McCord v. AFFINITY INS. GROUP, INC., No. 99CA2118.

• Decision Date: 28 September 2000
• Docket Number: No. 99CA2118.
• Citation: 13 P.3d 1224
• Parties: Dorothy McCORD, Plaintiff-Appellee, v. AFFINITY INSURANCE GROUP, INC., Defendant-Appellant.
• Court: Colorado Court of Appeals

13 P.3d 1224

Dorothy McCORD, Plaintiff-Appellee, v. AFFINITY INSURANCE GROUP, INC., Defendant-Appellant.

No. 99CA2118.

Colorado Court of Appeals, Div. II.

September 28, 2000.

Shawn E. McDermott, Denver, Colorado, for Plaintiff-Appellee.

Burg Simpson Eldredge & Hersh, P.C., Kieth Van Doren, Diane Vaksdal Smith, Englewood, Colorado, for Defendant-Appellant.

Opinion by Judge CRISWELL.¹

Defendant, Affinity Insurance Group, Inc., (Affinity) appeals the summary judgment entered in favor of plaintiff, Dorothy McCord. We affirm in part, reverse in part, and remand with directions.

The facts are not in dispute. Plaintiff's mother (decedent), who was living with plaintiff at the time, was killed in a single-car accident. Plaintiff's sister, who was driving the car involved in the accident with the permission of its owner, was also killed. The owner's and driver's liability insurers, apparently not disputing coverage, liability, or the amount of damages, each paid its policy limit of $25,000, a total of $50,000, to the decedent's heirs. The payments were made in unequal shares pursuant to an agreement among the heirs, and plaintiff received $20,500.

Plaintiff then demanded additional compensation from Affinity, which had issued a policy to her, and from Nationwide Insurance Company (Nationwide), which had issued a policy to the decedent, pursuant to the uninsured and underinsured motorist (UM) coverage provided by each policy. The decedent was an insured under plaintiff's policy with Affinity because she was a resident relative, and likewise, plaintiff was an insured under decedent's Nationwide policy. The Nationwide policy had a limit of $25,000 for UM coverage, and plaintiff's policy with Affinity had a limit of $50,000 for such coverage.

Nationwide acquiesced in plaintiff's demand, did not dispute liability, coverage, or the amount of damages, and concluded that its liability under its UM coverage was for one-third of the combined policy limits of the two applicable policies ($75,000 ÷ 3 = $25,000), less a proportional (1/3) offset for the amount plaintiff had already received. Accordingly, after deducting one-third of the amount received by plaintiff from the two liability carriers ($20,500 ÷ 3 = $6,833) from its policy limits of $25,000, Nationwide paid plaintiff $18,167 under its UM coverage.

Affinity denied coverage and liability, asserting that the two UM policies could not be stacked to determine that the vehicle had been underinsured, claimed an offset for the full amount paid to the decedent's heirs, and asserted that plaintiff was not the proper party to make a claim on behalf of the decedent.

Plaintiff then brought this declaratory judgment action, seeking a determination that there was coverage under the Affinity policy in an amount up to $50,000. Affinity moved to dismiss the action under C.R.C.P. 12(b)(5), asserting that the complaint did not state a claim for which relief could be granted. Plaintiff responded with a motion for summary judgment.

The trial court determined that there were no genuine issues of material fact, disagreed with Affinity's arguments, agreed with plaintiff that there was coverage, and entered summary judgment in favor of plaintiff for $36,333 ($50,000 minus 2/3 of $20,500). Affinity now appeals from that judgment on several grounds.

I.

Summary judgment is a drastic remedy and should be granted only upon a clear showing that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo.1988). Because it presents a question of law, we review a summary judgment de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo.1995)

.

II.

Affinity first contends that plaintiff lacks standing to bring her claim because she is not the personal representative of the decedent's estate and is but one of decedent's heirs for purposes of the wrongful death statute. We disagree.

A.

Affinity first argues that plaintiff's claim could only be brought by the personal representative of the decedent's estate. We are not persuaded.

After a person's death, two types of claims may be brought against the person or persons who caused the death. Statutorily defined and limited damages are available to certain enumerated persons under the wrongful death statutes. See §§ 13-21-201 through XX-XX-XXX, C.R.S.2000. In addition, the personal representative of the estate may bring a claim for other, specified damages on behalf of the estate pursuant to the survival of claims statute. See § 13-20-101, C.R.S. 2000.

Affinity misconstrues the nature of plaintiff's underlying claim, which is plainly based upon the wrongful death statutes and allegations that her now deceased sister wrongfully caused their mother's death. Plaintiff is not asserting a claim for coverage under Affinity's policy based upon the survival statute.

If the decedent is unmarried at the time of death, as was decedent here, a wrongful death claim may be brought "by the heir or heirs of the deceased." Section 13-21-201(1)(a)(IV), C.R.S.2000. The phrase "heir or heirs" in this context means the lineal descendents of the deceased. Whitenhill v. Kaiser Permanente, 940 P.2d 1129 (Colo.App.1997).

Therefore, because it is undisputed that plaintiff is a lineal descendent of the decedent, plaintiff has standing to assert a wrongful death claim for the death of her mother, in which claim the personal representative of the mother's estate has no interest.

B.

Affinity further contends, however, that, even if plaintiff's underlying claim is in the nature of a wrongful death claim, she may not assert a claim under the UM provisions of its policy because only the decedent, and not plaintiff, is the insured party for purposes of UM coverage under these circumstances. Again, we are not persuaded.

Section 10-4-609(4), C.R.S.2000, provides in pertinent part that:

Uninsured motorist coverage shall include coverage for damage for bodily injury or death which an insured is legally entitled to collect from the owner or driver of an underinsured motor vehicle. (emphasis added)

This statute, then, requires UM coverage to include coverage for damages that "an insured is legally entitled to collect from the owner or driver of an underinsured vehicle," under any legal theory of recovery, resulting from bodily injury or death. While Affinity would have us read into the statute an implicit requirement that the insured who is entitled to collect damages must be the same person who suffered the bodily injury or death, the statute contains no such requirement, and because it is unambiguous, we must apply it as it is written. See Vaughan v. McMinn, 945 P.2d 404 (Colo. 1997)

.

Here, the statute conditions an insured's right to collect UM benefits only on that insured's legal entitlement to collect damages for bodily injury or death suffered by an insured. See Farmers Insurance Exchange v. Chacon, 939 P.2d 517 (Colo.App.1997)

(neither the statute nor the policy language at issue required coverage for derivative claims by children upon the death of their mother who was not an insured under a UM policy); Kline v. American States Insurance Co., 924 P.2d 1150 (Colo.App.1996).

The wrongful death statute creates a legal entitlement for a surviving spouse and other heirs to collect damages from a tortfeasor, separate and distinct from any tort claim of the decedent that may survive. Clearly, therefore, the persons enumerated in the wrongful death statutes are persons entitled to collect damages as a result of a death caused by an uninsured or underinsured motorist. Hence, because plaintiff here is an insured under the Affinity policy, she is a proper party under § 10-4-609(4) to assert a claim under that policy's UM coverage.

C.

Affinity also contends that plaintiff may not, individually, bring a claim for unrecovered wrongful death damages because such a wrongful death claim properly belongs to all the heirs jointly. Again, we are not persuaded.

The question whether the other heirs would be proper or necessary parties in an action to recover under the wrongful death statute is irrelevant to our consideration of the claim asserted here. The claim asserted by plaintiff is for benefits allegedly payable under the Affinity policy. And, decedent's other heirs are not insured under the Affinity policy. Thus, they have no interest in, and they would, therefore, lack standing to assert, a claim for UM coverage in this declaratory judgment action.

Accordingly, we conclude that plaintiff may assert a claim for coverage under the Affinity policy for her own losses, in her own name, without joining the other heirs as necessary parties.

III.

Affinity next contends that the vehicle driven by plaintiff's sister was not underinsured within the meaning of its policy and the statute and that, therefore, there is no coverage under the express terms of the UM provisions of the policy. We disagree.

Section 10-4-609(4) provides in pertinent part that:

An underinsured motor vehicle is a land motor vehicle, the ownership, maintenance, or use of which is insured or bonded for bodily injury or death at the time of the accident, but the limits of liability for bodily injury or death under such insurance or bonds are:

(a) Less than the limits for uninsured motorist coverage under the insured's policy; or

(b) Reduced by payments to persons other than an insured in the accident to less than the limits of uninsured motorist coverage under the insured's policy. (emphasis added)

Affinity's policy issued to plaintiff contains similar provisions, and it appears that Affinity's policy intends to provide the minimum UM coverage required by statute. See Farmers Insurance Exchange v. Dotson, 913 P.2d 27 (Colo.1996)

(an insurance policy provision that dilutes, conditions, or limits statutorily mandated minimum coverage is, to that extent, void as...