Spaur v. Allstate Ins. Co.

• Decision Date: 12 December 1996
• Docket Number: No. 95CA1115,95CA1115
• Citation: 1996 WL 714486,942 P.2d 1261
• Parties: 20 Colorado Journal 1833 Richard E. SPAUR, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, a Foreign Corporation, Defendant-Appellee. . IV
• Court: Colorado Court of Appeals

Page 1261

942 P.2d 1261

20 Colorado Journal 1833

Richard E. SPAUR, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, a Foreign Corporation, Defendant-Appellee.

No. 95CA1115.

Colorado Court of Appeals Div. IV.

Dec. 12, 1996.

Rehearing Denied Jan. 16, 1997.

Certiorari Denied Sept. 15, 1997.

Barbara J. Furutani, Denver, for Plaintiff-Appellant.

Holland & Hart, Brian Muldoon, Denver, for Defendant-Appellee.

Opinion by Judge DAVIDSON.

This is an appeal from a declaratory judgment entered by the trial court in favor of defendant, Allstate Insurance Company, which determined that plaintiff, Richard E. Spaur, was not entitled to payment for his loss of consortium claim under his uninsured motorist policy. The issue presented is whether the provision of the policy which aggregates derivative claims with the claims of the person primarily injured is ambiguous or in violation either of public policy or the rule of reasonable expectations. We hold that the provision is both unambiguous and valid. Thus, we affirm.

The facts are not disputed. Plaintiff's wife was severely injured in a motor vehicle accident. Plaintiff was not in the car or near the site of the accident. Plaintiff and his wife were insured under a policy issued by defendant which provided, as pertinent here, uninsured motorist coverage with $25,000 per person and $50,000 per accident limits. Defendant paid plaintiff's wife the per person policy limit of $25,000.

Plaintiff sought payment of $25,000 for loss of consortium as a result of his wife's injuries. Defendant denied payment on the ground that, under the policy, plaintiff's wife had been paid the per person policy limit of $25,000 and plaintiff's claim was subject to that limit. Plaintiff filed a complaint for declaratory judgment, contending that the policy language was ambiguous, contrary to public policy, and contrary to the rule of reasonable expectations. The trial court disagreed, and plaintiff filed this appeal.

The policy limits uninsured motorist coverage as follows:

Limits of Liability

The Uninsured Motorists Coverage for Bodily Injury limit stated on the declarations page is the maximum amount payable for this coverage by this policy for any one accident. This means the insuring of more than one auto for other coverages will not increase our limit of liability beyond the amount shown in the declarations.

Regardless of the number of insured autos under this coverage, the specific amount shown on the declarations is the maximum that we will pay under this coverage for:

1. 'each person' for damages arising out of bodily injury to any one person in any one motor vehicle accident, including damages sustained by anyone else as a result of that injury.

2. 'each accident' for damages arising out of bodily injury to two or more persons in any one motor vehicle accident. This 'each accident' limit is subject to the 'each person' limit. (emphasis supplied)

The policy defines "bodily injury" to mean "bodily injury, sickness, disease or death."

A.

Plaintiff first contends that the "each person" provision of the policy is ambiguous and, thus, must be read to provide separate and independent per person coverage for his loss of consortium claim. We disagree.

When the language of an insurance contract is clear and unambiguous on its face, it must be upheld as written. Courts may neither rewrite an unambiguous policy nor force a strained construction in order to resolve it against the insurer. Chacon v. American Family Mutual Insurance Co., 788 P.2d 748 (Colo.1990).

By its plain language, the policy provides that payment up to the per person coverage limit, here $25,000, will be made to "each person" who has sustained damages arising out of his or her bodily injury. The "each person" limit is unambiguously set forth as the total limit for all damages arising out of bodily injury to one person in any one motor vehicle accident. Clearly included within the damages to the injured person are "damages sustained by anyone else" as a result of the bodily injury suffered by that person.

Plaintiff's assertion notwithstanding, this provision simply cannot be read to provide, as plaintiff suggests, that any person who also has suffered damage from injury to an insured person has a separate claim up to the "each person" limit so long as one insured person has suffered bodily injury. To the contrary, the provision plainly restricts coverage to those who have sustained bodily injury and includes within that coverage any derivative claims of other persons. Compare Lampton v. United Services Automobile Ass'n, 835 P.2d 532 (Colo.App.1992) (construing similar policy language); Kinsella v. Farmers Insurance Exchange, 826 P.2d 433 (Colo.App.1992) (construing similar policy language); and Arguello v. State Farm Mutual Automobile Insurance Co., 42 Colo.App. 372, 599 P.2d 266 (1979) (construing similar policy language) with Sparks v. American Fire & Indemnity Co., 769 P.2d 501 (Colo.App.1989) (coverage included separate derivative claims).

B.

Plaintiff also contends that it is contrary to public policy to allow the aggregation of his loss of consortium claim with his wife's bodily injury claim and to subject them both to a single "each person" coverage limit. Specifically, plaintiff argues, because uninsured motorist coverage must permit an injured person to recover compensation to the same extent that recovery would be permitted against an insured motorist, see Union Insurance Co. v. Houtz, 883 P.2d 1057 (Colo.1994), public policy requires that he be paid here because he has a separate personal injury claim against the tortfeasor motorist for loss of consortium. We disagree.

As pertinent here, insurers offering automobile liability coverage must, by statute, also extend uninsured motorist coverage. Aetna Casualty & Surety Co. v. McMichael, 906 P.2d 92 (Colo.1995); § 10-4-609, C.R.S. (1994 Repl.Vol. 4A). The purpose of imposing this duty on the insurer is to protect the insured against the risk of inadequate compensation resulting from injuries and damages incurred in an automobile accident with an uninsured or underinsured motorist. Allstate Insurance Co. v. Parfrey, 830 P.2d 905 (Colo.1992).

It is a violation of public policy for terms or provisions of an insurance contract to attempt to dilute, condition, or limit statutorily mandated coverage. See Terranova v. State Farm Mutual Auto. Insurance Co., 800 P.2d 58 (Colo.1990). Conversely, a policy provision which is in compliance with the specific requirements of the Colorado Auto Accident Reparations Act, ipso facto, conforms to the public policy codified within that Act. See Shean v. Farmers Insurance Exchange, 934 P.2d 835 (Colo.App. 1996).

As relevant here, §§ 10-4-706(1)(a) and 10-4-609(1), C.R.S. (1994 Repl.Vol. 4A) specifically provide that motor vehicle liability and uninsured motorist policies, respectively, must provide coverage for "bodily injury" or death.

However, "[n]othing [in these statutes] suggests that the General Assembly considered loss of consortium to be a separate bodily injury which must be insured against in all insurance policies." Arguello v. State Farm Mutual Insurance Co., supra, 42 Colo.App. at 375, 599 P.2d at 268. Although a person who has lost the society, companionship, and services of his or her spouse has sustained a personal injury, such loss is "not a bodily injury within the commonly accepted meaning of that term." Lampton v. United Services Automobile Ass'n, supra, 835 P.2d at 534. See 1 A. Widiss, Uninsured & Underinsured Motorist Coverage § 12.4 (1990) ("Courts have almost uniformly held that persons who sustain consequential damages have not sustained bodily injuries in an accident and, therefore, the Limit of Liability for one injured person applies regardless of how many uninsured motorist insurance claims there may be by persons who suffered consequential damages." (emphasis in original)).

Thus, to be in compliance with the requirements of the Colorado Auto Accident Reparations Act, an insurer need not offer either liability or uninsured motorist insurance which separately covers a loss of consortium claim. And, in that regard, insofar as plaintiff insists that he must be compensated as if the tortfeasor motorist here was not uninsured, we note simply that a tortfeasor who is insured in compliance with Colorado law need not have liability coverage for a separate loss of consortium claim.

Plaintiff points out, however, that whereas the other provisions of the Colorado Auto Accident Reparations Act require coverage for "bodily injury or death," § 10-4-609(1) describes persons to be protected by uninsured motorist coverage as those who have suffered not only "bodily injury or death," but also "sickness or disease." He argues that his loss of consortium is a "sickness" and that its inclusion in the uninsured motorist provision of the statute requires that his claim for damages for such loss be allowed a separate recovery limit.

To the contrary, however, consortium refers to affection, society, services, companionship, aid and comfort given by a spouse. See CJI-Civ.3d 6:6 (1991). By definition, then, the loss of such consortium is no more a "sickness" of the noninjured spouse than it is a "bodily injury." See Gonzales v. Allstate Insurance Co., 122 N.M. 137, 921 P.2d 944 (1996) ("bodily injury, sickness, disease or death" constitutes injury to the physical body rather than mental or emotional injuries); GEICO v. Fetisoff, 958 F.2d 1137 (D....