Apodaca v. Allstate Ins. Co.

• Decision Date: 25 November 2009
• Citation: 232 P.3d 253
• Docket Number: 08CA2231
• Parties: Codiejo APODACA, n/k/a Codiejo Martinez, and Michelle I. Carlton, Plaintiffs-Appellants,v.ALLSTATE INSURANCE COMPANY, an Illinois Insurance Corporation, and Sandra H. Perkins, Defendants-Appellees.
• Court: Colorado Court of Appeals

232 P.3d 253

Codiejo APODACA, n/k/a Codiejo Martinez, and Michelle I. Carlton, Plaintiffs-Appellants,v.ALLSTATE INSURANCE COMPANY, an Illinois Insurance Corporation, and Sandra H. Perkins, Defendants-Appellees.

No. 08CA2231.

Colorado Court of Appeals Div. III.

Nov. 25, 2009.

COPYRIGHT MATERIAL OMITTED

The Carey Law Firm, Robert B. Carey, Megan E. Maples, Colorado Springs, Colorado; The Gold Law Firm, L.L.C., Gregory A. Gold, Collene Parsley, Greenwood Village, Colorado, for Plaintiffs-Appellants.

Wheeler Trigg O'Donnell LLP, John M. Vaught, Terence M. Ridley, Denver, Colorado; Meckler, Bulger & Tilson LLP, Peter J. Valeta, Chicago, Illinois, for Defendants-Appellees.

Opinion by Judge ROY.

Plaintiffs, Codiejo Apodaca, now known as Codiejo Martinez, and Michelle I. Carlton(the insureds), appeal the judgment dismissing their declaratory action against defendants, Allstate Insurance Company(the insurer) and Sandra H. Perkins(the agent).We affirm.

I.Background

The insureds were involved in an automobile accident in June 2002.At the time of the accident, the insureds were covered as resident relatives under two insurance policies issued by the insurer to Steven Carlton(the policyholder), who is Carlton's father and Martinez's stepfather.The first policy insured the motor vehicles and the second was an umbrella policy, which provided $1 million in excess liability coverage, including, among other things, automobile coverage.

The insureds brought this action seeking a judicial declaration that, since the insurer failed to provide or offer uninsured/underinsured motorist (UM/UIM) coverages under the umbrella policy as, in their view, required by section 10-4-609(1), C.R.S.2009, the maximum amount of additional UM/UIM coverage available under the insurer's rating plan should be deemed incorporated into the umbrella policy as a matter of law.The insureds also brought suit against the insurance agent who sold the umbrella policy, arguing that she had breached her duty of care by failing to inform the policyholder that the umbrella policy did not contain UM/UIM coverages.

The insurer moved to dismiss several claims, arguing, as to the umbrella policy, that section 10-4-609(1) did not require that it provide or offer UM/UIM coverages in the umbrella policy; thus, the insureds failed to state a claim for which relief could be granted.The agent also argued that she owed no duty to the policyholder to advise him that the umbrella policy did not contain UM/UIM coverages.

The trial court granted the motion as to the above mentioned claims against the insurer and the agent.After the remaining claims were voluntarily dismissed, this appeal followed.

II.Standard of Review

The purpose of a motion to dismiss for failure to state a claim is to “test the formal sufficiency of the complaint.”Hurtado v. Brady,165 P.3d 871, 872(Colo.App.2007)(quotingDorman v. Petrol Aspen, Inc.,914 P.2d 909, 911(Colo.1996)).In reviewing a motion to dismiss, the court must take the allegations in the complaint as true and view them in the light most favorable to the plaintiff.Id. at 872-73.Motions to dismiss for failure to state a claim under C.R.C.P. 12(b)(5) are generally viewed with disfavor and should be granted only if it can be shown “beyond doubt that the plaintiff cannot prove facts in support of the claim that would entitle the plaintiff to relief.”Id. at 873(quotingCoors Brewing Co. v. Floyd,978 P.2d 663, 665(Colo.1999)).

We review a trial court's ruling on a motion to dismiss de novo.Id.(citingFluid Tech., Inc. v. CVJ Axles, Inc.,964 P.2d 614, 616(Colo.App.1998)).We apply the same standard of review to a motion to dismiss as the trial court applies.Id.(citingShapiro & Meinhold v. Zartman,823 P.2d 120, 123(Colo.1992)).

III.Umbrella Policy

The insureds first argue the trial court erred by failing to include umbrella policies within the ambit of section 10-4-609(1).We are not persuaded.

A.The Policy

At the time of the accident, the insureds were covered by an Allstate auto policy, which insured four motor vehicles.This policy had liability and UM/UIM limits of $100,000 for each person and $300,000 for each accident.The policy was issued pursuant to, and was governed by, part 6 of article 10,title 4, of the Colorado statutes(Part 6).In 2002, an insurer was not required to provide UM/UIM coverages in excess $100,000 for each person and $300,000 for each accident, which UM/UIM limits are applicable here.Seech. 92, sec. 1,§ 10-4-609(2),1983 Colo. Sess. Laws 454(now codified with amendments removing the limitation at § 10-4-609(2), C.R.S.2009).The policy provided liability coverage for the named insured and resident relatives, but provided UM/UIM coverages to the named insured, resident relatives, and “any other person while in, getting into or out of, or getting on or off an insured auto with [the insured's] permission.”

The insureds were also covered by an umbrella policy issued by the insurer to the policyholder with policy liability limits of $1 million.The umbrella policy paid “when an insured becomes legally obligated to pay for personal injury or property damages caused by an occurrence.”“Occurrence” was defined as “an accident or a continuous exposure to conditions.”With respect to many liability risks that are commonly insured separately, including aircraft, automobile, homeowners, recreational vehicles, domestic or farm employees, and watercraft coverage, the umbrella policy required minimum liability limits on a primary, or underlying, insurance policy.In the case of automobiles, the umbrella policy required that the underlying policy have liability limits of $100,000 per person and $300,000 per accident.

The umbrella policy did not require that the underlying policy provide UM/UIM coverages, much less require minimum limits for that coverage.Moreover, UM/UIM coverages do not indemnify the policyholder from liability for his or her negligent conduct; they protect the insureds under the automobile policy from damages caused by the negligence of a third-party motorist who is uninsured or underinsured.

B.Standard of Review

Matters of statutory interpretation raise questions of law that we review de novo.Hurtado,165 P.3d at 872.In reviewing a statute, it is our duty to “effectuate the intent and purpose of the General Assembly.”Id.(quotingCLPF-Parkridge One, L.P. v. Harwell Invs., Inc.,105 P.3d 658, 660(Colo.2005)).

If, on the one hand, the statutory provisions are clear and unambiguous, we apply the plain, ordinary meaning of the statute's language and provisions.Id.(citingCLPF-Parkridge,105 P.3d at 660).However, if, on the other hand, the statutory language is unclear or ambiguous, “we look to sources of legislative intent, including the object the legislature sought to obtain by the enactment, the circumstances under which it was adopted, and the consequences of a particular construction.”Id. at 873-74(quotingCLPF-Parkridge,105 P.3d at 661).A statute is ambiguous if it is susceptible of more than one interpretation.Id. at 874(citingEstate of David v. Snelson,776 P.2d 813, 817(Colo.1989)).

C.The Statute

At the outset, we have not been cited to, and our research has failed to discover, any Colorado statute or regulation governing or regulating umbrella liability insurance policies, much less expressly governing the marketing, terms, or coverages required in such policies.Further, Part 6 governs automobile or motor vehicle liability policies, and not umbrella policies.

Section 10-4-609(1) required UM/UIM coverages in automobile policies.At the time pertinent here, it stated:

(a) No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance, or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle licensed for highway use in this state unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in section 42-7-103(2), C.R.S., under provisions approved by the commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; except that the named insured may reject such coverage in writing.

(b) This subsection (1) shall not apply to motor vehicle rental agreements or motor vehicle rental companies.

Ch. 51, sec. 4,§ 10-4-609(1),1995 Colo. Sess. Laws 143(now codified without substantive amendment as § 10-4-609(1), C.R.S.2009).

D.Statutory Interpretation

The insureds contend the plain language of section 10-4-609(1) requires an offer of UM/UIM coverages in any policy providing automobile liability coverage in Colorado.They rely on the fact that section 10-4-609(1) did not exempt umbrella policies from the statute.We are not persuaded.

The language in section 10-4-609(1), with which we are immediately concerned, is:

No automobile liability or motor vehicle liability policy insuring against loss resulting from liability ... arising out of the ownership, maintenance, or use of a motor vehicle shall be delivered or issued ... in this state with respect to any motor vehicle licensed for highway use in this state unless [UM/UIM] coverage is provided therein or supplemental thereto....

§ 10-4-609(1)(a)(emphasis added).

In essence, the insureds present a tautological argument-that is, because the umbrella policy provides motor vehicle liability coverages it is an “automobile liability or motor vehicle liability policy” within the meaning of section 10-4-609(1)(a).This argument overlooks the entirety of the statutory and regulatory scheme.Automobile or motor vehicle insurance policies are regulated by statute, §§ 10-4-601 to -643, C.R.S.2009;...