Colorado § 10-3-1117 Requires Full-Policy Production for Any Potentially Relevant Coverage and Imposes a Single $100/Day Penalty Per Claim

1. Introduction

This case arises from a bicycle–truck collision in Pueblo, Colorado. Plaintiff Carl Fogel sought insurance-policy disclosures from the tortfeasor’s insurer, Shelter Mutual Insurance Company, under Colorado’s insurer-disclosure statute, Colo. Rev. Stat. § 10-3-1117. The statute requires an insurer, upon a claimant’s written request, to provide specified information—including “[a] copy of the policy”—for “each known policy of insurance of the named insured … that is or may be relevant to the claim,” within 30 days. If the insurer violates the statute, it owes “one hundred dollars per day” beginning on the 31st day until it provides the required information, plus attorney fees and costs incurred enforcing the penalty.

Fogel learned the insured (John Catalano) was listed on four Shelter policies: one covering the Ford Ranger driven in the collision and three other vehicle-related policies (including one where Catalano was an additional insured). Shelter promptly produced only the Ranger policy and, for more than a year, withheld copies of the other three policies—though it later sent a letter quoting purportedly common policy-form language and asserting those policies did not cover the loss.

Key issues

• Relevance scope: Are non-accident vehicle policies “policies … that is or may be relevant to the claim” under § 10-3-1117(2)(a)?
• Form of disclosure: Does the statute require an actual “copy” of each policy (i.e., the full policy), or can an insurer satisfy it with excerpts or a summary?
• Penalty structure: Is the $100/day penalty imposed once per claim or multiplied per policy/request?
• Accrual cutoff: Did Shelter’s July 2022 explanatory letter stop penalty accrual through compliance or “substantial compliance”?
• Fees: Does § 10-3-1117(3) authorize appellate attorney fees for successfully defending the penalty judgment?

2. Summary of the Opinion

The Tenth Circuit affirmed the district court’s liability finding and the $35,600 penalty award ($100/day for 356 days, from day 31 after the request until the date full copies were produced). It also deemed Fogel entitled to appellate fees and costs and remanded for further proceedings on fee calculation.

3. Analysis

3.1. Precedents Cited

Although the central questions were statutory-interpretation issues under Colorado law, the court’s reasoning was structured by a chain of precedent governing (i) Erie prediction, (ii) Colorado interpretive methodology, (iii) avoidance of over-reading penalty statutes, and (iv) substantial compliance.

A. Colorado-law interpretive framework in federal diversity cases

• Etherton v. Owners Ins. — Cited for the proposition that a federal court interprets state statutes “to reach the same result that would be reached in state court,” deferring to the state supreme court when it has spoken and otherwise predicting how it would rule.
• Wade v. EMCASCO Ins. — Used to justify consulting a range of persuasive authorities (including other courts and trends) when predicting state law, though the panel ultimately relied primarily on Colorado authority.
• McWilliams v. Dinapoli and N.H. Ins. v. TSG Ski & Golf — Both emphasize that, absent “convincing evidence” the state supreme court would disagree, intermediate appellate decisions are “highly persuasive.” This principle was pivotal because Colorado’s first appellate construction of the key phrase “is or may be relevant” had just emerged in Bohanan v. Esurance Property & Casualty Insurance.

B. Colorado’s statutory-construction method

• Sentinel Colo. v. Rodriguez — Quoted for Colorado’s text-first approach aimed at effectuating legislative intent.
• People ex rel. B.C.B. — Supplies several core canons: plain meaning; consider the entire statutory scheme; give consistent and harmonious effect; avoid superfluity and absurdity; and, if unambiguous, apply as written without resort to other tools.
• Klinger v. Adams Cnty. Sch. Dist. No. 50 and People v. Jones — Cited to support the move that once the court finds unambiguous text, it does not rely on extratextual aids (including purpose statements and lenity arguments).

C. The key Colorado intermediate appellate authority on “is or may be relevant”

• Bohanan v. Esurance Property & Casualty Insurance — This was the decisive state appellate guide. The Tenth Circuit treated it as strongly persuasive because it was Colorado’s first appellate decision interpreting § 10-3-1117(2)(a)’s “is or may be relevant” language.
  How Bohanan influenced the result: Bohanan held that an insurer cannot avoid disclosure by unilaterally concluding a policy does not cover the loss; the relevance test is not whether coverage ultimately exists, but whether the policy “was or may have been relevant” during the statutory response period—particularly where coverage required analysis or was not immediately clear. The Tenth Circuit found Shelter’s multi-page July letter (quoting and interpreting “intricate policy language”) functionally demonstrated that the non-Ranger policies presented a real coverage question, triggering the statute’s disclosure mandate.

D. Summary judgment and appellate review standards

• Thao v. Grady Cnty. Crim. Just. Auth. — Cited for de novo review of summary-judgment rulings.
• Pirkheim v. First Unum Life Ins. — Cited for the approach to cross-motions: draw reasonable inferences in favor of the party against whom the motion is considered.

E. “One penalty” and anti-“elephants in mouseholes” reasoning

• Stumpf v. Colo. Dep't of Rev., Motor Vehicle Div. (quoting Whitman v. Am. Trucking Ass'ns) — Used to reinforce that if the legislature intended multiple penalties, it would have said so; courts should not find major penalty multipliers hidden in minor wording.
• Smith v. Exec. Custom Homes and Frazier v. People — Deployed in the “absurd results/legislative intent” discussion to reject a reading that would incentivize gamesmanship (repetitive requests to inflate penalties) and potentially distort the insurance market, contrary to the statutory scheme’s broader aims (including § 10-1-101’s policy of reasonable-cost coverage choice).

F. Substantial compliance

• Colorow Health Care v. Fischer — Provided the substantial-compliance factors (extent of noncompliance; whether purpose is substantially achieved; and whether noncompliance reflects good faith or intent to mislead). Even assuming substantial compliance could satisfy § 10-3-1117, Shelter failed under these factors.

G. Fee shifting (including on appeal)

• Banner Bank v. Smith — Cited for the principle that in diversity, state law governs a fee award that is “part and parcel” of the cause of action.
• Town of Erie v. Town of Frederick — Cited for the rule that statutory attorney-fee awards can include reasonable appellate fees under Colorado law.
• Melssen v. Auto-Owners Ins. — Used to support awarding appellate fees for successfully defending an appeal under a related Colorado insurance-fee provision (and by analogy, under § 10-3-1117(3)).
• Stuart v. N. Shore Water & Sanitation Dist. — Cited to limit appellate fees to the successful portion of the appellate work (here, defense of Shelter’s appeal, not Fogel’s unsuccessful cross-appeal).

H. Penal-statute characterization (raised but not decided)

• Weatherill v. State Farm Mut. Auto. Ins. — Mentioned to show that, at least for statute-of-limitations purposes, Colorado’s Court of Appeals held § 10-3-1117 is not “penal.” The Tenth Circuit expressly did not decide whether § 10-3-1117 is penal and thus did not resolve the rule-of-lenity debate.

3.2. Legal Reasoning

A. “Is or may be relevant” is broad and does not turn on ultimate coverage

The panel’s core move was to anchor interpretation in Bohanan v. Esurance Property & Casualty Insurance. From Bohanan, the court extracted several controlling interpretive principles:

• Relevance is assessed ex ante—during the statutory response period—rather than ex post based on the final coverage determination.
• If coverage requires investigation or legal/policy analysis, that fact itself indicates the policy “is or may be relevant.”
• An insurer cannot bypass disclosure by a unilateral no-coverage conclusion; otherwise the statute would be self-defeating, allowing insurers to deny disclosure precisely when the claimant most needs the policy text to evaluate the denial.

Applying these principles, the court found that Shelter’s own conduct—sending a multi-page letter that quoted and interpreted “intricate policy language” to explain why the other policies did not cover—confirmed that the other policies presented a “fundamental question” about potential coverage and therefore met the “is or may be relevant” threshold.

B. “Copy of the policy” means the full policy, not excerpts

The court read “copy” according to ordinary meaning (“duplicate”) and reasoned that excerpts are not duplicates. It also underscored the statutory structure: § 10-3-1117(2)(a) enumerates four discrete items to be produced, with “copy of the policy” as its own requirement. Shelter’s “policy-form excerpts plus assurances” approach, even if informative, was categorically different from what the statute demands.

The court further bolstered its reading with regulatory context: Colo. Code Regs. § 702-5-5-2-03, § 5(C) (2020) required insurers to “provide a copy of the … policy” (excluding declarations page and application). The panel treated this as consistent with “copy” meaning an actual policy reproduction (not a summary or selective quotation). The regulation’s later repeal (December 2025) did not alter the statutory text the court interpreted.

C. One penalty per claim, not per request/policy

The penalty analysis turned on harmonizing § 10-3-1117(3) with the disclosure duty in § 10-3-1117(2)(a). Two ideas drove the conclusion:

1. Textual singularity: § 10-3-1117(3) refers to “the penalty” of “one hundred dollars per day” when an insurer violates the section, without any multiplier language.
2. Scheme coherence: § 10-3-1117(2)(a) imposes an obligation to disclose information for “each known policy … that is or may be relevant” once there is “a written request.” The obligation is not keyed to how many separate requests a claimant sends or how many policies the claimant enumerates. Therefore, tying penalties to the number of claimant requests would misalign incentives and could enable abusive stacking.

The court also invoked Colorado’s avoidance of “illogical or absurd results” (from People ex rel. B.C.B.), reasoning that Fogel’s multiplier theory would allow penalty inflation via redundant requests—contrary to the statutory and broader insurance-code policies.

D. No compliance or substantial compliance via the July 2022 letter

Shelter argued its July letter should stop accrual because it provided the “specified information” in some form. The court rejected that in two steps:

• Strict compliance: The letter did not supply items the statute expressly required (most notably, copies of each policy).
• Substantial compliance (even if available): Using the Colorow Health Care v. Fischer factors, Shelter’s deviation was “stark” (a different “kind,” not merely degree), undermined the statute’s transparency purposes (linked to § 10-3-1101(2)), and did not permit an inference of good-faith compliance given the clarity and ease of producing full policies.

E. Appellate fees for enforcing the penalty

The court treated appellate fee entitlement as a straightforward application of § 10-3-1117(3) plus Colorado fee law: fees “incurred … in enforcing the penalty” include fees for successfully defending the penalty judgment on appeal (per Town of Erie v. Town of Frederick and Melssen v. Auto-Owners Ins.). But it limited the award to the successful portion of the appellate work, excluding time spent on Fogel’s unsuccessful cross-appeal (per Stuart v. N. Shore Water & Sanitation Dist.).

3.3. Impact

A. Practical consequences for Colorado auto-liability claims handling

The decision operationalizes a claimant-friendly disclosure baseline:

• Broad production obligation: If a policy raises a non-frivolous coverage question—especially where the insurer must analyze policy language to deny—then the policy “is or may be relevant,” triggering production.
• No “trust us” disclosures: Excerpts, form snippets, and insurer assurances are not substitutes for full policy copies.
• Real exposure for delay: Because the $100/day penalty runs until full compliance, insurers face meaningful financial consequences for slow-walking policy production, even when their ultimate position is “no coverage.”

B. Penalty calibration: limiting claimant leverage while preserving enforcement

The court’s “one penalty per claim” rule tempers the statute’s coercive potential. While the decision strengthens disclosure duties, it simultaneously blocks a request-stacking strategy that could produce disproportionate penalties unrelated to informational harm. In effect, the panel:

• Increased certainty about penalty magnitude (tied to time-to-compliance, not number of letters).
• Preserved deterrence because penalties still accrue until full production.

C. Interaction with Bohanan and the possibility of Colorado Supreme Court review

The opinion’s reliance on Bohanan v. Esurance Property & Casualty Insurance is significant because Bohanan had a cert petition pending (“cert. filed”). If the Colorado Supreme Court later narrows or expands Bohanan’s reading of “is or may be relevant,” that would directly affect the durability of the Tenth Circuit’s Erie prediction. Still, unless and until the Colorado Supreme Court says otherwise, the combined reasoning of Bohanan and Fogel provides a robust roadmap for trial courts.

4. Complex Concepts Simplified

• “Is or may be relevant”: A policy does not have to definitively cover the accident. If, at the time of the request, the policy could plausibly matter to the claim (including because coverage requires analysis), it must be disclosed.
• “Copy of the policy”: The claimant is entitled to the actual policy text—i.e., the full document—rather than selected quotations or a summary.
• Penalty accrual: The $100/day starts on day 31 after the insurer receives the written request and continues until the insurer provides the required information.
• One penalty per claim: Even if multiple policies are involved (or multiple requests are sent), the statute imposes a single $100/day penalty stream tied to the insurer’s failure to complete the required disclosure for the claim.
• Substantial compliance: Sometimes the law tolerates minor deviations if the purpose of a requirement is still met. Here, even under that forgiving standard, failing to send the actual policies was too large a deviation.
• Appellate attorney fees: When a statute authorizes fees to enforce a right, courts may award the fees incurred on appeal if the party successfully defends the judgment enforcing that right.

5. Conclusion

Fogel v. Shelter Mutual Insurance Company delivers a clear, claimant-protective reading of Colorado’s insurance-disclosure regime: when a claimant requests information under § 10-3-1117, insurers must produce full copies of each known policy that could matter to the claim, and they cannot substitute excerpts or unilateral coverage conclusions for disclosure. At the same time, the court constrains penalty escalation by holding that § 10-3-1117(3) creates a single $100/day penalty per claim rather than multiple penalties keyed to the number of requests or policies. The decision thus strengthens transparency while maintaining proportionality in statutory enforcement, and it signals that insurers who delay producing complete policies risk both accruing penalties and paying attorney fees—including on appeal.