24CA2026 Mayfield v DeLaCroix 02-12-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA2026 Boulder County District Court No. 22CV30463 Honorable Elizabeth Beebe Volz, Judge
Douglas Mayfield and Amanda Mayfield,
Plaintiffs-Appellants,
v.
Nancy DeLaCroix; MetLife Auto & Home Insurance Agency n/k/a Farmers General Insurance Agency, Inc., a Rhode Island corporation; American Strategic Insurance Corp. d/b/a Progressive Home, a Florida corporation; and Marshall & Swift/Boeckh, LLC, a Delaware corporation,
Defendants-Appellees.
JUDGMENT AFFIRMED
Division II Opinion by JUDGE FOX Kuhn and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 12, 2026
Howard O. Bernstein, P.C., Howard O. Bernstein, Shirin Chahal, Boulder, Colorado; The Baumberger Law Firm, LLC, Robert D. Baumberger, Pueblo, Colorado, for Plaintiffs-Appellants
Freeman Mathis & Gary, LLP, Robert J. Zavaglia, Jr., Chayla A. Witherspoon, Denver, Colorado, for Defendant-Appellee Nancy DeLaCroix
Gorden Rees Scully Mansukhani LLP, John R. Mann, Melissa A. Wiese, Andrew K. Lavin, Denver, Colorado, for Defendant-Appellee MetLife Auto & Home Insurance Agency n/k/a Farmers General Insurance Agency, Inc. Womble Bond Dickinson (US) LLP, Holly C. White, Elizabeth Michaels, Frances Scioscia Staadt, Denver, Colorado, for Defendant-Appellee American Strategic Corp. d/b/a Progressive Home
Troutman Pepper Hamilton Sanders LLP, Justin D. Balser, Andrea M. Hicks, Irvine, California; Troutman Pepper Hamilton Sanders LLP, Timothy J. St. George, Richmond, Virginia, for Defendant-Appellee Marshall & Swift/Boeckh, LLC ¶1 This appeal stems from a dispute over an insurance policy
plaintiffs, Douglas and Amanda Mayfield, owned when Colorado’s
Marshall Fire destroyed their home. The Mayfields appeal the
district court’s orders awarding summary judgment to defendants,
Nancy DeLaCroix; MetLife Auto & Home Insurance Agency n/k/a
Farmers General Insurance Agency, Inc. (MetLife); American
Strategic Insurance Corp. d/b/a Progressive Home (Progressive);
and Marshall & Swift/Boeckh, LLC (MSB). For the following
reasons, we affirm.
I. Background
¶2 The Mayfields owned a home in Louisville, Colorado.
DeLaCroix, a licensed insurance agent, assisted the Mayfields in
obtaining homeowners’ insurance for this property from 2014 to
2019. In 2019, at the alleged recommendation of DeLaCroix, the
Mayfields changed their home insurance provider from MetLife to
Progressive. DeLaCroix represented that the Progressive policy
offered comparable coverage and assured the Mayfields that she
would add Progressive’s “50% Extended Replacement-Cost
Coverage” to protect them in the event of a total loss. DeLaCroix
1 procured the 2019 policy, and the Mayfields paid the premium to
Progressive. DeLaCroix retired soon after.
¶3 In 2020 and 2021, the Mayfields renewed their homeowners’
insurance policy directly through Progressive. The Mayfields twice
asked a Progressive representative for a review of their policy but
did not discuss the terms of the policy with anyone. The policy at
issue here, purchased in July 2021, included dwelling coverage up
to $381,000 and other structure coverage up to $38,100.
Progressive based the coverage amounts on an estimate generated
by MSB’s reconstruction cost estimate software.
¶4 The Mayfields filed a claim with Progressive after the Marshall
Fire unfortunately destroyed their home on December 30, 2021.
Pursuant to the terms of the 2021 policy, Progressive issued
$419,100 to the Mayfields as insurance coverage for their home and
other lost structures — an amount that purportedly does not fully
cover rebuilding costs. The Mayfields learned at this time that their
policy did not include the “50% Extended Replacement-Cost
Coverage” DeLaCroix agreed, two years earlier, to add.
¶5 Premised on this omission, the Mayfields sued DeLaCroix for
negligence, negligent misrepresentation, and breach of fiduciary
2 duty; Progressive for negligence, vicarious liability, coverage by
estoppel, and violations of the Colorado Consumer Protection Act
(CCPA), § 6-1-101 to -116, C.R.S. 2025; MetLife for vicarious
liability; and MSB for negligent misrepresentation. Defendants
moved for summary judgment, and the district court granted each
defendant’s motion on all claims. We conclude that the district
court did not err in its summary judgment awards.
II. Standard of Review
¶6 “Summary judgment is appropriate when the pleadings and
supporting documents establish that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment
as a matter of law.” Gibbons v. Ludlow, 2013 CO 49, ¶ 11. We
review de novo an order granting summary judgment, applying the
same standard as the district court to determine “whether a
genuine issue of material fact exists and whether the district court
correctly applied the law.” City & County of Denver v. Monaghan
Farms, Inc., 2023 COA 60, ¶ 20.
3 III. MSB
A. Additional Background
¶7 MSB owns software that allows insurance providers to
estimate the baseline reconstruction cost of a property. One such
product, RCT Express, has roughly fifty different inputs that
describe features of a home. The RCT Express user manually
selects the inputs based on the unique characteristics of the home,
and the software provides a rebuilding cost estimate. Because the
estimate is based on the selected inputs, users are instructed to
carefully confirm the characteristics of the subject home and choose
appropriate inputs to arrive at an accurate estimate.
¶8 MSB licenses the RCT Express software to Progressive.
However, as relevant here, Progressive agents customize only
sixteen inputs during the quoting process. In May 2021, two
months before the policy renewal period, Progressive used RCT
Express to estimate the reconstruction cost of the Mayfields’ home.
The estimate — $381,000 — formed the basis of the policy at issue
and the corresponding premium payment.
¶9 The Mayfields sued MSB for negligent misrepresentation,
arguing that this estimate undervalued their property. The
4 complaint alleged that MSB knew or should have known about the
possibility of undervaluation given its prior experience with wildfire
claims. The district court granted MSB’s motion for summary
judgment, concluding that MSB did not owe a duty of care to the
Mayfields and that reconstruction cost estimates are not
representations of fact. The Mayfields maintain that the district
court erred because MSB owed them a duty of care, which
precluded summary judgment in its favor. We are not persuaded.
B. Applicable Law and Analysis
¶ 10 To establish a negligence claim, the plaintiffs must first show
that the defendant owes them a duty of care. Turman v. Castle Law
Firm, LLC, 129 P.3d 1103, 1105 (Colo. App. 2006). Whether the
defendant owes this duty is a legal question determined by the
court. Id. To assert negligent misrepresentation, “the plaintiff must
demonstrate that the defendant supplied false information in a
business transaction and failed to exercise reasonable care . . . in
obtaining or communicating the information.” Bedard v. Martin,
100 P.3d 584, 592 (Colo. App. 2004).
¶ 11 The Mayfields provide no record support for the proposition
that MSB made a representation to them. On the contrary, the
5 record shows that MSB never directly communicated with the
Mayfields. The Mayfields instead attempt to impute on MSB a duty
to guarantee that its licensees fully utilize the capabilities of its
software. By failing to discharge this duty, goes the argument, MSB
misrepresented the cost to rebuild the Mayfields’ home via
Progressive’s inadequate insurance quote. Because this attenuated
misrepresentation theory finds no support in our case law, we
affirm the district court’s order. See Barfield v. Hall Realty, Inc.,
232 P.3d 286, 290 (Colo. App. 2010) (“Negligent misrepresentation
occurs when one . . . ‘supplies false information for the guidance of
others . . . .’” (quoting Mullen v. Allstate Ins. Co., 232 P.3d 168, 174
(Colo. App. 2009)); see also Deines v. Atlas Energy Servs., LLC, 2021
COA 24, ¶¶ 11-13 (explaining that a plaintiff cannot recover under
a negligence theory unless the defendant caused the plaintiff’s
injury).
IV. DeLaCroix
¶ 12 In July 2019, during the annual insurance renewal period, the
Mayfields discussed their homeowners’ policy with DeLaCroix.
Because MetLife would soon cease offering homeowners’ insurance
6 in Colorado, DeLaCroix recommended that the Mayfields switch
from MetLife to Progressive. DeLaCroix procured a quote from
Progressive that purportedly matched the coverage offered by
MetLife and stated that she would add a “50% Extended
Replacement-Cost Coverage” to the Progressive policy. This
extension would raise the coverage to $500,000 in the event of
complete property loss.
¶ 13 Relying on these representations, the Mayfields obtained the
Progressive policy on July 26, 2019. The policy, however, did not
contain the “50% Extended Replacement-Cost Coverage,” an
omission the Mayfields failed to notice. DeLaCroix retired in early
2020, and the Mayfields continued renewing this policy — with the
same terms — through a Progressive representative. Each year,
Progressive provided the Mayfields with a copy of the policy,
including a breakdown of their coverage. The Mayfields claim they
read the entire policy but maintain that they did not learn they
lacked the extended coverage until filing a claim in December 2021.
¶ 14 The Mayfields sued DeLaCroix, asserting that she negligently
failed to secure the type of coverage they sought for their property,
misrepresented the nature of the coverage provided, and breached
7 her duty as a fiduciary. The third claim rested on the Mayfields’
assumption that DeLaCroix owed them enhanced duties because a
“special relationship” formed over the years. DeLaCroix sought
summary judgment on all three claims, which the district court
granted.
¶ 15 The court concluded that DeLaCroix had no duty to advise or
warn the Mayfields of the provisions in the 2021 policy, the
Mayfields’ reliance on DeLaCroix’s statement regarding additional
coverage was not justifiable because they received and reviewed a
copy of the policy, and DeLaCroix had no fiduciary relationship or
other special relationship with the Mayfields. We agree.
1. Negligence
¶ 16 To succeed on a negligence claim, the plaintiff must show that
the defendant owes a duty of care. Vigil v. Franklin, 103 P.3d 322,
325 (Colo. 2004). Breach, causation, and damages become relevant
to the analysis only if the defendant has a legally cognizable duty.
Id. “[W]hether a defendant owes a duty to a plaintiff is a question of
law to be determined by the court.” Id.
8 ¶ 17 The Mayfields unsuccessfully attempt to merge DeLaCroix’s
procurement of the 2019 policy with their renewal of the 2021
policy. While DeLaCroix may have had a duty regarding the 2019
policy, see Apodaca v. Allstate Ins. Co., 232 P.3d 253, 259 (Colo.
App. 2009) (“[W[hen an agent promises to obtain a specific type of
insurance requested by the insured, the agent assumes a duty to
act reasonably to procure the requested insurance . . . .”), aff’d, 255
P.3d 1099 (Colo. 2011), the 2019 policy was not in effect at the time
of the 2021 Marshall Fire. Rather, the Mayfields renewed their
homeowners’ policy through Progressive in July 2020 and July
2021, and they had the option to obtain additional coverage at
either time. After DeLaCroix retired in early 2020, she was not
involved in the 2021 policy renewal. Thus, she owed no duty to the
Mayfields vis-a-vis the 2021 policy. See Gorab v. Equity Gen.
Agents, Inc., 661 P.2d 1196, 1198 (Colo. App. 1983) (concluding
that the insured was not entitled to recover on negligence claims
brought against the agent when the agent was not a party to the
insurance contract).
9 2. Negligent Misrepresentation
¶ 18 We apply and expand upon the legal principles outlined in
supra Part III.B. A negligent misrepresentation claim fails “if the
insured has a copy of his or her policy and can see that the alleged
oral misrepresentation contradicts the express terms of the policy.”
Colo. Pool Sys., Inc. v. Scottsdale Ins. Co., 2012 COA 178, ¶ 58.
¶ 19 The Mayfields received a physical copy of their policy in 2019
when they switched from MetLife to Progressive, and again in 2020
and 2021. When asked if he read the policy “cover to cover,” Mr.
Mayfield responded, “I did.” The policy stated the limits for dwelling
coverage and other structures, and the Mayfields acknowledged
that they never saw “50% Extended Replacement-Cost Coverage” in
writing. The Mayfields maintain that the policy is ambiguous, but
our review of the document reveals that it contains the information
necessary to ascertain the available coverage. Because the
Mayfields possessed and read a copy of the policy that contradicted
DeLaCroix’s oral statements, their claim for negligent
misrepresentation must fail. See id.; see also Usick v. Am. Fam.
Mut. Ins. Co., 131 P.3d 1195, 1201 (Colo. App. 2006) (the
policyholder has a duty to read the entire policy); Unigard Sec. Ins.
10 Co. v. Mission Ins. Co. Tr., 12 P.3d 296, 300 (Colo. App. 2000) (“An
insured is charged with knowledge of the policy’s terms and is
therefore on notice that the scope of his, her, or its insurance
coverage is governed by the terms of the policy . . . .”).
3. Special Relationship
¶ 20 The Colorado insurance agent licensing statute provides that
“[e]very insurance producer who solicits or negotiates an application
for insurance of any kind on behalf of an insurer shall be regarded
as representing the insurer and not the insured.” § 10-2-401(1),
C.R.S. 2025. Insurance agents are not personal financial
counselors, and “it is well settled that agents have no continuing
duty to advise, guide, or direct a client to obtain additional
coverage.” Kaercher v. Sater, 155 P.3d 437, 441 (Colo. App. 2006).
Agents do have a duty to act with reasonable care, but “absent a
special relationship between the insured and the insurer’s agent,
that agent has no affirmative duty to advise or warn his or her
customer of provisions contained in an insurance policy.” Id. The
formation of a special relationship turns on whether there is
“entrustment,” i.e., whether the agent assumes additional
responsibilities beyond those of an ordinary agent. Id.
11 ¶ 21 The Mayfields argue that insurance agents may assume
additional duties that require the agent to exercise a heightened
level of skill, care, and diligence that is appropriate under the
circumstances for one in the insurance field. They point to Golden
Rule Insurance Corp. v. Greenfield, 786 F. Supp. 914, 916 (D. Colo.
1992), a federal case in which the court concluded that a client may
come to rely on an insurance agent’s special knowledge and
experience when the agent assists the client in completing an
insurance application. In Golden Rule, the agent met with the
client, and the two completed an application for health insurance
together. Id. at 915. The agent there assumed an advisory role
beyond that of an ordinary insurance agent, and this, in turn, gave
rise to a special relationship. See id.
¶ 22 We fail to see how this is analogous to the relationship
between DeLaCroix and the Mayfields. DeLaCroix procured an
estimate from Progressive and offered policy recommendations —
something a typical insurance agent might do. While DeLaCroix
served as the Mayfields’ agent for several years and stated the 2019
policy would contain certain coverage, this alone does not give rise
to a “special relationship” warranting a heightened standard of care.
12 Kaercher, 155 P.3d at 441. Because DeLaCroix did not act within a
special relationship with the Mayfields, she cannot be held liable for
breaching an enhanced duty she never assumed.
V. Progressive
¶ 23 The Mayfields’ 2021 Progressive policy provided dwelling
replacement cost coverage up to $381,000 and additional coverage
for other structures, personal property, and loss of use. This was
the minimum amount Progressive offered based on the RCT Express
calculation. The policy specifically warned that “[t]he coverage
amount listed on your attached declaration page is only an estimate
of the replacement cost value of your insured property. It may not
be sufficient to replace your property in the event of a total loss.”
Indeed, the Mayfields could have secured additional coverage in
exchange for higher premiums. Consistent with the 2021 policy’s
terms, Progressive paid the Mayfields $419,100 for the loss of their
home and other structures on the property.
¶ 24 In their complaint, the Mayfields alleged that Progressive was
vicariously liable for DeLaCroix’s failure to add the extended
coverage, breached its duty to accurately estimate the cost of their
13 property, and violated the CCPA by using “ambiguous and
misleading” language in the policy. The Mayfields also argued
coverage by estoppel. The district court granted summary
judgment to Progressive on all claims.
¶ 25 On appeal, the Mayfields challenge the court’s vicarious
liability, negligence, and CCPA findings. We do not address the
negligence claim because the Mayfields, for the first time on appeal,
argue that section 10-1-101, C.R.S. 2025, imposes a duty on
insurance providers to guard against inadequate insurance rates.
The district court did not decide the issue on these grounds, and we
therefore decline to review it. Frisco Lot 3 LLC v. Giberson Ltd.
P’ship, LLLP, 2024 COA 125, ¶ 92 (“In civil cases, we generally do
not review issues that are insufficiently preserved.”). We also do not
reach the CCPA contention because the Mayfields fail to identify
factual issues that precluded summary judgment and fail to include
record citations to support their argument that Progressive violated
the CCPA. See C.A.R. 28(a)(7); see also Am. Fam. Mut. Ins. Co. v.
Am. Nat’l Prop. & Cas. Co., 2015 COA 135, ¶ 42 (declining to
consider conclusory allegations that lacked development). We
otherwise affirm the summary judgment as to the vicarious liability
14 claim. We also grant Progressive’s request for appellate costs but
deny its request for attorney fees.
1. Vicarious Liability
¶ 26 Vicarious liability rests on the existence of an agency
relationship to hold an employer liable for the torts of its employees
when they are acting within the scope of their employment. Semler
v. Hellerstein, 2016 COA 143, ¶ 47, rev’d on other grounds sub nom.,
Bewley v. Semler, 2018 CO 79. To find the employer liable, the
court must first find the employee liable. Carbajal v. Wells Fargo
Bank, N.A., 2020 COA 49, ¶ 27; Ochoa v. Vered, 212 P.3d 963, 966
(Colo. App. 2009). Because DeLaCroix was not a Progressive
employee at the time of the 2021 policy renewal, she is not liable for
claims relating to the 2021 policy. Therefore, the Mayfields’
vicarious liability claim necessarily fails. See Carbajal, ¶ 27.
2. Request for Appellate Costs and Fees
¶ 27 Progressive requests its “appellate costs and fees” under
C.A.R. 39. Because we affirm the judgment in Progressive’s favor,
we agree Progressive is entitled to its appellate costs upon
compliance with C.A.R. 39(c)(2). See C.A.R. 39(a)(2).
15 ¶ 28 To the extent Progressive also requests its appellate attorney
fees, we deny its request. Other than citing C.A.R. 39 — which
authorizes only an award of costs, not attorney fees — Progressive
does not explain the basis for its fees request. Accordingly, we deny
its request. See In re Marriage of Newell, 192 P.3d 529, 538 (Colo.
App. 2008).
VI. MetLife
¶ 29 MetLife, an insurance agency with offices in Boulder,
Colorado, employed DeLaCroix and underwrote the Mayfields’ 2017
and 2018 policies. In July 2019, DeLaCroix informed the Mayfields
that MetLife doubled its premium rates and would soon stop
issuing homeowner policies. DeLaCroix then procured a
Progressive estimate for the Mayfields.
¶ 30 The Mayfields asserted vicarious liability against MetLife,
seeking to hold it responsible, under the 2021 policy, for
DeLaCroix’s alleged acts and omissions relating to the 2019 policy.
The district court found that the claim failed for lack of causation
and granted summary judgment in MetLife’s favor. We affirm.
16 B. Applicable Law and Analysis
¶ 31 We apply the same legal principles outlined in supra Part
V.B.1. The Mayfields’ claim fails because MetLife cannot be held
vicariously liable for an agent who was not at fault. See Carbajal,
¶ 27; Semler, ¶ 48; Ochoa, 212 P.3d at 966. DeLaCroix did not
secure the Mayfields’ 2021 insurance policy, nor did MetLife employ
her when the operative policy was in effect. Because the Mayfields’
claim fails as a matter of law, the district court did not err in
granting MetLife’s summary judgment motion.
VII. Disposition
¶ 32 The summary judgments in favor of each defendant are
affirmed.
JUDGE KUHN and JUDGE SULLIVAN concur.