Carlisle v. Farmers Ins. Exchange, 95CA2080

Citation946 P.2d 555
Decision Date20 March 1997
Docket NumberNo. 95CA2080,95CA2080
Parties21 Colorado Journal 397 Anne CARLISLE, Plaintiff-Appellant, v. FARMERS INSURANCE EXCHANGE, Defendant-Appellee. . II
CourtCourt of Appeals of Colorado

Pribila & Sokolow, P.C., Anthony L. Sokolow, Colorado Springs, for Plaintiff-Appellant.

Levy & Lambdin, P.C., Suzanne Lambdin, Stephanie A. Montague, Karen H. Wheeler, Englewood, for Defendant-Appellee.

Opinion by Judge TAUBMAN.

In this declaratory judgment action, plaintiff, Anne Carlisle, appeals the summary judgment entered in favor of the defendant, Farmers Insurance Exchange (Farmers). We affirm.

In August of 1993, Carlisle was a passenger in a car that was involved in a collision with a second vehicle. It is undisputed that both the driver of the car in which Carlisle was a passenger and the driver of the second vehicle were negligent in causing the accident.

The driver of the car in which Carlisle was a passenger (first driver) was insured for liability with policy limits of $25,000 per person, $50,000 per vehicle. The driver of the second car (second driver) was insured for liability with policy limits of $50,000 per person, $100,000 per vehicle. At the time, Carlisle was insured under her father's policy for uninsured/underinsured motorist protection (UM/UIM) with policy limits of $50,000.

Carlisle collected the policy limits of both negligent drivers' policies, for a total recovery of $75,000. She then initiated this declaratory judgment against Farmers, claiming that because the first driver had policy limits less than her UM/UIM coverage, he was underinsured. Carlisle argued that she is entitled to collect $25,000 of UM/UIM coverage, the difference between the limits of her father's UM/UIM policy and the first driver's liability policy. Farmers filed a motion for summary judgment, arguing in part that because Carlisle had recovered from the tortfeasors an amount greater than her father's UM/UIM policy, she is precluded from recovery under the policy. The trial court granted the motion for summary judgment, and Carlisle brought this appeal.

I.

We hold that the policy language unambiguously allows Farmers to aggregate the liability damages received by Carlisle.

The UIM/UM policy in question here provides the following:

Limits of Liability

The limits of liability shown on the Declarations for Uninsured Motorist apply to uninsured motorist coverage, including underinsured motorist coverage as defined in Additional Definition 3b, subject to the following:

....

4. The maximum we will pay an insured person for damages caused by an underinsured motorist as defined in Additional Definition 3b shall be no more than the extent the uninsured motorist bodily injury limit exceeds the sum of the amounts of all liability bonds or insurance policies available to all parties held to be liable for the accident. We will pay under this coverage only after the limits of all such liability bonds or policies have been exhausted by the payment of settlements or judgments.

An insurance policy should be enforced as written, giving words their plain meaning according to common usage and avoiding strained constructions of the language used. Allstate Insurance Co. v. Starke, 797 P.2d 14 (Colo.1990). A provision of a policy is ambiguous and must be interpreted by the court when, upon being evaluated within the policy as a whole, Union Insurance Co. v. Houtz, 883 P.2d 1057 (Colo.1994), it is reasonably susceptible to more than one meaning. Northern Insurance Co. v. Ekstrom, 784 P.2d 320 (Colo.1989).

First, we conclude that paragraph 4 quoted above unambiguously allows Farmers to offset "the sum of the amounts of all liability bonds or insurance policies available to all parties held to be liable for the accident."

Second, we reject Carlisle's argument that an ambiguity exists between the liability section of the policy concerning "other insurance" and the above quoted provisions. The liability section of the policy was not made part of the record and is, therefore, not available for review. In fact, the only reference in the portion of the policy provided in the record regarding "other insurance" is an endorsement which expressly removes the paragraph concerning that phrase from the policy.

Carlisle's failure to include a complete copy of the policy in the record makes it impossible to construe the contract as a whole, or to determine if provisions within the policy create an ambiguity. Accordingly, we presume that the trial court's ruling is correct, and no ambiguity exists. See Bowen v. Farmers Insurance Exchange, 929 P.2d 14 (Colo.App.1996).

Thus, the policy unambiguously provides that Farmers may offset the amounts Carlisle received from the first and second drivers against the limits of her father's UM/UIM policy.

II.

We also reject Carlisle's contention that aggregation of her recovery of damages from both tortfeasors violates public policy because it precludes any recovery under her father's UM/UIM coverage.

Even though a term in an insurance policy may be unambiguous, it should not be enforced if it violates public policy by attempting to dilute, condition, or limit statutorily mandated insurance coverage. Terranova v. State Farm Mutual Automobile Insurance Co., 800 P.2d 58 (Colo.1990).

Here, the statute expressly permits Farmers to offset the combined recovery received by Carlisle from all tortfeasors. Section 10-4-609(5), C.R.S. (1994 Repl.Vol. 4A) provides the following:

(5) The maximum liability of the insurer under the uninsured motorist coverage provided shall be the lesser of:

(a) The difference between the limit of uninsured motorist coverage and the amount paid to the insured by or for any person or organization who may be held liable for the injury; or

(b) The amount of damages sustained, but not recovered.

The purpose of UM/UIM coverage is to provide an insured with benefits to the extent necessary to recover for losses caused by...

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  • Toy v. Am. Family Mut. Ins. Co.
    • United States
    • U.S. District Court — District of Colorado
    • January 29, 2014
    ...is not entitled to "full indemnification of losses suffered by an UM/UIM insured under all circumstances." Carlisle v. Farmers Ins. Exch., 946 P.2d 555, 557 (Colo. App. 1997). A UIM insurer is permitted "to aggregate all amounts received by the insured from allparties liable for her injurie......
  • Jordan v. Safeco Ins. Co. of Am.
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    ...recovered $25,000 from the tortfeasor, the insured retained only $75,000 in available UIM benefits); see also Carlisle v. Farmers Ins. Exchange, 946 P.2d 555, 558 (Colo.App.1997) (“Insurers are allowed ... to offset from UM/UIM coverage amounts received by an insured from a tortfeasor's lia......
  • Adamscheck v. Am. Family Mut. Ins. Co.
    • United States
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    ...disability insurance [SSDI] benefits, release-trust agreements, or personal injury protection [PIP] benefits." Carlisle v. Farmers Ins. Exch., 946 P.2d 555, 558 (Colo.App.1997) ; see also Barnett v. Am. Family Mut. Ins. Co., 843 P.2d 1302, 1307–09 (Colo.1993) (prohibiting offset for SSDI pa......
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    ...149 P.3d 798, 802 (Colo.2007). A term is ambiguous when it is reasonably susceptible of more than one meaning. Carlisle v. Farmers Ins. Exch., 946 P.2d 555, 556 (Colo.App.1997). Exclusionary language that conflicts with the insured's objectively reasonable expectations is not enforceable. S......
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