Class Action Requires a Plaintiff with a Claim

No Right to Claim After Accepting Settlement and Cashing Check

Plaintiffs’ lawyers, especially when dealing with insurance companies, really like class action suits because they can make a great deal of money even if the class members get a pittance. However, to bring a class action suit the representative plaintiff must have a case.

In Patricia Mischek, individually and on behalf of all persons similarly situated; Skuya Christensen, individually and on behalf of all persons similarly situated v. State Farm Mutual Automobile Insurance Company, a foreign corporation, No. 18-1156, United States Court of Appeals for the Tenth Circuit (May 23, 2019) Plaintiffs, putative class plaintiffs contended that State Farm impermissibly reduced its insureds’ uninsured/underinsured motorist benefits by the amounts it paid under medical payments coverage.

State Farm found no need to deal with substance of the claim because they had settled with the two putative plaintiffs and sought summary judgment. State Farm’s motion was based on the ground that Plaintiffs had previously “settled and/or reached an accord and satisfaction” on their disputed insurance claims against State Farm. The district court agreed and accordingly granted summary judgment in favor of State Farm.

Plaintiffs raise two main arguments on appeal:

  1. they did not truly settle their claims with State Farm because they never signed a written release, and
  2. even assuming they reached a settlement agreement with State Farm, this agreement is unenforceable based on public policy and retroactive application of the Colorado Supreme Court’s decision in Calderon v. American Family Mutual Insurance Co., 383 P.3d 676 (Colo 2016).

Plaintiffs’ second argument is foreclosed in an earlier opinion in which the Tenth Circuit rejected a virtually identical argument brought by other Colorado insureds following the Calderon decision.

As for Plaintiffs’ first argument, the Tenth Circuit agreed with the district court that the facts in this case, even taken in the light most favorable to Plaintiffs, show that Plaintiffs’ claims are precluded by the doctrine of accord and satisfaction.


Contrary to Plaintiffs’ representations, it is immaterial that they did not sign a written release. Colorado law does not require a written release to settle claims. Rather, “to constitute an accord and satisfaction, . . . money should be offered in full satisfaction of the demand, and be accompanied by such acts and declarations as amount to a condition that the money, if accepted, is accepted in satisfaction,” and “such that the party to whom it is offered is bound to understand therefrom that, if he takes it, he takes it subject to such conditions.” Pitts v. Nat’l Indep. Fisheries Co., 206 P. 571, 571 (Colo. 1922). In R.A. Reither Construction, Inc. v. Wheatland Rural Electric Ass’n, 680 P.2d 1342, 1344 (Colo. App. 1984), a Colorado court found these requirements to be met where the plaintiff simply deposited two checks which “bore notations indicating that they were being offered in satisfaction of the entire outstanding obligation . . . [and] were followed by a letter from [the defendant] stating that the checks were offered in full settlement of the dispute.”

The undisputed facts of this case established that each Plaintiff accepted a payment in full satisfaction of her disputed insurance claim against State Farm. For instance, the record reflects that Ms. Mischek’s attorney engaged in settlement negotiations with State Farm that resulted in Ms. Mischek receiving a “payment in the amount of $70,531.89 for settlement of [her] Underinsured Motorist claim,” which State Farm “confirm[ed] . . . settles any and all claims under the Underinsured Motorist Coverage.” The check stub for this payment bore the notation, “Full and final UIM settlement.” Ms. Mischek did not dispute the amount of payment or return the check the settlement check was accepted and deposited, which is sufficient under Colorado law to discharge the underlying obligation.

Ms. Christensen likewise accepted a $16,000 payment made by State Farm based on the parties’ “agree[ment] to settle [her] underinsured motorist claim for $16,000, inclusive of all liens.” Plaintiffs have cited no persuasive reason why their acceptance of State Farm’s settlement checks would not meet the elements of the doctrine of accord and satisfaction under Colorado law.

As the district court correctly explained, “[b]ecause both Ms. Mischek and Ms. Christensen accepted payment from State Farm to settle their UIM claims, the doctrine of accord and satisfaction bars them from seeking additional UIM benefits that they allege were unlawfully withheld.”


If the lawyers that negotiated the settlements are the same people who filed the class action they should be ashamed for wasting the time of the District Court and the Tenth Circuit. If different lawyers who had available the facts establishing settlement he, her, or they should also be ashamed.

© 2019 – Barry Zalma

This article, and all of the blog posts on this site, digest and summarize cases published by courts of the various states and the United States.  The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant  specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 50 years in the insurance business. He is available at and

Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.

Over the last 51 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.

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About Barry Zalma

An insurance coverage and claims handling author, consultant and expert witness with more than 48 years of practical and court room experience.
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