Prudential Property and Cas. Ins. Co. v. LaRose, 95CA0349
| Decision Date | 02 May 1996 |
| Docket Number | No. 95CA0349,95CA0349 |
| Citation | 919 P.2d 915 |
| Parties | PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Plaintiff-Appellant, v. David LaROSE and Denise LaRose, Defendants-Appellees. . IV |
| Court | Colorado Court of Appeals |
Watson, Nathan & Bremer, P.C., Howard W. Bremer, Joseph J. Fraser, III, Denver, for Plaintiff-Appellant.
Solano Law Offices, Manuel J. Solano, Anita R. McGann, Northglenn, for Defendants-Appellees.
Opinion by Judge BRIGGS.
In this action for declaratory judgment, plaintiff, Prudential Property and Casualty Insurance Company (insurer), appeals the summary judgment entered in favor of defendants, David LaRose and Denise LaRose (insureds). The insurer contends the trial court erred in finding that the insureds' car insurance policy covered the motorcycle accident at issue, in denying its motion to amend the complaint, in failing to apply one of the policy's exclusions, and in finding the insureds gave adequate notice of the claim. We affirm.
The automobile insurance policy issued to the insureds included underinsured motorist (UIM) coverage. While the policy was in effect, the insured David LaRose was injured when the motorcycle he was riding while on duty as a police officer was struck by a car. After learning that the owner of the car was underinsured, the insureds filed a claim under their policy.
The insurer filed this action, seeking an order that it was not obligated to the insureds because the policy excluded UIM coverage for bodily injury sustained while an insured is using a regularly used non-owned car and because the insureds failed to provide notice as required by the policy. The insurer later sought to amend its complaint to add a claim that, even ignoring policy exclusions, the policy's UIM coverage did not extend to the insureds' claim.
The insurer and insureds each filed motions for summary judgment. After a hearing, the trial court concluded that the policy was ambiguous and thus should be construed to provide coverage and that the exclusions were not applicable. It further found that the insureds had given timely notice of the claim. The court therefore granted the insureds' motion for summary judgment.
I.
The insurer asserts the trial court erred in finding that the policy provided UIM coverage for an insured who is struck by a motor vehicle while the insured is riding a motorcycle. We disagree.
The policy's description of the insurer's UIM obligation includes the following statement:
If you have this coverage (see the Declarations), we will pay up to our limit of liability for bodily injury or property damage that is covered under this part when an insured (whether or not occupying a car ) is struck by an uninsured or underinsured motor vehicle. (emphasis added)
However, a separate section defining "Who Is Insured" includes the following statements:
You and a resident relative are insured while using your car or a substitute car covered under this part.... You and a resident relative are insured while using a non-owned car. ... You and a resident relative are insured if hit by an uninsured or underinsured motor vehicle while a pedestrian. (emphases added)
Whether contract provisions are ambiguous is a question of law. See Fire Insurance Exchange v. Rael, 895 P.2d 1139 (Colo.App.1995). Ambiguous or inconsistent provisions of an insurance contract are to be construed against the insurer, as the drafter, and in favor of providing coverage to the insured. State Farm Mutual Automobile Insurance Co. v. Nissen, 851 P.2d 165 (Colo.1993).
Here, the insurer claims that an insured riding a motorcycle is not entitled to UIM benefits because the risk of being struck by a car while riding a motorcycle is not included in the section defining who is insured for UIM purposes. We agree with the insurer that the definitional phrases, "while using your car," "while using a non-owned car," and "while a pedestrian" do not include a motorcyclist hit by an underinsured driver. However, we also agree with the insureds that the separate express obligation to provide UIM coverage if an insured is struck by an underinsured motor vehicle, "whether or not occupying a car," is a broad grant of UIM coverage that includes an insured struck while using a motorcycle.
The insurer argues that to read the insurer's obligation provision in this manner renders meaningless the phrase in that provision, "that is covered under this part." This reference directs the reader to the definitional section, which, as noted, does not include a motorcyclist within the definition of an insured for UIM purposes.
Nevertheless, the reference in the obligation provision, "whether or not occupying a car," contradicts the more limited language in the definitional section. The insurer's interpretation renders this phrase equally meaningless.
When construed as they would be understood by a person of ordinary intelligence, the policy provisions are in conflict. Hence, they are ambiguous and must be construed against the insurer and in favor of coverage to the insured. See State Farm Mutual Automobile Insurance Co. v. Nissen, supra.
Our construction of the contract is supported by the legislative intent underlying the uninsured and underinsured motorist statute. Its purpose is in part to place the insured in the same position as if the underinsured's coverage included liability limits equal to that of the insured. See State Farm Mutual Automobile Insurance Co. v. Nissen, supra; State Farm Mutual Automobile Insurance Co. v. Bencomo, 873 P.2d 47 (Colo.App.1994); § 10-4-609(4), C.R.S. (1994 Repl.Vol. 4A); see also Keelan v. Van Waters & Rogers, Inc., 820 P.2d 1145 (Colo.App.1991), aff'd, 840 P.2d 1070 (Colo.1992)(statutory law that pertains to the terms of a contract is considered part of that contract); but cf. Allstate Indemnity Co. v. Gonzales, 902 P.2d 953 (Colo.App.1995). It is undisputed in ...
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