Murphy v. Dairyland Ins. Co.
Decision Date | 08 October 1987 |
Citation | 747 P.2d 691 |
Docket Number | 86CA0698 |
Parties | James E. MURPHY, Plaintiff-Appellant, v. DAIRYLAND INSURANCE COMPANY, Defendant-Appellee. . III |
Court | Colorado Court of Appeals |
Pelton and Pelton, Bradford Pelton, Colorado Springs, for plaintiff-appellant.
Hall & Evans, E. William Shaffer, Jr., Brooke Wunnicke, Denver, for defendant-appellee.
Plaintiff, James Murphy, appeals the summary judgment entered against him in his suit to collect personal injury protection (PIP) benefits under an insurance policy issued by the defendant, Dairyland Insurance Company (Dairyland). The policy sued upon was issued to Bernard E. Taylor (the insured), who was driving an automobile with the consent of the owner and with plaintiff as a passenger when that vehicle was involved in an accident. The summary judgment was entered either because plaintiff was late in responding to Dairyland's motion therefor, or because the court concluded that the insured's policy did not provide PIP benefits to any passenger. Although the district court gave no reasons for the entry of its order, we address both issues because Dairyland contends that the trial court, in either event, reached the right result. We conclude that, if the judgment was premised upon the lateness of plaintiff's response to the motion, the trial court abused its discretion. We also conclude that the judgment could not properly be grounded upon the PIP provisions of Dairyland's policy because that policy does not comply with the pertinent statute. We therefore reverse the judgment.
The insured did not own an automobile. Nevertheless, he purchased an automobile insurance policy from Dairyland that provided liability, uninsured motorist, and PIP coverages. The owner of the vehicle driven by him had no insurance.
Of course, since the insured had no vehicle to insure, none was described in his policy; in the space provided in the policy declarations for a "description of vehicle," there appeared the typed phrase, "named operator." An endorsement applicable only to the liability coverage provided that the policy insured "any car used" by the insured, "whether owned or not." Further, in what Dairyland referred to as "plain talk" provisions, its policy said that it insured "any car described on the declarations page," as well as "other cars you use with the permission of the owner."
However, the specific PIP provisions of the policy, which by the policy terms supersede any inconsistent general provisions, provide benefits to a passenger, who is not related to the insured, only for bodily injuries received while "occupying the insured motor vehicle." Those provisions define an "insured motor vehicle" as one, inter alia, "of which the named insured is the owner." It was on the basis of these latter provisions that Dairyland denied that the policy issued to the insured provided any PIP benefits to a non-related passenger such as plaintiff.
Plaintiff's response to Dairyland's motion for summary judgment was a cross-motion for summary judgment and supporting brief that were filed five days after the date the pre-trial order called for his response to Dairyland's motion to be filed. The order granting Dairyland's motion was entered four days before that cross-motion was filed. However, the order did not indicate whether the court granted Dairyland's motion because it considered plaintiff to have confessed it by not filing a timely response, see C.R.C.P. 121 § 1-15, or because it had concluded that Dairyland's motion was meritorious.
Dairyland's motion for summary judgment was anticipated by the parties' stipulated pre-trial order that set a date for its filing and that allowed plaintiff to file a response within 30 days. On the 31st day following its filing, the district court entered its order, which contained no explanation for its action.
C.R.C.P. 121 § 1-15 is by its language applicable to all written motions not made during trial, and it provides that the failure of a responding party to file a brief opposing a motion "may be considered a confession of the motion." We assume that this rule provision is applicable to motions for summary judgment.
However, the general rule is that a party moving for such a judgment must affirmatively establish his right thereto; the failure of the party against whom such a motion is filed to present controverting affidavits or other evidentiary materials does not, in itself, provide a proper basis for the entry of such a judgment. Ginter v. Palmer & Co., 196 Colo. 203, 585 P.2d 583 (1978).
Moreover, unlike orders granting many other pre-trial motions, an order granting a motion for summary judgment is one which may finally determine substantive rights and may, indeed, terminate the litigation. If an order granting such a motion is based upon the quoted provision of C.R.C.P. 121, it is, in effect, the equivalent of the entry of a default judgment. And, under C.R.C.P. 55(b)(2) a default judgment may not be entered against a party who has appeared in the action, except upon three days' notice of the application therefor.
The distinctive nature of a motion for summary judgment does not lead us to conclude that C.R.C.P. 121 is inapplicable thereto, or that C.R.C.P. 55(b)(2) must be followed in every case where a summary judgment is based upon the confession provisions of C.R.C.P. 121. In this case, however, since the due date of plaintiff's response was established by stipulation, and since the district court's action was taken only a single day after that due date, without inquiry of, or notice to, the plaintiff, we conclude that, if the court's action was grounded upon the provisions of C.R.C.P. 121, such action constituted an abuse of discretion. See Bankers Union Life Insurance Co. v. Fiocca, 35 Colo.App. 306, 532 P.2d 57 (1975).
We also conclude that the judgment is erroneous even if it was not based upon C.R.C.P. 121, but was based upon the merits of Dairyland's motion.
It is the PIP endorsement to the Dairyland policy that prescribes the circumstances under which PIP benefits are payable. Included within the PIP endorsement is a series of definitions, and they control the extent of the PIP coverage insofar as they may differ from the definitions contained elsewhere in the policy. Under these PIP definitions, an "insured motor vehicle" is one that is owned by the named insured.
Since the liability coverage under the Dairyland policy extends to any vehicle used by the insured, whether owned by him or not, that coverage of the policy extended to the vehicle involved here. However, the vehicle driven by the insured was not one owned by him. By the express, unambiguous terms of the PIP endorsement, PIP coverage did not extend to unrelated passengers riding with the insured in that vehicle. Thus, the policy's PIP coverage did not extend to plaintiff.
Any policy providing PIP benefits must comply with the requirements of the Colorado Auto Accident Reparations Act (Auto Reparations Act), § 10-4-701, et seq., C.R.S., and any policy provision inconsistent with that statute's provisions is void. See Trinity Universal Insurance Co. v. Hall, 690 P.2d 227 (Colo.1984) ( ); Meyer v. State Farm Mutual Automobile Insurance Co., 689 P.2d 585 (Colo.1984) ( ).
Hence, since the language of the Dairyland policy operates to exclude passengers from its PIP coverage, the issue presented is whether such restriction violates Colorado's public policy as that public policy is reflected in the provisions of the Auto Reparations Act. We conclude that it does.
The Auto Reparations Act generally requires "every owner of a motor vehicle," who operates, or who allows the operation of, that vehicle on the public highways of this state, to have in full force and effect an insurance policy providing the PIP benefits described in that statute. Section 10-4-705(1), C.R.S. (1986 Cum.Supp.). For purposes of the benefits required to be provided, the Auto Reparations Act establishes three categories of claimants. The "named insured" is covered when his injuries are sustained in an accident "involving any motor vehicle." Section 10-4-707(1)(a), C.R.S. Likewise, injuries sustained by a "relative" of the named insured qualify for benefits if they result from an accident involving any motor vehicle. Section 10-4-707(1)(b), C.R.S. For "any other person," however, the statute requires that benefits be provided only if the injury occurs while that other person is "occupying the described motor vehicle." Section 10-4-707(1)(c), C.R.S. (emphasis supplied). The "described motor vehicle" is the one "described in the complying policy." Section 10-4-703(4), C.R.S.
Section 42-4-1213, C.R.S. (1984 Repl.Vol. 17), however, prohibits anyone from operating a motor vehicle within this state without coverage under a policy that complies with the Auto Reparations Act. Thus, there is imposed upon...
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