Continental Divide Ins. Co. v. Dickinson

• Decision Date: 12 July 2007
• Docket Number: No. 06CA0256.,06CA0256.
• Citation: 179 P.3d 202
• Parties: CONTINENTAL DIVIDE INSURANCE COMPANY, Plaintiff-Appellee, v. John P. DICKINSON, Defendant-Appellant.
• Court: Colorado Court of Appeals

179 P.3d 202

CONTINENTAL DIVIDE INSURANCE COMPANY, Plaintiff-Appellee, v. John P. DICKINSON, Defendant-Appellant.

No. 06CA0256.

Colorado Court of Appeals, Div. VI.

July 12, 2007.

Rehearing Denied September 6, 2007.

Campbell, Latiolais & Ruebel, P.C., Robyn B. Averbach, Denver, Colorado, for Plaintiff-Appellee.

Jennifer E. Bisset, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge WEBB.

In this uninsured/underinsured motorist (UM/UIM) insurance coverage dispute, defendant, John P. Dickinson, appeals the summary judgment entered in favor of plaintiff, Continental Divide Insurance Company, declaring that Dickinson is not entitled to recover UM/UIM benefits from the insurer of the tortfeasor's employer for injuries he suffered in a work-related automobile accident. The trial court relied on the Workers' Compensation Act (Act), § 8-40-101, et seq., C.R.S.2006, as limiting Dickinson's recovery against a tortfeasor in the same employ to $15,000, and the settlement of his claim against the tortfeasor and the employer for that amount. We agree with the trial court and therefore affirm.

I. Facts

The facts concerning UM/UIM coverage are undisputed. While painting fire hydrants for United Technical Services (UTS), Dickinson fell from his own truck, which he had leased to UTS and a UTS employee was driving. Continental insured UTS under an auto policy that provided general liability coverage of $1,000,000 and UM/UIM coverage of $500,000 on the basis that "We will pay all sums the `insured' is legally entitled to recover as compensatory damages from the owner or driver of an `uninsured motor vehicle.'"

An administrative law judge (ALJ) rejected Dickinson's workers' compensation claim against UTS because he was an independent contractor, not an employee, under § 8-40-202(2), C.R.S.2006. The ALJ explained: "[Dickinson] was employed by [UTS] as an employee in the leak detection business.... When [Dickinson] failed to successfully perform his job duties ... [UTS] employed [Dickinson] on contract to service and paint fire hydrants." Dickinson did not appeal this ruling.

To recover damages for his injuries, Dickinson then brought an action asserting vicarious liability against UTS and negligence against its driver. The trial court ruled that § 8-41-401(3), C.R.S.2006, limited Dickinson's recovery to $15,000 because he was an independent contractor who "had elected by contract not to be included in UTS's [workers' compensation] policy," and he "did not elect to purchase and keep in force a policy of workers' compensation insurance covering himself." Dickinson settled the case for $15,000, and it was dismissed.

Dickinson next demanded arbitration of a UM/UIM claim under the Continental auto policy on the basis that he was insured as a passenger in a vehicle covered by that policy and the $15,000 statutory limitation rendered UTS and its driver underinsured. Continental responded by bringing this action for a declaratory judgment to determine whether Dickinson's UM/UIM claim was limited by § 8-41-401(3), but it did not dispute that he was insured under the policy. Dickinson counterclaimed, seeking UM/UIM benefits for his damages in excess of $15,000, and alleging, "Dickinson, as part of his independent contract with [UTS], leased his personal truck to UTS for use in performing work for UTS. Defendant Dickinson's truck was insured under the Continental Insurance company policy...." On cross-motions for summary judgment, the trial court entered judgment for Continental.

II. Law

We review a summary judgment de novo, considering the facts in the light most favorable to the nonmoving party. Jaynes v. Centura Health Corp., 148 P.3d 241, 243 (Colo. App.2006).

Likewise, statutory interpretation is a question of law that we review de novo. Ryals v. St. Mary-Corwin Reg'l Med. Ctr., 10 P.3d 654, 659 (Colo.2000). If the plain language of a statute is clear and unambiguous, we need not consider rules of statutory construction, but instead apply the statute as written, unless that application leads to an absurd result. People v. Cooper, 27 P.3d 348, 354 (Colo.2001); E-470 Pub. Highway Auth. v. Kortum Inv. Co., 121 P.3d 331, 333 (Colo. App.2005).

Under § 8-40-202(2), an independent contractor is not an "employee." As to independent contractors, among others, § 8-41-401(3) limits the "total amount of damages recoverable pursuant to any cause of action resulting from a work-related injury," otherwise compensable under the Act, to $15,000, "except in any cause of action brought against another not in the same employ." See Kelly v. Mile Hi Single Ply, Inc., 890 P.2d 1161 (Colo.1995); Stampados v. Colo. D & S Enters., Inc., 833 P.2d 815 (Colo.App. 1992).

Section 10-4-609(1)(a), C.R.S.2006, prohibits delivery of an automobile liability insurance policy in Colorado unless either the policy provides "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," or the insured waives this coverage. See Farmers Ins. Exch. v. McDermott, 34 Colo.App. 305, 309, 527 P.2d 918, 920 (1974) ("[T] he declaration of public policy expresses the legislature's prime concern as [being] the need to compensate the innocent driver for injuries received at the hands of one from whom damages cannot be recovered.").

The recovery limitation in § 8-41-401(3) does not recognize an exception for recovery of UM/UIM benefits in excess of $15,000. Nor does § 10-4-609(1) exclude recovery limitations under the Act from the "legally entitled to recover" condition to receiving UM/UIM benefits. Hence, we discern neither ambiguity in, nor conflict between these statutes.

Both parties state, and we agree, that no reported Colorado appellate case has addressed whether the Act's $15,000 limitation on certain tort claims precludes recovery against a UM/UIM insurer of an employer for damages suffered in a work-related accident in which the tortfeasor is in the same employ as the claimant.

The majority of jurisdictions that have addressed this issue hold that "an insured is not `legally entitled to recover' under the uninsured motorist provisions of an insurance policy if the exclusivity provisions of the workers' compensation statute would bar an action against the tortfeasor." Matarese v. N.H. Mun. Ass'n Prop.-Liab. Ins. Trust, Inc., 147 N.H. 396, 791 A.2d 175, 180-81 (2002) (collecting cases); see also 1 A. Widiss & J. Thomas, Uninsured and Underinsured Motorist Insurance § 7.14, at 442-49 (rev.3d ed.2005)(noting that most cited cases "have sustained denials of claims for uninsured motorist insurance coverage on the ground that an injured employee was not entitled to recover from a fellow employee," but stating that recovery of UM/UIM benefits should "be allowed for individuals by treating a recovery from workers' compensation either (a) as a primary coverage or (b) as an offset, rather than as a justification for precluding uninsured motorist claims"). See generally John P. Ludington, Automobile Uninsured Motorist Coverage: "Legally Entitled to Recover" Clause as Barring Claim Compensable Under Workers' Compensation Statute, 82 A.L.R.4th 1096 (1990).

We consider the majority view well reasoned, perceive it as consistent with Colorado statutes, and reject Dickinson's invitation to adopt a different approach.

III. Application

Dickinson contends he is entitled to UM/UIM benefits based on the UM/UIM statute and Colorado public policy favoring full recovery of UM/UIM benefits, notwithstanding the $15,000 limitation in the Act. We disagree.

A. Dickinson and the UTS Driver Were in the Same Employ

Initially, we reject Dickinson's assertion in his reply brief that the majority rule does not apply because the ALJ held him to have been an independent contractor, and thus he and the UTS driver were not "in the same employ" for purposes of the $15,000 limitation established by § 8-41-401(3).

We do not address arguments raised for the first time in a reply brief. Rector v. City & County of Denver, 122 P.3d 1010, 1013 (Colo.App.2005). Dickinson argues that we should do so here because he first raised this assertion in his reply brief only after Continental addressed it in the answer brief. We are not persuaded.

Dickinson's opening brief states that he "could not recover more than to [sic] $15,000 from the contractor, UTS and its employee, by operation of law under C.R.S. § 8-41-401(3)." The statute excepts from the $15,000 limitation "any cause of action brought against another not in the same employ." Yet, Dickinson's opening brief fails to challenge the statutory limitation on the basis that he and the UTS driver were not in the same employ. To the contrary, his arguments all assume that this limitation applies. Dickinson made similar arguments in opposing summary judgment below. See Estate of Stevenson v. Hollywood Bar & Cafe, Inc., 832 P.2d 718, 721 n. 5 (Colo.1992)(arguments never presented to a trial court may not be raised for the first time on appeal).

Moreover, Dickinson's position in his reply brief is untenable in light of In re: Gordon Pulsifer v. Pueblo Profession Contractors, Inc., 161 P.3d 656, ___ (Colo. No. 07SC24, June 25, 2007).

Accordingly, we decline to consider Dickinson's attempt to distinguish Matarese and avoid the majority rule on the basis that he and the UTS driver were not in the same employ.

B. The UM/UIM Statute and Public Policy

We also reject Dickinson's assertion that he is not bound by the $15,000 limitation because of public policy favoring complete recovery of benefits mandated by the UM/UIM statute. See, e.g., State Farm Mut. Auto. Ins. Co. v. Brekke, 105 P.3d 177, 184 (Colo.2004)("The public policy behind section 10-4-609 has established a foundation for preventing the dilution of UM coverage....").

Section 10-4-609(1)(a) protects persons "who are legally entitled to recover damages from owners or operators of...