your household will
             apply to any accident in which the selected


                                    12
            Uninsured Motor Vehicle Coverage is payable
            for that bodily injury, sickness, or disease,
            including death. The described vehicle on that
            one policy need not be involved in the accident
            for Underinsured Motor Vehicle Coverage to
            apply.

¶ 27   In her amended complaint, Barnes sought a declaration that

  the UM Rejection Form was invalid or unenforceable because the

  information contained in the second paragraph quoted above

  constituted a false or misleading representation.1 Barnes concedes

  that the second paragraph is a truthful statement regarding how

  UM coverage works. But she contends that, once State Farm

  communicated the information in the second paragraph, it had an

  affirmative duty to also disclose “the Stacking Information,” which

  she defined in her amended complaint as

            the opportunity that an insured has to
            aggregate or combine the UM coverage limits
            on two or more separate automobile or motor
            vehicle liability insurance policies for the
            purpose of increasing the total amount of
            available UM coverage that will apply to any
            accident where an insured sustains bodily
            injury as the result of the fault of the driver or
            operator of an uninsured or underinsured

  1 Barnes also sought a declaration that the UM Rejection Form was
  void as against public policy, but she did not allege any facts in
  support of that requested declaration and she does not raise the
  issue on appeal.

                                    13
             motor vehicle and the primary policy provides
             inadequate coverage to fully compensate the
             insured for his or her bodily injury.

  She contends that State Farm was required to advise her that, by

  rejecting UM coverage on a policy, she loses the ability to stack her

  UM coverage and reduces the total amount of UM coverage available

  to her. In the absence of the Stacking Information, Barnes argues,

  the second paragraph creates a false or misleading impression — a

  “half-truth” — that if an insured rejects UM coverage on all but one

  of her multiple policies, she will be left with the same amount of UM

  coverage but at a reduced cost.

¶ 28   To establish a claim for fraudulent misrepresentation, a

  plaintiff must prove that (1) the defendant made a fraudulent

  misrepresentation of material fact; (2) the plaintiff relied on the

  misrepresentation; (3) the plaintiff had a right to rely on or was

  justified in relying on the misrepresentation; and (4) the plaintiff’s

  reliance resulted in damages. Rocky Mountain Expl., Inc. v. Davis

  Graham & Stubbs LLP, 

, ¶ 53.

¶ 29   Relying on the Restatement (Second) of Torts § 529 (Am. Law

  Inst. 1977), Barnes contends that the second paragraph of the UM

  Rejection Form constitutes a fraudulent misrepresentation because


                                     14
  it is a “half-truth.” Section 529 of the Restatement provides: “A

  representation stating the truth so far as it goes but which the

  maker knows or believes to be materially misleading because of his

  failure to state additional or qualifying matter is a fraudulent

  misrepresentation.”

¶ 30   To establish a claim for fraudulent concealment, a plaintiff

  must prove (1) concealment of a material fact that in equity and

  good conscience should be disclosed; (2) knowledge on the part of

  the party against whom the claim is asserted that such a fact is

  being concealed; (3) ignorance of that fact on the part of the one

  from whom the fact is concealed; (4) the intention that the

  concealment be acted upon; and (5) action on the concealment

  resulting in damages. Rocky Mountain Expl., Inc., ¶ 56.

¶ 31   To succeed on a claim for fraudulent concealment or

  nondisclosure, a plaintiff must show that the defendant had a duty

  to disclose the material information. Id. Whether the defendant

  has a duty to disclose a particular fact is a question of law we

  decide de novo. Poly Trucking, Inc. v. Concentra Health Servs., Inc.,

  

, 564 (Colo. App. 2004).




                                    15
¶ 32   Generally, a defendant has a duty to disclose material facts

  that in equity or good conscience should be disclosed. 

 A party

  to a business transaction has a duty to exercise reasonable care to

  disclose to the other party, as relevant here, “matters known to him

  that he knows to be necessary to prevent his partial or ambiguous

  statement of the facts from being misleading.” Restatement

  (Second) of Torts § 551(2)(b); see also Poly Trucking, 

;

  Berger v. Sec. Pac. Info. Sys., Inc., 

, 1383 (Colo. App.

  1990) (“[A] party has a duty to disclose if he has stated facts that he

  knows will create a false impression unless other facts are

  disclosed.”).

¶ 33   It is unclear to us whether the claim underlying Barnes’

  request for declaratory judgment is a claim for fraudulent

  misrepresentation or fraudulent concealment. Either way, the

  dispositive question is the same: Is the second paragraph of the UM

  Rejection Form misleading in the absence of information about an

  insured’s ability to stack UM coverage on multiple policies? If the

  answer is no, then State Farm did not make a fraudulent

  misrepresentation of material fact (resulting in Barnes’ failure to

  state a claim for fraudulent misrepresentation) and did not have a


                                    16
  duty to disclose additional information (resulting in Barnes’ failure

  to state a claim for fraudulent concealment). For two reasons, we

  answer this question in the negative.

¶ 34   First, the second paragraph of the UM Rejection Form is a

  neutral, accurate statement of the law regarding how UM coverage

  applies. See § 10-4-609(1)(a) (requiring insurers to give customers

  an option to purchase UM coverage “for the protection of persons”);

  see also DeHerrera v. Sentry Ins. Co., 

, 176 (Colo. 2001)

  (“We hold that the language of the UM/UIM statute and the purpose

  of that statute require that UM/UIM insurance apply to an insured

  person when injured by a financially irresponsible motorist,

  irrespective of the vehicle the injured insured occupies at the time

  of injury.”); Mullen v. Allstate Ins. Co., 

, 172 (Colo. App.

  2009) (“When one vehicle is insured in a single-vehicle policy, the

  UM/UIM coverage applies to the insured person who is injured

  ‘irrespective of the vehicle the injured insured occupies at the time

  of the injury.’” (quoting DeHerrera, 30 P.3d at 176)); Briggs v. Am.

  Nat’l Prop. & Cas. Co., 

, 1184 (Colo. App. 2009) (UM

  coverage follows the person “in any vehicle they occupy when

  injured, no matter who owns the vehicle or whether it is insured on


                                    17
  the owner’s policy.”). The second paragraph is not ambiguous or

  misleading regarding its topic.

¶ 35   Second, the Stacking Information that Barnes argues State

  Farm should have disclosed is unrelated to the subject covered by

  the second paragraph, so the second paragraph does not amount to

  a “half-truth” — either about its subject or about stacking. An

  insurance policy is a contract, which should be interpreted

  consistently with the well-settled principles of contractual

  interpretation. Allstate Ins. Co. v. Huizar, 

, 819 (Colo.

  2002). Our goal is to give effect to the contracting parties’

  intentions and reasonable expectations. Thompson v. Md. Cas. Co.,

  

, 501 (Colo. 2004). To ascertain the parties’ intent, we

  look to the plain language of the policy and give the words their

  plain, generally accepted meanings, unless the policy indicates that

  another meaning is intended. Owners Ins. Co. v. Dakota Station II

  Condo. Ass’n, 

, ¶ 32.

¶ 36   As noted, the second paragraph addresses the unique nature

  of UM coverage following the person insured in any vehicle they

  occupy when injured. This is a distinct concept from “stacking,”

  which is defined by section 10-4-402(3.5), C.R.S. 2020, as


                                    18
  “aggregating, combining, multiplying, or pyramiding limits of

  separate policies providing uninsured and underinsured motorist

  coverage as provided in section 10-4-609.”

¶ 37   In her amended complaint, Barnes alleged that the second

  paragraph,

            by informing the named insured that UM
            coverage on one policy will apply to any
            accident and that the vehicle described in the
            policy need not be involved in the accident,
            without also informing the named insured
            about the Stacking Information and the overall
            UM coverage that would be lost to an insured
            if the UM Rejection Form was signed, created
            the false and/or materially misleading
            impression that no benefit would be derived
            from having UM coverage on more than one of
            multiple policies and that by having UM
            coverage on one of multiple policies any
            insured would have the same total amount of
            available UM coverage, which would apply to
            any accident, but at a reduced cost.

¶ 38   But the second paragraph says nothing about the benefits or

  detriments of selecting or rejecting UM coverage on multiple

  policies. It does not suggest that, by rejecting UM coverage on one

  policy, the insured would be entitled to the same total amount of

  UM coverage at a reduced cost (i.e., without paying a premium).

  Barnes’ interpretation of the second paragraph is not reasonable.



                                   19
  See Weaver v. State Farm Mut. Auto. Ins. Co., Civ. A. No. 17-cv-

  02208-MEH, 

, *4 (D. Colo. Mar. 27, 2018)

  (unpublished opinion) (reasoning that the same language at issue

  here “does not disclose the positive or negative consequences of

  rejecting UM coverage,” but instead “accurately describes . . . the

  nature of UM insurance”); see also Huizar, 52 P.3d at 819

  (“[S]trained constructions should be avoided.”).

¶ 39   The only Colorado case to address section 529 of the

  Restatement (Second) of Torts, the section on which Barnes relies

  most heavily, is Eckley v. Colorado Real Estate Commission, 

 (Colo. 1988). In Eckley, a disbursement agreement for the

  sale of a lounge authorized the real estate broker who drafted the

  agreement to use funds to pay “for the whiskey, wine and beer,” but

  the funds were actually used to bring the premises at issue “into

  compliance.” 

. So, “the fact that payments were made . . .

  that were of a different nature from those listed in the agreement

  made the disbursement agreement misleading.” 

. The

  subject of the representation and the subject of the omission were

  the same — categories of items for which funds would be used.




                                    20
  Under such circumstances, the partial or incomplete representation

  regarding disbursement of funds was misleading.

¶ 40   Similarly, in Kannavos v. Annino, 

, 713 (Mass.

  1969), the court held that a seller had made a deceptive disclosure

  when it advertised to investors that houses were being rented to the

  public as multi-dwelling properties without revealing that multi-

  dwelling use for houses actually violated the local zoning ordinance.

  Thus, the subject of the representation and the subject of the

  omission were the same — use of the buildings. The court clarified

  that if the seller had been silent regarding how the property could

  be used, it would not have made any misrepresentation. 

.

¶ 41   Likewise, in Junius Construction Co. v. Cohen, 

,

  674 (N.Y. 1931), the court held that, because a seller had truthfully

  informed a prospective buyer that certain streets would bisect the

  tract of land for sale, the seller could not “stop halfway” by failing to

  mention that another street also was projected to do the same. The

  court clarified that the seller was not under a duty to mention the

  projected street at all. 

 But because the seller disclosed certain

  projected streets without mentioning a similar street, its

  representation was misleading. 

 Again, the subject of the


                                     21
  representation and the subject of the omission were the same —

  projected streets affecting the property.

¶ 42   Here, in contrast to the cases cited by Barnes, the subject of

  State Farm’s representation and the subject of the alleged omission

  were different. State Farm did not make any representations about

  stacking. Instead, the UM Rejection Form explained that UM

  coverage follows the person and not the vehicle. If State Farm had

  failed to disclose something related to that subject, such as a

  circumstance under which the UM coverage would not follow the

  person, Barnes might have validly claimed misrepresentation. But

  whether Barnes is entitled to stack UM coverage on multiple

  policies in the event of an accident is a different concept from the

  personal nature of UM coverage. The fact that stacking is possible

  does nothing to undermine the content of the second paragraph of

  the UM Rejection Form. What State Farm included in the UM

  Rejection Form is qualitatively different from the Stacking

  Information Barnes claimed it should have disclosed.

¶ 43   So, even assuming the truth of the allegations in the amended

  complaint, Barnes has failed to state a plausible claim for relief.

  She failed to allege facts that would allow us to draw the reasonable


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  inference that the second paragraph of the UM Rejection Form was

  a “half-truth” amounting to a fraudulent misrepresentation,

  resulting in her failure to state a claim for fraudulent

  misrepresentation. And she failed to allege facts establishing that

  State Farm had a legal duty to disclose additional information with

  respect to the second paragraph of the UM Rejection Form,

  resulting in her failure to state a claim for fraudulent concealment.

  The district court did not err by dismissing her complaint.2

                              III.   Conclusion

¶ 44   We affirm the district court’s judgment dismissing Barnes’

  amended complaint.

       JUDGE NAVARRO and JUDGE CASEBOLT concur.




  2 Barnes made six interrelated arguments challenging the district
  court’s order dismissing her complaint. Because we have affirmed
  on the basis that Barnes failed to allege facts to support at least one
  element of either claim underlying her request for declaratory
  judgment, we need not address her remaining contentions.

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