Colby v. Progressive Cas. Ins. Co., RENT-A-CAR

• Decision Date: 16 December 1996
• Docket Number: 95SC590,RENT-A-CAR,Nos. 95SC537,s. 95SC537
• Citation: 928 P.2d 1298
• Parties: 20 Colorado Journal 1879 R.W. COLBY, as guardian and next friend of Dean L. Colby, an incapacitated adult, Petitioner, v. PROGRESSIVE CASUALTY INSURANCE COMPANY, Respondent. Carol THOMPSON, individually; and Scott Hageman, by and through his Conservator and Guardian, Carol Thompson, Petitioners, v. BUDGETSYSTEMS, INC., Respondent.
• Court: Colorado Supreme Court

Page 1298

928 P.2d 1298

20 Colorado Journal 1879

R.W. COLBY, as guardian and next friend of Dean L. Colby, an incapacitated adult, Petitioner, v. PROGRESSIVE CASUALTY INSURANCE COMPANY, Respondent.

Carol THOMPSON, individually; and Scott Hageman, by and

through his Conservator and Guardian, Carol

Thompson, Petitioners, v. BUDGET RENT-A-CAR SYSTEMS, INC., Respondent.

Nos. 95SC537, 95SC590.

Supreme Court of Colorado En Banc.

Dec. 16, 1996.

Rehearing Denied Jan. 13, 1997. ^*

Wilcox & Ogden, P.C., Ralph Ogden, Denver, for Petitioner in No. 95SC537.

Anderson, Campbell and Laugesen, P.C., Richard W. Laugesen, Denver, for Respondent in No. 95SC537.

Fischer, Howard & Francis, Steven G. Francis, Fort Collins, for Petitioner in No.95SC590.

Burg & Eldredge, P.C., Scott J. Eldredge, Kirstin G. Lindberg, Denver, for Respondent in No. 95SC590.

Justice KIRSHBAUM delivered the Opinion of the Court.

In Colby v. Progressive Casualty Insurance Company, 908 P.2d 1170 (Colo.App.1995), the court of appeals held that respondent, Progressive Casualty Insurance Company (Progressive), satisfied its obligations to pay rehabilitation benefits to petitioner, R.W. Colby (Colby), pursuant to section 10-4-706(1)(c), 4A C.R.S. (1987), of the Colorado Auto Accident Reparations Act (the Act) by paying Colby $50,000. In so doing, the court of appeals reversed the contrary summary judgment entered by the trial court. In Thompson v. Budget Rent-A-Car Systems, Inc., No. 94CV193 (Larimer County Dist. Ct., Oct. 14, 1994; Dec. 23, 1994; and Jan. 19, 1995), the trial court entered three partial summary judgments in favor of petitioner Carol Thompson and against respondent Budget Rent-A-Car Systems, Inc. (Budget), holding that Budget's obligation to pay rehabilitation benefits to Thompson was not limited to $50,000 pursuant to section 10-4-706(1)(c). We granted Colby's petition for certiorari review of the propriety of the court of appeals' decision in Colby and also granted Thompson's petition, filed pursuant to C.A.R. 50, for pre-judgment certiorari review of the propriety of the trial court's three judgments in Thompson to review the conflicting constructions of the provisions of section 10-4-706(1)(c) reflected therein. For the reasons stated below, we affirm the judgment of the court of appeals in Colby, reverse the judgments of the trial court in Thompson, and remand each case to the appropriate trial court for further proceedings consistent with this opinion.

I

A

While traveling as a passenger in a vehicle driven by Thomas Sumners, Colby's ward, Dean Colby, sustained a broken neck in a traffic accident on March 27, 1993, and is a quadriplegic. Sumners at that time owned a no-fault insurance policy issued by respondent Progressive that provided coverage for rehabilitation benefits in the amount of $50,000. ¹ Progressive paid $50,000 in rehabilitation benefits for the benefit of Dean Colby within one year of the accident, but refused to pay additional rehabilitation benefits for rehabilitation expenses incurred by Dean Colby.

Colby commenced this declaratory judgment action as guardian for Dean Colby seeking a determination that Progressive was responsible for the payment of rehabilitation costs in excess of $50,000 and incurred more than five years after the accident. Both parties submitted motions for summary judgment. The trial court granted Colby's motion, denied Progressive's motion, and entered judgment in favor of Colby. The court held that section 10-4-706(1)(c)(II) created a rebuttable presumption that an insurer who has paid $50,000 within five years has satisfied its statutory obligation.

Progressive appealed, and the court of appeals reversed the trial court's judgment and remanded with directions to dismiss Colby's complaint. The court of appeals held that Sumners's insurance policy complied with the provisions of section 10-4-706(1)(c)(II) because it required Progressive to pay up to $50,000 in rehabilitation benefits. ² Colby, 908 P.2d at 1173. The court of appeals also concluded that the presumptive language contained in section 10-4-706(1)(c)(II) "applies to years only so that an insurer may be required to pay additional benefits if less than $50,000 has been paid within five years." Colby, 908 P.2d at 1173.

B

While traveling as a passenger in a Budget rental car driven by Steve Miles, Thompson's ward, Scott Hageman, was seriously injured on June 12, 1993, in a traffic accident. Hageman claimed benefits under a no-fault self-insurance policy maintained by Budget for the driver of the rental car. ³ Budget paid $50,000 in rehabilitation benefits for the benefit of Hageman within one year of the accident, but refused to pay additional rehabilitation benefits for rehabilitation expenses incurred by Hageman.

Thompson commenced this action, individually and as guardian for Scott Hageman, against Budget, seeking, inter alia, a declaratory judgment that Budget is liable for Hageman's future rehabilitation expenses. Both parties filed motions for partial summary judgment on the issue of whether Budget could be required to pay more than $50,000 in rehabilitation benefits. The trial court granted Thompson's motion and denied Budget's motion, holding that section 10-4-706(1)(c)(II) created a rebuttable presumption that an insurer's obligation has been met when $50,000 has been paid. Thompson v. Budget Rent-A-Car Systems, Inc., No. 94CV193 (Larimer County Dist. Ct., July 11, 1994).

Based on this order, Thompson filed three motions for partial summary judgment for rehabilitation benefits exceeding $50,000. The trial court granted these motions, entered judgments against Budget totalling $140,963.62, and certified the judgments as final pursuant to C.R.C.P. 54(b). Budget satisfied the three judgments and appealed. Thompson then filed the petition for certiorari before judgment, pursuant to C.A.R. 50, with this court, which petition was granted.

II

The second issue contained in Thompson's petition for certiorari requires a determination of whether Budget failed to offer supplemental insurance coverage to Miles, as required by section 10-4-710, 4A C.R.S. (1992 Supp.). Thompson argues that Budget did not offer such supplemental insurance coverage to Miles and that, citing Passamano v. Travelers Indemnity Company, 882 P.2d 1312 (Colo.1994), Budget must therefore be found liable for all of Hageman's rehabilitation expenses. This issue, however, was not addressed by the trial court in the proceedings we have agreed to review pursuant to C.A.R. 50.

This action was commenced on April 1, 1994. The complaint does not allege that Budget failed to offer supplemental insurance coverage to the driver. The complaint was accompanied by a motion for partial summary judgment, which motion does not assert that Budget failed to offer supplemental coverage to Miles. ⁴ Budget opposed this motion ⁵ and filed its own motion for partial summary judgment concerning the construction of section 10-4-706(1)(c)(II). Budget's motion does not address the question of whether it offered Miles supplemental coverage.

The trial court granted Thompson's motion and denied Budget's motion on July 11, 1994. The trial court's order does not discuss the issue of whether Budget failed to offer supplementary coverage to Miles. Budget filed a motion for reconsideration, and Thompson opposed the motion; neither party raised the supplementary coverage issue, and the trial court's October 14, 1994, order denying Budget's motion for reconsideration does not address that issue.

Based on the July 11, 1994, order Thompson filed three motions for partial summary judgment for rehabilitation benefits exceeding $50,000. The trial court granted these motions in three separate orders dated October 14, 1994; December 23, 1994; and January 19, 1995. Each order was certified as final, pursuant to C.R.C.P. 54(b), for purposes of this appeal.

On November 20, 1994, Thompson filed a fourth motion for partial summary judgment. In this motion Thompson asserted that Budget is liable for all medical expenses, without time or dollar limitation, incurred by Hageman because Budget failed to offer supplemental insurance coverage to Miles, as required by section 10-4-710, 4A C.R.S. (1992 Supp.). The record before us does not contain the trial court's order resolving that motion. ⁶

The record before us compels the conclusion that the second issue upon which we granted certiorari in Thompson was not addressed by the trial court in the orders underlying Budget's appeal in this case. Issues not decided by the lower court may not be addressed for the first time on appeal. See Committee for Better Health Care for All Colo. Citizens v. Meyer, 830 P.2d 884, 888 (Colo.1992). Accordingly, we conclude that certiorari was improvidently granted on the issue of whether Budget offered Miles supplementary insurance, and order that Thompson's petition be denied with respect to that issue.

III

Both Colby and Thompson assert that they are entitled to additional rehabilitation benefits under the terms of the policies and the provision of section 10-4-706(1)(c)(II), 4A C.R.S. (1987). They contend that section 10-4-706(1)(c)(II) creates a rebuttable presumption that an insurer has satisfied its statutory obligation to pay such benefits when $50,000 has been expended within five years and that, if this presumption is overcome by evidence that the sum of $50,000 is insufficient to pay the cost of rehabilitation benefits, the insurer must pay all reasonable costs for rehabilitation without limitation. We do not agree with this argument.

A

In resolving whether section 10-4-706(1)(c)(II), 4A C.R.S. (1987), requires insurers to assume liability for rehabilitation benefits in excess of $50,000, we start with the statutory language. In construing statutory provisions, our obligation is to give full effect to the legislative intent. Conte v. Meyer, 882 P.2d 962, 965 (Colo.1994). If the legislative intent is immediately...