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Successful Underinsured Motorist Claim – Appellate Decision

October 30, 2008

The Law Office of Shawn E. McDermott LLC recently won a Colorado appellate case on behalf of its clients relating to uninsured/underinsured (UM/UIM) automobile insurance benefits. In this case, our clients, the Meza family members, had pursued a wrongful death claim under six different underinsured motorist policies issued to various family members of the Meza family. The claims were based on the tragic death of the family matriarch, Lucia Meza, who died in an automobile accident in 2000.

This insurance coverage denial case was initiated in 2002 by State Farm Insurance against the Mezas and three other insurance companies including Farmers, American Family and American Standard. Each of these carriers had denied the UIM claims of the Meza family members for a variety of reasons. The claims against State Farm and Farmers were resolved a few years ago. The final piece of the puzzle against American Family and American Standard was placed by the Colorado Court of Appeals with its decision on July 3, 2008 which affirmed the decision of the trial court from two years earlier. These two companies had improperly and in violation of public policy defined the term “relative” in its insurance policies in such a way to violate Colorado law. After six years of litigation, the Court of Appeals finally agreed with the legal arguments put forth by the Mezas and our office.

As the case was not published pursuant to Rule 35(f) of the Colorado appellate rules, it is reproduced below for interested readers:

Court of Appeals No.: 06CA2667
Weld County District Court No. 03CV573
Honorable Daniel S. Maus, Judge
State Farm Mutual Automobile Insurance Company,
American Family Mutual Insurance Company and American Standard Insurance Company of Wisconsin,
Eliberto Meza, Amelia Meza, Sofi Meza, Irene Meza, Rosalinda Chaparro, Flora Quintana, and Angelita Cordera,

Division V
Vogt and Graham, JJ., concur
Announced: July 3, 2008

Harris, Karstaedt, Jamison & Powers, P.C., A. Peter Gregory, Englewood, Colorado, for Defendants-Appellants

The Law Office of Shawn E. McDermott, L.L.C., Shawn E. McDermott, Denver, Colorado, for Defendants-Appellees

Defendant insurance companies, American Family Mutual Insurance Company (American Family Mutual) and American Standard Insurance Company of Wisconsin (American Standard) (collectively the American Family defendants), appeal the order granting the cross-motion for summary judgment in favor of defendant insureds, Eliberto Meza, Amelia Meza, Sofi Meza, Irene Meza, Rosalinda Chaparro, Flora Quintana, and Angelita Cordero(the Meza defendants). We affirm.

The essential facts of the case are not in dispute. On December 7, 2000, Lucia Meza was killed in an automobile accident in which the vehicle she was driving was struck by a vehicle driven by Bernice Swisher. Lucia was insured by plaintiff, State Farm Insurance Company.

The underlying action initially was brought as a complaint for declaratory relief by plaintiff to determine whether the policies at issue in the case could be stacked to determine whether Ms. Swisher’s vehicle was underinsured for purposes of coverage under plaintiff’s policy. After the trial court issued a ruling in favor of the Meza defendants, plaintiff appealed to this court. Upon a stipulation, that appeal was dismissed without prejudice.

Subsequent to the trial court’s determination of plaintiff’s stacking issue, the current issue developed relating to whether Lucia was an‚“insured person” under the insurance policies of Lucia’s daughters, Sofi and Rosalinda. At the time of the accident Sofi and Rosalinda were living at home.

Sofi was a named insured of American Standard and Rosalinda was a named insured of American Standard and of American Family Mutual. Each of these policies provided liability coverage and underinsured motorist (UIM) coverage for an “insured person.” “Insured person” was defined to include a relative living in the same household as the named insured, but only so long as this person, or his or her spouse, did not own a motor vehicle. The American Family defendants denied Sofi’s and Rosalinda’s claims for UIM benefits for the death of their mother, because Lucia owned a motor vehicle.

The Meza defendants and the American Family defendants filed cross-motions for summary judgment and for determination of questions of law. The summary judgment issue before the trial court was limited to whether Lucia was an “insured” as defined under the policies.
The American Family defendants sought an order determining, as a matter of law, that (1) Lucia did not constitute an insured “relative” under their policies because she owned a motor vehicle; (2) the definition of “relative” in the policies was valid under Colorado law; and (3) the policies thus did not provide UIM benefits for Lucia’s death. The Meza defendants sought an order determining, as a matter of law, that the definition of the term “relative” in the policies violated public policy and that the policies must provide UIM coverage for Lucia’s death.

Finding that the definition of the term “relative” and “its related exclusion in the insurance policies of the American Family Defendants [was] void as against public policy,” the trial court granted the Meza defendants’ cross-motion for summary judgment and denied the American Family defendants’ motions. The court reasoned that (1) the legislative declaration and definitional language of the uninsured/underinsured motorist (UM/UIM) statute, sections 10-4-60 1 and -609, as amended in 2003, require coverage of “insureds” and “resident relatives” without regard to their ownership or non-ownership of a motor vehicle; (2) the definition of the term “relative” in the American Family defendants’ policies was more restrictive than that contained in the 2003 statute; (3) a provision that dilutes, conditions, or limits statutorily mandated coverage violates public policy pursuant to DeHerrera v. Sentry Ins. Co., 30 P.3d 167 (Colo. 2001); and (4) the exclusion contained in the definition of “relative” was a vehicle restriction, andvehicle restrictions are against public policy pursuant to DeHerrera.
The trial court certified its order as final pursuant to C.R.C.P. 54(b). The American Family defendants appeal.

The American Family defendants contend that the trial court erred in granting the Meza defendants’cross-motion for summary judgment because, contrary to the findings of the trial court, the definition of the term “relative” used in their insurance policies does not violate Colorado public policy. We disagree.


We first note that this action arises under a former version of the UM/UIM statute, Ch. 92, sec. 1, § 10-4-609(1), 1983 Colo. Sess.Laws 454 (requiring insurers to offer UM/UIM coverage), and the former Colorado Auto Accident Reparations Act (No-Fault Act), Ch. 94, § 13-25-1, et seq., 1973 Colo. Sess. Laws 334 (formerly codified as amended at § 10-4-701, et seq.; repealed effective July 1, 2003, Ch. 189, sec. 1, § 10-4-726, 2002 Colo. Sess. Laws 649). Thus, we agree with the American Family defendants’ contention that the trial court improperly relied on statutory definitions in the 2003 amendments to the UM/UIM statute that were not in effect at the time of the accident. See Pollock v. Highlands Ranch Cmty. Ass’n, 140 P.3d 351, 354 (Colo. App. 2006) (trial court improperly retrospectively applied prospective statute when cause of action accrued before effective date of statute). Nonetheless, because the error does not affect the substance of the trial court’s order, we affirm the order for the reasons discussed below.

Also, unless otherwise noted, all citations refer to these statutes as they existed in time of Lucia’s death.


Our review of the grant of summary judgment is de novo. See A.C. Excavating v. Yacht Club I Homeowners Ass’n, 114 P.3d 862, 865 (Colo. 2005).
Statutory interpretation is a question of law we review de novo. Klinger v. Adams County Sch. Dist. No. 50, 130 P.3d 1027, 1031 (Colo. 2006). When we interpret a statute, our task is to determine and give effect to the legislature’s intent. Colo. Ofice of Consumer Counsel v. Pub. Utils.Comm’n, 42 P.3d 23, 27 (Colo. 2002). When determining legislative intent, we look to the language of the statuteitself and give effect to the statutory terms in accordance with their commonly accepted meaning. Winscom v. Garza, 843 P.2d 126, 128 (Colo. App. 1992). In so doing, we construe the statute as a whole in an effort to give consistent, harmonious, and sensible effect to all of its parts in accordance with the presumption that the legislature intended the entire statute to be effective. Minh Le v. Colo. Dep’t of Revenue, ___ P.3d ___, ___ (Colo. App. No. 07CA0729, May 29, 2008). Furthermore, in construing the different statutory provisions concerning the same topic or having the same general purpose, we must give effect to the legislative purpose of all such provisions. See Walgreen Co. v. Charnes, 819 P.2d 1039, 1043 (Colo. 1991).

Finally, the interpretation of an insurance policy presents a question of law we review de novo. Massingill v. State Farm Mut. Auto. Ins. Co., 176 P.3d 816, 820 (Colo. App. 2007).


Survivors are not entitled to recover under their own UM/UIMpolicy for the death of a person who is not an insured under that policy. See Farmers Ins. Exch. v. Chacon, 939 P.2d 517, 522 (Colo. App. 1997). Thus, in order to succeed on their claim, the Meza defendants must show that the exclusion in the American Family policies was void, and that Lucia qualified asan insured pursuant to this statute.

We conclude that under the statutory scheme in effect at the time of the accident, Lucia qualified as an insured person. Hence, the limited definition of “relative” in American Family’s insurance policies was in contravention of the intent of the UM/UIM statute at the time those policies were issued.

By enacting the UM/UIM statute, the General Assembly intended to protect the public from “the devastating financial loss that a traffic accident victim can incur.” It provided a mechanism through which an insured could purchase insurance coverage against such a loss. Aetna Casualty & Surety Co. v. McMichael, 906 P.2d 92, 98 (Colo. 1995); see § 10-4-702.

Accordingly, “insurers must offer UM/UIM coverage to a class of insureds coextensive with the class of insureds covered under the liability provision of the policy.” Aetna Casualty, 906 P.2d at 98 (emphasis added). This requirement implements the legislative intent to encourage thewidespread availability of UM/UIM insurance. Id.

Because UM/UIM coverage must be offered to the class covered under the liability provisions, we must begin our discussionwith what coverage is mandated under the liability provisions.

If an insurance policy dilutes, conditions, or limits statutorily mandated liability coverage, it is void and unenforceable. Massingill, 176 P.3d at 820 (citing DeHerrera, 30 P.3d at 173). Insurers may limit coverage only so long as public policy is not violated. Winscom, 843 P.2d at 128. “Thus, if a person seeking coverage is one for whom coverage is required by statute, an insurer cannot limit its statutory obligation by a contractual provision contrary to the requirements of the No-Fault Act.” Finizio v. American Hardware Mut. Ins. Co., 967 P.2d 188, 190 (Colo. App. 1998).

Here, by the policies’ terms, the identical definitions of “relative” and “insured” in the American Family defendants’ policies applied to both liability coverage (required by the No-Fault Act) and UM/UIM coverage. Thus, if the policy definitions of “insured “ and “relative” improperly narrow the class of insureds that is statutorily mandated for liability coverage, the same definitions in the UM/UIMpolicy must necessarily violate public policy.

The issue here is whether the definition of “insured” in the policies, which places limitations on which relatives may be insureds, conflicts with the statutorily mandated liability coverage under the No-Fault Act. Wheeler v. Allstate Ins. Co., 814 P.2d 9, 10 (Colo. App. 1991) (motor vehicle insurance agreements are governed by the No-Fault Act, which is controlling in the event of a conflict between the two).

The statutory classification of persons to whom liability coverage must be extended was codified at section 10-4-703(6). Finizio, 967 P.2d at 190; Winscom, 843 P.2d at 128; see Wiglesworth v. Farmers Ins. Exch., 917 P.2d 288, 290 (Colo. 1996).Under section 10-4-703(6), insureds were defined, as pertinent here, as “relatives of the named insured who reside in the same household as the named insured.” Accordingly, the No-Fault Act required liability coverage for this class of individuals. See Finizio, 967 P.2d at 190 (insurers cannot contractually limit statutorilymandated coverage).
Yet in all three policies of the American Family defendants, the insurers contractually limited the class of persons who would qualify as a ‚”relative.” The pertinent provisions of the American Family defendants’policies all stated as follows: “Relative means a person living in your household, related to you by blood, marriage or adoption. . . . It excludes any person who, or whose spouse, owns a motor vehicle other than an off-road motor vehicle.”

These provisions “improperly narrow the class of insureds” to whom the American Family defendants were required to provide liability coverage under the No-Fault Act. See Finizio, 967 P.2d at 190 (because statute mandated coverage for permissive users, policy improperly limited coverage to those permissive users who did not have liability coverage of their own or who had other liability insurance available less than statutory minimum limits under No-Fault Act). The American Family policies improperly excluded from statutorily mandated liability coverage those otherwise qualified relatives who own, or whose spouses own, vehicles. Because this definition diluted, conditioned, and limited statutorily mandated liability coverage under the No-Fault Act, it is void and unenforceable. Massingill, 176 P.3d at 820; see Finizio, 967 P.2d at 190 (insurer cannot limit statutory obligation by contractual provision contrary to requirements of No-Fault Act).

Because liability coverage is legally required for relatives residing in the named insured’s household, UM/UIM coverage mustextend to these relatives as well. The only permissible limitation is where a policyholder expressly contracts for narrower UM/UIM coverage than that mandated under his liability coverage. See Bernal v. Lumbermens Mut. Casualty Co., 97 P.3d 197, 200 (Colo. App. 2003) (the policyholder may reject or limit UM/UIM coverage). Such is not the case here. By their terms, the American Family policies provided UM/UIM coverage coextensive with liability coverage. But because the liability coverage in the policies improperly limited statutorily mandated coverage, the policies likewise improperly limited UM/UIM coverage of relatives based on the ownership of a vehicle. Because the policies limited statutorily mandated coverage and thus violate public policy, the “relative” exclusion is void. Massingill, 176 P.3d at 820; see Winscom, 843 P.2d at 128 (insurers may limit coverage only if public policy is not violated).
The American Family defendants contend that the definition of “relative” in the policies is akin to the valid named driver exclusion in Massingill. We disagree. The exclusion there was allowed by statute for named individuals based on their driving records. Massingill, 176 P.3d at 820 (named driver exclusions permitted in motor vehicle insurance policies under former § 10-4-721 and under § 10-4-630, C.R.S. 2007). Here, the limitation placed on the class of people covered by the liability provisions is not provided for by statute.

We also note that the fact that the legislature expressly placed limits on liability coverage in certain circumstances suggests that the General Assembly did not so intend here. See Nat’l Farmers Union Property & Casualty Co. v. Estate of Mosher, 22 P.3d 531, 534 (Colo. App. 2000) (court not at liberty to read additional terms into or modify plain language of statute where General Assembly has elsewhere enacted limitation urged upon the court). Also, the American Family defendants’ reliance on section 42-7-4 13, C.R.S. 2007, as codifying the class of persons to whom liability coverage must extend, is misplaced. That statute by its own terms limits itsapplication to the Motor Vehicle Responsibility Law. See also Wheeler, 814 P.2d at 10 (motor vehicle insurance agreements are governed by No-Fault Act).

In addition, we distinguish the American Family defendants’ supplemental authority, Pacheco v. Shelter Mut. Ins. Co., (D. Colo. No. 06-cv-01 165-JLK-BNB, Jan. 23, 2008) (unpublished order on pending motions). There, the court reasoned that because the
claimant was not an insured under either the UM/UIM or liability provisions of the policy, the exclusion in the UM/UIM policy did not violate the statutory intent that UM/UIM coverage be coextensive with the coverage provided in the liability provision of the policy. The court did not analyze the enforceability of the liability exclusion.

Finally, we conclude the foreign authorities relied on by the American Family defendants are not instructive here. Several of the cases are inapposite because the applicable statutes either did not mandate coverage of relatives, mandated narrower coverage than the Colorado statute, or did not define the class to which coverage must extend. American Family Mut. Ins. Co. v. Cranston, 1989 WL 58963 (D. Kan. No. Civ. A. 88-403 1, May 9, 1989) (unpublished memorandum and order); Middlesex Ins. Co. v. Quinn, 622 A.2d 572(Conn. 1993); Indiana Lumbermans Mut. Ins. Co. v. Vincel, 452 N.E.2d 418 (Ind. Ct. App. 1983); Lewis v. American Family Ins. Group, 555 S.W.2d 579 (Ky. 1977); Washington v. Travelers Ins. Co., 284 N.W.2d 754 (Mich. Ct. App. 1979); Malo v. Aetna Casualty & Surety Co., 459 A.2d 954 (R.I. 1983); Farmers Ins. Co. v. Miller, 549 P.2d 9 (Wash. 1976). In the remaining cases, the issues presented to the court were substantially different from the issue presented here. American Family Mut. Ins. Co. v. Kittinger, 498 N.E.2d 256 (Ill. App. Ct. 1986) (UM coverage does not extend to financially irresponsible relative who cancelled her own car insurance policy); Ellis v. American Family Mut. Ins. Co., 750 N.E.2d 1287 (Ill. App. Ct. 2001) (effect of judicial admission that claimant owned vehicle); Burkett v. American Family Ins. Group, 737 N.E.2d 447 (Ind. Ct. App. 2000) (court’s holding relied on whether definition of ‚relative₤in policy was ambiguous); Smitke v. Travelers Indem. Co., 118 N.W.2d 217 (Minn. 1962), (objective of UM statute was to provide coverage to resident relatives who could not obtain such coverage inany other way); McKee v. American Family Mut. Ins. Co., 932 S.W.2d 801 (Mo. Ct. App. 1996) (issue was whether van owned by resident relative was motor vehicle under insurance policy).

In light of our conclusion, we need not decide whether the trial court erred in characterizing the exclusion as a “vehicle exclusion.”

We affirm the order of the trial court, albeit on different grounds. Steamboat Springs Rental & Leasing, Inc. v. City & County of Denver, 15 P.3d 785, 786 (Colo. App. 2000) (appellate court may affirm a trial court’s correct judgment based on different reasoning).

Order affirmed.

Categories: Auto Accidents, Auto Insurance, Insurance, Uninsured/Underinsured Motorist Claims, Wrongful Death


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