COLORADO AUTOMOBILE ACCIDENT LITIGATION & INSURANCE HANDBOOK

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1 COLORADO AUTOMOBILE ACCIDENT LITIGATION & INSURANCE HANDBOOK FIRST EDITION GREGORY R. GIOMETTI BRUCE J. KAYE Legal Editor Supplemented January 2004 May 2007 CONTINUING LEGAL EDUCATION IN COLORADO, INC. COLORADO BAR ASSOCIATION DENVER BAR ASSOCIATION 2007

2 TABLE OF CONTENTS Chapter 1 OVERVIEW OF THE COLORADO NO-FAULT ACT 1.1 INTRODUCTION 1.2 OVERVIEW OF THE NO-FAULT ACT Chapter 2 INTRODUCTION TO PIP COVERAGE 2.1 INTRODUCTION 2.2 PURPOSE OF THE NO-FAULT ACT C.R.S STATUTORY DEFINITIONS C.R.S ADMINISTRATIVE AUTHORITY C.R.S COVERAGE MANDATORY C.R.S REQUIRED PIP COVERAGES C.R.S PERSONS ENTITLED TO BENEFITS C.R.S RIDESHARING ARRANGEMENTS C.R.S TIMELINESS OF PAYMENT; ENFORCEMENT PROVISIONS C.R.S ASSIGNMENTS OF BENEFITS C.R.S TIMELY NOTIFICATION TO INSURER C.R.S DUTIES OF HEALTH CARE PROVIDERS C.R.S COORDINATION OF BENEFITS C.R.S OPTIONAL PIP COVERAGES C.R.S REQUIRED INTERSTATE AND INTRASTATE COVERAGES C.R.S POLICY CONDITIONS AND EXCLUSIONS C.R.S LIMITATIONS ON RECOVERY OF PIP BENEFITS B SUBROGATION C.R.S (5/07) TOC-1

3 Colorado Automobile Accident Litigation and Insurance Handbook 2.18 CLAIMS AGAINST NONCOMPLYING TORTFEASORS C.R.S SELF-INSURERS C.R.S SUBROGATION INTERCOMPANY ARBITRATION C.R.S EXHIBITS Exhibit 2A Primacy of PIP Coverage Exhibit 2B No-Fault Act Colorado Revised Statutes and Annotations Chapter 3 PIP COVERAGE ISSUES 3.1 GENERAL PRINCIPLES 3.2 SCOPE OF MEDICAL COVERAGE UNDER C.R.S (1)(b) Injury As Condition Precedent To Coverage Mileage Expenses Covered As Medical Benefit 3.3 CAUSATION ISSUES UNDER C.R.S Causal Connection Existed Where Insured Struck By Awning On Vehicle Used As Refreshment Stand Causal Connection Existed Where Injuries Occurred While Maintenance Work Was Being Performed On Vehicle Causal Connection Existed Where Injuries Occurred While Camper Shell Was Being Installed On Pickup Causal Connection Did Not Exist Where Injury Occurred Away From Vehicle Causal Connection May Exist For Injuries Due To Shooting Causal Connection May Exist For Injuries Due To Assault Applicability Of Thin Skull Rule To PIP Claims Injuries Sustained By Insured During Sexual Assault Which Occurred In Her Car Did Not Arise Out Of The Use Of Her Car, And Insurer Was Not Obligated To Provide PIP or UM Coverage 3.4 REHABILITATION COVERAGE UNDER C.R.S (1)(c) Rehabilitation Coverage Does Not Include Subsistence Allowance Job Search And Placement Services Are Not A Covered Rehabilitation Benefit TOC-2 (5/07)

4 Table of Contents Insured s Status As A Student Not Automatic Disqualification For Occupational Retraining Benefits Insured May Be Entitled To Payment For Purchase Of Hot Tub As A Rehabilitative Benefit Rehabilitation Benefits Are Limited As To Both Time And Amount 3.5 WAGE LOSS AND ESSENTIAL SERVICES BENEFITS UNDER C.R.S (1)(d) Eligibility For Wage Loss Benefits Ends After Expiration Of 52 Weeks From Accident Calculation Of Gross Income For Self-Employed Person Loss Of Specific Amount, Beginning On Specific Date, Is Prerequisite To Recovery Of Wage Loss Benefits Cost Of Replacement Worker Is A Proper Measure Of Loss Of Gross Income For A Self-Employed Person Being Employed On Date Of Accident Not A Prerequisite For Recovery Of Wage-Loss Benefits Wage-Loss Benefits May Be Recoverable Even If Insured Receives Sick Leave From Employer Actual Expense Not Prerequisite To Coverage For Essential Services 3.6 PERSONS ENTITLED TO PIP COVERAGE UNDER C.R.S (1)(a) THROUGH (c) Coverage For Pedestrians Under C.R.S (1)(c) a Coverage only exists for pedestrian injured by described motor vehicle b Person struck by awning of vehicle used as refreshment stand was entitled to PIP benefits as a pedestrian c Passenger on motorcycle was not a pedestrian d The term pedestrian includes all persons who are not riding in or upon a vehicle or who are not in the immediate act of entering into or alighting from a vehicle e Motorcyclist, who was struck by another vehicle after being ejected from motorcycle, was a pedestrian f For purposes of PIP coverage, an accident involving a pedestrian may arise out of the use of multiple vehicles PIP Coverage For Motorcyclists a Insured injured while driving his own motorcycle not entitled to PIP coverage under C.R.S (1)(a) b Under C.R.S (1)(b), resident relative of named insured was entitled to PIP coverage when he was injured when a pickup truck struck him while he was riding his off-road motorcycle (5/07) TOC-3

5 Colorado Automobile Accident Litigation and Insurance Handbook c Policy provision excluding PIP coverage for insured who was injured while riding her own motorcycle was valid and enforceable d Analysis of PIP coverage for motorcyclists e Conclusion PIP Coverage For Passengers a PIP coverage extends to passengers of rented vehicles, even if driven by an unauthorized driver b As exception to general rule, operator s policy provides coverage to passenger in uninsured vehicle c Under C.R.S (1)(c), PIP coverage extends only to passengers injured in an accident occuring in Colorado d Passenger riding in uninsured vehicle is not entitled to PIP coverage under policy insuring driver e Passenger in vehicle driven by driver specifically denied permission to operate vehicle by owner is not entitled to PIP coverage f Under initial permission rule, only passengers who use insured vehicle with knowledge that named insured has prohibited such use are excluded from PIP coverage PIP Coverage For Resident Relatives a Resident relative was not entitled to PIP coverage for injuries sustained while operating owned but uninsured vehicle b Resident relative was not entitled to PIP coverage for injuries he sustained while operating his own motorcycle, not actually covered by the No-Fault Act PIP Coverage Required Under Garage Policy PIP Coverage For A Named Insured a Customer who rents vehicle from self-insured rental company is the named insured for purposes of PIP coverage, as well as other coverages Ownership Of Vehicle Is Relevant To Determination Of PIP Coverage How Ownership Is Determined When There Is A Conditional Sale Of A Vehicle 3.7 PRIMACY OF PIP COVERAGE UNDER AS GENERAL RULE, COVERAGE APPLICABLE TO VEHICLE OUT OF USE OF WHICH ACCIDENT AROSE IS PRIMARY Primacy Rules Of C.R.S Are Applicable Only To PIP Coverage Exception To General Primacy Rule Operator s Policy Is Primary For PIP Coverage Where Operator Neither Owns Vehicle Nor Is An Employee Of Owner TOC-4 (5/07)

6 Table of Contents Exception To General Rule Where Ridesharing Arrangement Is Involved, Each Injured Person Is Afforded Primary PIP Coverage Through His Or Her Own Complying Policy PIP Coverage Is Primary To Medicare Interplay Between Medicare And PIP Coverage Workers Compensation Coverage Is Primary To PIP Coverage a Release of workers compensation benefits will release claim for PIP benefits as well b Language in PIP policy stating that any amount paid was to be reduced by any amount actually provided under workers compensation law made PIP coverage secondary to workers compensation coverage 3.8 REMEDIES UNDER C.R.S Recovery Of Attorney Fees a Insurer s belief it was acting in good faith does not negate insured s right to recover attorney fees b Calculation of reasonable attorney fees c Attorney fees must be apportioned between claims under C.R.S and other claims d Finding that PIP benefits were not paid when due is not prerequisite to an award of attorney fees under C.R.S (1.7) Treble Damages For Willful And Wanton Denial Or Delay Of Payment a Claim for willful and wanton denial of PIP benefits must be proved by preponderance of the evidence b Insurance company s payment of disputed benefits before insured files lawsuit divests insured of right to recover damages, attorney fees, or statutory interest, but insured may still recover treble damages for willful and wanton failure to pay benefits in a timely manner c Insured who proves insurer willfully and wantonly delayed or denied payment of PIP benefits is not entitled to recover treble damages based upon medical expenses that were not incurred due to insurer s wrongful refusal to pay for treatment d Treble damages provision of C.R.S does not preempt common law tort claims arising from the same conduct e Definition of willful and wanton failure to pay benefits under C.R.S (1.5)(d) Claims for willful and wanton denial of PIP benefits and insurance bad faith are not identical, as willful and wanton denial of benefits is merely a subset of bad faith (5/07) TOC-5

7 Colorado Automobile Accident Litigation and Insurance Handbook f Arbitration panel s finding that insurer did not willfully and wantonly deny PIP benefits may bar bad faith claim g A finding that insurer was guilty of outrageous conduct necessarily means its conduct was willful and wanton Establishing a claim for willful and wanton conduct requires proof that the insurer acted without justification and in disregard of the insured s rights h In action to recover unpaid PIP benefits, award of treble damages includes unpaid benefits and is not in addition to unpaid benefits Insurer s conduct during course of litigation may be considered by trial court to increase amount of punitive damages awarded by jury i No-Fault Act s treble damages remedy for willful and wanton failure to pay PIP benefits does not preempt common law claim for recovery of non-economic damages for willful and wanton breach of contract Timeliness Of Payment 30-Day Time Period For Payment Of Benefits Under C.R.S (1) Does Not Begin To Run Until Insurer Receives Reasonable Proof That The Expenses Incurred Were Reasonable, Necessary, And Causally Related To The Accident Recovery Of 18 Percent Interest On PIP Benefits Post-Judgment Interest Rate On PIP benefits Awarded As Damages Is 8 Percent Insured May Recover Interest, Attorney Fees, And Treble Damages Pursuant To C.R.S Only Where PIP Carrier Fails To Pay Minimum Coverages Required By No-Fault Act Mandatory Arbitration Under The Former Version Of C.R.S (1.5) a Constitutionality of former statute requiring mandatory arbitration of disputes over PIP benefits In An Action To Recover Overdue PIP Benefits, Insurer May Be Required To Pay 18 Percent Statutory Interest Under C.R.S (1.8) To Insured s Assignee 3.9 PENALTY PROVISION OF C.R.S DUTY OF PHYSICIAN TO NOTIFY PIP CARRIER OF TREATMENT NOTICE REQUIREMENT INAPPLICABLE TO HOSPITALS 3.10 COORDINATION OF BENEFITS UNDER C.R.S FAILURE OF INSURER TO ABIDE BY COORDINATION OF BENEFITS RULE MAY LEAD TO DOUBLE RECOVERY BY INSURED TOC-6 (5/07)

8 Table of Contents 3.11 OPTIONAL COVERAGES UNDER C.R.S (2) Duty Of Insurer To Offer Optional Coverages Reformation Of Policy Optional Coverages Are Applicable To Pedestrians Reformation Of Policy To Include Optional Coverages Remedies Of C.R.S Not Available Where Policy Is Reformed Insurer Is Not Required To Offer Enhanced PIP Coverage To Insured Who Is Not Required To Have PIP Coverage In The First Place Litigation Over Optional PIP Benefits After The Repeal Of The No-Fault Act On July 1, 2003 a Plaintiff s claim against excess PIP carrier for extended PIP benefits was properly dismissed for lack of subject matter jurisdiction because it was not ripe for adjudication b Where PIP endorsement unambiguously included $200,000 aggregate limit on optional PIP benefits, such benefits in reformed policy were capped at that amount c Federal court litigation over extended PIP benefits 3.12 APPORTIONMENT OF PIP BENEFITS INSURER MAY NOT APPORTION PIP BENEFITS WHERE INSURED HAD ASYMPTOMATIC PRE-EXISTING CONDITION 3.13 SUBROGATION CLAIMS FOR RECOVERY OF PIP BENEFITS Subrogation Claims For Recovery Of Workers Compensation Benefits Subrogation Under C.R.S (2) a Exception to general rule against subrogation Subrogation permitted in cases involving private passenger motor vehicles and commercial vehicles b Subrogation permitted only for benefits actually paid c RTD is not entitled to pursue subrogation under C.R.S (2)(a) to recover amounts paid as benefits for passengers injured on a bus Inter-Company Arbitration Under C.R.S a Inter-company arbitration is sole remedy for subrogation claims involving licensed insurers b Inter-company arbitration provisions of C.R.S apply only to claims under C.R.S (2) c Uninsured motorist, who pays PIP benefits as self-insurer, may be entitled to file suit to recover benefits under C.R.S (2) d PIP subrogation claim by self-insurance pool is not subject to mandatory inter-company arbitration (5/07) TOC-7

9 Colorado Automobile Accident Litigation and Insurance Handbook Insurer, As Subrogee, Has No Right To Recover Treble Damages From Another Insurer That Willfully And Wantonly Denies Payment Of PIP Benefits Before Seeking Contribution From Other Insurers, PIP Carrier Must First Pay All Benefits Due Under Its Own Policy Injured Party s Right To Full Recovery Of PIP Benefits a Injured party s right to full recovery is undiminished by subrogation rights of insurer Effect of general release of tortfeasor on insured s right to recover PIP benefits b Subrogation is intended to prevent insured from recovering twice for the same injury c Subrogation claims against workers compensation carriers Workers compensation carrier s obligation to repay PIP carrier in subrogation claim is not limited to minimum PIP benefits required under No-Fault Act 3.14 INSURANCE POLICY PROVISIONS THAT LIMIT, DILUTE, OR CONDITION COVERAGE REQUIRED BY THE NO-FAULT ACT ARE VOID AS CONTRARY TO PUBLIC POLICY An Insurer May Not Insert Policy Language To Vary The Requirements Of The No-Fault Act An Insurer May Not Offset PIP Benefits From Uninsured Motorist Coverage 3.15 NOTICE REQUIREMENTS POLICY PROVISION REQUIRING INSURED TO PROVIDE TIMELY NOTICE OF PIP CLAIM MAY BE EXCUSED 3.16 COVERAGE EXCLUSIONS NAMED DRIVER EXCLUSION PERMITTED BY C.R.S OPERATES TO EXCLUDE ALL COVERAGES UNDER POLICY, INCLUDING PIP COVERAGE FOR A RESIDENT RELATIVE FOR WHOM COVERAGE WOULD OTHERWISE BE REQUIRED 3.17 ASSIGNMENT OF PIP BENEFITS ACTION FOR RECOVERY OF UNPAID BENEFITS BY ASSIGNEE 3.18 APPLICATION OF RULE OF REASONABLE EXPECTATIONS WHERE EXISTENCE OF INSURANCE CONTRACT IS DISPUTED 3.19 ADJUSTMENT OF PIP CLAIMS USE OF INDEPENDENT MEDICAL EXAMINATIONS (IMEs) AND EXAMINATIONS UNDER OATH (EUOs) The PIP Examination Program Comparison With Former System TOC-8 (5/07)

10 Table of Contents a PIP examination program is the exclusive method for obtaining an IME b Process of selecting the PIP examiner intended to be neutral c Specialty of PIP examiner selected to perform the IME Former system d Scope of the PIP IME e PIP IME entitled to presumption of correctness Use of evidence other than findings of PIP examiner f PIP examiner s immunity from suit g PIP examination not necessary for insurer to adjust PIP claim Ultimate responsibility to decide whether treatment is reasonable, necessary, and accident-related rests with insurer h Application of PIP IME process in cases where benefits are provided under a managed care plan In Absence Of Express Provision In Policy, Insurer Cannot Require Claimants To Submit To EUOs Separately, Outside The Presence Of Each Other 3.20 SIGNIFICANT CHANGES IN COLORADO PIP REGULATIONS Regulation Regulation Chapter 4 UNINSURED MOTORIST CLAIMS AND COVERAGE 4.1 INTRODUCTION 4.2 STATUTORY REQUIREMENT FOR INSURERS TO OFFER UM AND UIM COVERAGE 4.3 STACKING OF COVERAGES General Rule Anti-Stacking Clauses Included In A Single Policy Covering More Than One Vehicle Or In Several Policies Issued By The Same Insurer Do Not Violate Public Policy a UM coverage b UIM coverage c Unambiguous anti-stacking provision in UM/UIM coverage is not contrary to doctrine of reasonable expectations Unambiguous Anti-Stacking Clause Will Be Enforced As Written a To determine whether ambiguity exists, policy must be examined as a whole (5/07) TOC-9

11 Colorado Automobile Accident Litigation and Insurance Handbook b Anti-stacking clauses were conspicuous and enforceable even though they were in General Provisions section of the policy; however, policy language did not preclude stacking of coverage by two affiliated companies Ambiguous Anti-Stacking Clause Will Be Construed Against Insurer Stacking Of Limits To Determine Whether A Tortfeasor s Vehicle Is Underinsured a Plaintiff was not entitled to stack policies issued to her and a relative to determine whether tortfeasor s vehicle was underinsured b In determining whether tortfeasor s vehicle is underinsured, separate policies issued to different, unrelated insureds, including claimant, both of which cover claimant, should be stacked, and the aggregated limits should be compared to the limits of the tortfeasor s policies; tortfeasor s vehicle is underinsured if stacked UIM limits exceed tortfeasor s limits Other Insurance And Two Or More Cars Insured Provisions Contained In UM/UIM Coverage Did Not Entirely Prohibit Stacking In Absence Of Explicit Anti-Stacking Endorsement In Policy 4.4 CAUSATION ISSUES The Fact That Injuries Were Directly Caused By The Use Of A Firearm Does Not Negate The Possible Existence Of A Causal Connection Between The Insured s Injuries And The Use Of An Uninsured Motor Vehicle Whether Injuries Are Caused By Accident Must Be Viewed From Standpoint Of Insured Dog Attack, Which Occurred Away From Vehicle, Was Causally Unrelated To Use Or Operation Of Uninsured Vehicle Injuries Of Plaintiff, Who Was Assaulted When Uninsured Vehicle Stopped In Front Of His Car And Passenger In Uninsured Vehicle Got Out And Assaulted Plaintiff With A Wine Bottle, Arose Out Of Use Of Uninsured Vehicle, And Plaintiff Was Entitled To Uninsured Motorist Benefits 4.5 WHO IS AN INSURED FOR PURPOSES OF UM/UIM COVERAGE? WHAT IS AN UNINSURED MOTOR VEHICLE? Minor Child, Who Was Not A Resident Of Her Father s Household, Was Not An Insured Entitled To UM Coverage Under Father s Automobile Insurance TOC-10 (5/07)

12 Table of Contents Wife Of Owner Of Closely Held Corporation, Who Was Designated Driver Under Commercial Auto Policy, Was An Insured Entitled To UM Coverage, Even Though Policy Defined The Corporation As The Only Insured Owner And Officer Of Corporation, Who Was Injured While Riding A Bicycle For Personal Reasons, Was Not An Insured Entitled To UIM Coverage Under Automobile Policy Issued To Corporation Passenger, Who Was Injured While Riding In Vehicle Operated By An Excluded Driver, Was Not An Insured Entitled To UM Coverage Because Policy Provision Purporting To Limit UIM Coverage Was Ambiguous, Party Injured While Riding On A Motorcycle Was An Insured For Purposes Of UIM Coverage Adult Woman Who Witnessed Mother s Death In Bus Crash Was Not An Insured For Purposes Of UIM Coverage Under Parents Auto Insurance Policy And Could Not Recover For Her Emotional Distress In Witnessing Death Where Tortfeasor s Insurer Becomes Insolvent After Accident, Such Vehicle Is Considered An Uninsured Motor Vehicle Vehicle Covered Under Liability Provisions Of A Policy Is Not Uninsured Motor Vehicle For Purposes Of UM Coverage Liability Insurer s Denial Of Coverage Based Upon Policy Exclusion Makes Vehicle Uninsured For Purposes Of UM Coverage An Uninsured Snowmobile, While Being Operated Off Of Public Roads, Is Not Considered An Uninsured Motor Vehicle For Purposes Of UM Coverage Exclusion May Preclude Recovery Of UIM Benefits, Where Insured Receives Compensation Up To UM/UIM Policy Limit From Other UM/UIM Carrier UM Statute Does Not Require Coverage For Injuries Or Death Sustained By Person Not Insured Under The Terms Of The Policy Exclusions For Motorcyclists And Owned But Uninsured Vehicles In UM/UIM Coverage Are Unenforceable, Since Such Exclusions Conflict With The Requirement Of The UM/UIM Statute For Insurers To Provide Coverage For Insured Persons Who Are Legally Entitled To Recover Damages From Owners Or Operators Of Uninsured Motor Vehicles The Words Lives With Applicable To Policy Exclusion Negating UM Coverage For An Insured While Occupying A Non-Covered Vehicle Operated By A Relative Are Ambiguous (5/07) TOC-11

13 Colorado Automobile Accident Litigation and Insurance Handbook Insured Is Entitled To Recover UM Benefits Where Tortfeasor Is Immune From Liability Under The Colorado Governmental Immunity Act Tortfeasor s Failure To Cooperate With Liability Insurer, Which Resulted In A Denial Of Coverage, Made Tortfeasor s Vehicle Uninsured, Permitting Victim Of Accident To Recover Uninsured Motorist Benefits UIM Statute Does Not Require UIM Coverage For Wrongful Death Of A Person Who Is Not An Insured Under The Claimant s Policy Under A Commercial Motor Vehicle Policy, Insurer Cannot Limit UM/UIM Coverage To Persons Occupying A Certain Class Of Vehicles 4.6 WHO IS AN UNINSURED MOTORIST FOR PURPOSES OF UM COVERAGE HIT-AND-RUN ACCIDENTS Requirement Of Physical Contact Between Hit-And-Run Vehicle And Insured Vehicle Is An Impermissible Restriction Of Statutorily Required Coverage Driver Who Withholds Or Falsifies Information May Be Considered Hit-And-Run Motorist Motorist Who Has Liability Coverage, But Who Cannot Be Located For Service Of Process, Is Not An Uninsured Motorist 4.7 UM COVERAGE FOR DERIVATIVE CLAIMS Loss Of Consortium Is Not Bodily Injury Parent s UM Claim For Medical Expenses Incurred By Minor Child Is A Derivative Claim Subject To The Per Person Policy Limit For Bodily Injury Policy Provision Aggregating Loss Of Consortium Claim With Bodily Injury Claim And Subjecting Both To A Single Policy Limit Does Not Violate Public Policy 4.8 RESOLUTION OF UM/UIM CLAIMS ISSUES INVOLVING ARBITRATION AND LITIGATION Arbitration Clause In UM/UIM Coverage Is Not Invalid As Contrary To Public Policy Costs Of Arbitration To Be Borne By Insurer Default Judgment Obtained By Insured Against Tortfeasor May Be Binding Upon Insurer a Consent to sue clause in uninsured motorist coverage is void Insurer has right to intervene in action brought by insured against uninsured motorist TOC-12 (5/07)

14 Table of Contents b Arbitration clause in uninsured motorist coverage is valid and enforceable, but consent to sue clause is void as against public policy Insurer may waive right to arbitration By Failing To Object To Arbitration Award Within 30 days, Insurer May Waive Defense That Arbitration Award Exceeded The Policy Limit Vacating Arbitration Award Due To Misconduct Of Arbitrator Duty Of Arbitrator To Disclose Existence Of Substantial Business Relationship With Party Selecting Her Duty Of Insurer To Maintain Confidentiality Of Medical And Psychiatric Information Disclosed By Insured During Arbitration Proceeding Award Or Judgment In Excess Of Policy Limit Liability Of Insurer For Prejudgment Interest In Excess Of Policy Limit a Trial court may vacate arbitration award in excess of policy limits Insurer generally not liable for prejudgment interest in excess of policy limits b UM carrier may be required to pay prejudgment interest in excess of the policy limits if it has wrongfully withheld benefits due to its insureds c Where arbitration provision authorized arbitrator to determine amount of payment under the policy, and insurer did not raise policy limits or setoffs as affirmative defenses, arbitrator did not exceed authority by awarding insured more than the policy limit d Where UIM arbitration agreement provided that only issue arbitrator was to decide was the amount of damages to which claimant was entitled, arbitrator had no authority to reduce arbitration award by applying policy limit and giving insurer offset for amount paid by tortfeasor Application Of Collateral Estoppel To Arbitration Proceeding Trial Court s Ruling That Underinsured Motorist Was Not Liable For Causing Injuries Precludes Insured From Re-Litigating The Issue In Arbitration Insurers Right To Jury Trial a Where insurer intervenes, or is joined as a defendant, in action brought by insured against uninsured motorist and the uninsured motorist defaults, insurer has no right to a jury trial with respect to issues of liability and damages raised in the tort litigation between the insured and the uninsured motorist (5/07) TOC-13

15 Colorado Automobile Accident Litigation and Insurance Handbook 4.9 EFFECT OF RELEASE OF UNINSURED MOTORIST ON INSURER S LIABILITY RELEASE EXECUTED BY INSURED IN FAVOR OF UNINSURED MOTORIST BARRED UM CLAIM BY INSURED AGAINST INSURER 4.10 LIABILITY OF INSURER FOR ATTORNEY FEES AND PREJUDGMENT INTEREST ON DAMAGES UM Statute Does Not Provide For Insured s Recovery Of Attorney Fees From UM/UIM Carrier Prejudgment Interest On Award Of Damages In UIM Case Is Limited To Interest On Difference Between Damages Awarded And Amount Insured Recovers From Tortfeasor Liability Of Insurer For Prejudgment Interest In Excess Of Policy Limits 4.11 UIM COVERAGE PURSUIT AND EXHAUSTION OF CLAIMS AGAINST UNDERINSURED DRIVER AS PREREQUISITE TO COVERAGE Exhaustion Of Tortfeasor s Liability Limits Not A Prerequisite To UIM Claim Pursuit Of Claim Against Tortfeasor Is Prerequisite To Recovery Of UIM Benefits 4.12 INSURED S RIGHT OF ACTION AGAINST INSURER FOR BREACH OF DUTY TO OFFER UM/UIM COVERAGE AND/ OR COVERAGE WITH HIGHER LIMITS THAN LIMITS OF LIABILITY COVERAGE REFORMATION OF POLICY Insurer Has Duty To Advise Insureds Of Nature And Purpose Of UM/UIM Coverage And To Offer Insureds The Opportunity To Purchase UM/UIM Coverage In An Amount Equal To Bodily Injury Liability Limits, And Insured Has Right Of Action Against Insurer For Breach Of This Duty For Accidents Occurring Before 1995, Rental Car Company Had Statutory Duty Under C.R.S (1) To Offer Lessees Of Its Vehicles The Opportunity To Purchase UM/UIM Coverage RTD, As Holder Of Certificate Of Self-Insurance, Is Not Required By C.R.S (1) To Provide UM/UIM Coverage To Passengers In Its Vehicles Step-Down Endorsement In UM/UIM Coverage Was Unenforceable Because In Including It In The Policy, Insurer Violated C.R.S (2) Insurer And Agent Satisfied Statutory And Common Law Obligations By Offering Insured Opportunity To Purchase UM/UIM Coverage With Limits Of $100,000/$300,000 TOC-14 (5/07)

16 Table of Contents Even Where Insured Purchases Liability Coverage With Minimum Limits, Insurer Has One-Time Duty to Offer Insurer Opportunity to Purchase UM/UIM Coverage With Higher Limits 4.13 COMPLIANCE WITH POLICY NOTICE REQUIREMENTS Policy Provision Requiring Insured To Give Notice Of Hit-And-Run Accident Is Enforceable As Condition Precedent To Coverage Insured s Duty To Give Insurer Notice Of Possible UIM Claim Arises When Insured, With Reasonable Diligence, Can Ascertain That Alleged Tortfeasor Is Underinsured a Alleged delay of 15 months did not bar claim b In UIM cases, insurer bears burden of proving prejudice to deny claim based upon insured s failure to give timely notice 4.14 PUBLIC POLICY ISSUES Policy Provision Allowing Insurer To Reduce UM Benefits By Amount Paid To Insured As Workers Compensation Benefits Is Contrary To Public Policy Other Insurance Clause, Under Which Excess Insurer Is Obligated To Pay UM Benefits Only To The Extent That The Limits Of Liability Exceed Those Of Primary Insurer, Is Not Contrary To Public Policy Policy Provision In Uninsured Motorist Policy Allowing Insurer To Reduce UM Benefits On A Dollar-For-Dollar Basis By Amount Of PIP Benefits Paid Is Contrary To Public Policy Proper Procedure To Avoid Double Recovery Of PIP Benefits Subrogation Clause And Release-Trust Agreement Are Contrary To Public Policy And Cannot Be Enforced, To The Extent That Enforcement Of Such Agreements Impairs Insured s Right To Full Compensation For Loss Caused By Uninsured Motorist Owned But Uninsured Exclusion Applicable To Resident Relative Of Named Insured Does Not Violate Public Policy Insurer s Application Of Household Exclusion To Deny Uninsured Motorist Coverage Does Not Contravene Public Policy Policy Provision Allowing Insurer To Offset Social Security Disability Benefits Received By Insured From Insured s UM/UIM Coverage Is Void As Contrary To Public Policy Under C.R.S , Insurers Must Offer UM/UIM Coverage To Class Of Persons At Least As Extensive As Class Covered Under Liability Provisions Of Policy (5/07) TOC-15

17 Colorado Automobile Accident Litigation and Insurance Handbook Policy Provision Allowing Insurer To Aggregate Policy Limits Of All Available Liability Insurance Policies For Purposes Of Determining Whether Insurer Is Liable For Payment Of UIM Benefits Is Not Contrary To Public Policy Policy Provision Allowing Insurer To Seek A Trial De Novo After An Unfavorable Arbitration Award Is Void And Unenforceable As Contrary To Public Policy Consent-To-Settle Clause In UIM Coverage Does Not Violate Public Policy Exclusion Of UM/UIM Coverage For Injury Arising Out Of Use Of Owned But Uninsured Or Non-Owned Vehicle Furnished Or Available For Regular Use Of Insured Or Family Member Does Not Violate Public Policy In A UM/UIM Policy, An Owned But Uninsured Exclusion Is Void As Contrary To Public Policy Neither Express Terms Of Automobile Insurance Contract Nor Public Policy Considerations Imposed A Duty Upon Insurer To Pay Insured s Attorney Fees In Dispute Over Uninsured Motorist Benefits Auto Insurer Was Not Required To Provide PIP Or UM Coverage To Insured Motorists Injured In An Accident In Mexico Provision In Uninsured Motorist Policy Requiring Independent Corroborating Witness To Support Claim In Case Of Hit-And-Run Phantom Vehicle Is Void As Contrary To Public Policy Where Multiple UM/UIM Policies Exist, Primary Insurer May Be Entitled To Claim Entire Offset 4.15 DETERMINATION OF AMOUNT OF UIM COVERAGE Where More Than One Person Is Injured, Per Accident Limit Of Tortfeasor s Policy Is Used To Determine Whether UIM Coverage Is Available Conflict Between Limit Of Liability Language And Other Insurance Language In UM/UIM Coverage Creates An Ambiguity That Will Be Construed In Favor Of Insured Insurer May Aggregate Liability Payments To Multiple Insureds Injured In A Single Accident In Determining Amount Of Available UIM Benefits Under Per Accident Limit Of Policy Vehicle Is Underinsured If Payments To Persons Other Than An Insured Reduce Liability Coverage Below Limits Of UIM Coverage Other Insurance Clause May Render Policy Ambiguous, Increasing Insurer s Potential Liability For Payment Of UIM Benefits TOC-16 (5/07)

18 Table of Contents Under C.R.S (5), To Determine Liability For UIM Benefits, Insurer May Offset Only Amounts Actually Paid By Tortfeasor s Liability Carrier, Not Amounts Payable Under The Policy Amount Of Available UM/UIM Benefits Is Not Multiplied By Number Of Motorists Who Cause Or Contribute To A Single Accident Insurer May Not Reduce Available UIM Coverage By Amount Of Liability Payments To Persons Other Than An Insured Where Multiple UM/UIM Policies Exist, Insurer May Be Entitled To Entire Offset For Liability Payment To Insured, If Other Policies Make No Claim To The Offset Where Multiple UM/UIM Policies Exist, Primary Insurer May Be Entitled To Claim Entire Offset 4.16 CONFLICT OF LAWS In The Absence Of An Effective Choice Of Law Provision In The Insurance Contract, The Most Significant Relationship Test Applies To Determine Which State s Law Governs 4.17 STATUTE OF LIMITATIONS APPLICABLE TO UM/UIM CLAIMS Two-Year And Three-Year Limitations Periods In Statute Of Limitations For Uninsured Motorist Claims, C.R.S (1)(a), Run Concurrently, Not Consecutively Chapter 5 AUTOMOBILE LIABILITY CLAIMS AND LIABILITY INSURANCE 5.1 INTRODUCTION 5.2 NO-FAULT THRESHOLD REQUIREMENT Commencement Of Action Where Threshold Requirement Not Yet Satisfied Proof Required To Establish Threshold Requirement a Testimony of plaintiff may be sufficient b Burden of proof regarding threshold rests with plaintiff Testimony of plaintiff as to amount of bills incurred may not be sufficient, if plaintiff presents no evidence that medical services were reasonably needed (5/07) TOC-17

19 Colorado Automobile Accident Litigation and Insurance Handbook c Fact that PIP carrier pays expenses does not establish that they were related to accident Whether threshold requirement has been met is usually fact question for jury Proof Of Threshold Does Not Necessarily Entitle Plaintiff To Recover Damages Exemption From Threshold Requirement For Intentional Torts Under C.R.S Threshold Requirement Is Applicable To A Claim For Loss Of Consortium 5.3 NO RIGHT TO RECOVERY OF AMOUNTS PAID OR PAYABLE AS PIP BENEFITS General Rule Precludes Recovery Of PIP Benefits PIP Benefits Improperly Awarded As Damages By Jury Are Subject To Reduction By Court Adoption Of C.R.S Did Not Overturn No-Fault Act s Prohibition Of Recovery Of PIP Benefits In Tort Action 5.4 ISSUES RELATING TO LIABILITY AND DAMAGES IN LITIGATION OF MOTOR VEHICLE ACCIDENT CLAIMS The Seat Belt Defense a Defendant entitled to jury instruction on seat belt defense even if no evidence of relationship between failure to use and injuries b If vehicle is equipped with separate lap and shoulder seat belts, plaintiff must use both to avoid application of the seat belt defense Evidence of failure to wear seat belt may be used to mitigate plaintiff's non-economic damages, but not as a basis for comparative negligence c Mitigation of damages under seat belt defense is limited to damages for pain and suffering, and does not apply to other non-economic damages Parental Immunity Doctrine Not Abrogated By No-Fault Act Negligence And Comparative Negligence a Plaintiff allowed to recover where plaintiff s negligence is less than combined negligence of defendants or combined negligence of defendants and designated non-parties b Presumption of negligence in rear-end collision When directed verdict is appropriate c Pro rata liability statute, C.R.S , requires apportionment of fault between negligent and intentional conduct that combine to cause the same injury TOC-18 (5/07)

20 Table of Contents d Comparative negligence statute does not preclude state from recovering payments made under Colorado Medical Assistance Act e Repair shop has no duty to warn customer of danger of broken seat belt, where customer knows belt is broken and should know of potential hazard f Ordinance requiring animal owners to keep them on premises did not impose strict liability upon owner when horse escaped from property and caused collision with plaintiff s vehicle g In a wrongful death action arising from a motor vehicle accident, plaintiff may recover as long as decedent s negligence is less than the combined negligence of all tortfeasors, including named defendant s and designated non-parties, but if defendant is liable for wrongful death, solatium award is not subject to reduction by percentage of decedent s negligence Workers Compensation Insurer s Subrogation Rights Do Not Extend To Injured Worker s Recovery Of Non-Economic Damages Or Spouse s Recovery For Loss Of Consortium Negligent Entrustment Of Vehicles a Supplying funds to a minor child who has a history of drug and alcohol abuse, so child can purchase a vehicle, may give rise to a claim of negligent entrustment b Person who entrusts vehicle to another, who injures himself when driving while intoxicated, may be liable to injured driver under doctrine of negligent entrustment Statutes that limit liability of commercial vendors of alcohol and social hosts, C.R.S and , do not apply to entrusting a vehicle to an intoxicated person c Parents who co-sign loan to facilitate child s purchase of vehicle are not liable for negligent entrustment because supplying credit is not furnishing a chattel d Seller of vehicle has no duty to determine whether potential buyer has liability insurance The Family Car Doctrine a Family car doctrine does not apply where adult child is living outside parent s household and is self-supporting Adequacy Of Damages a Trial court did not abuse its discretion in refusing to grant new trial to plaintiff in low-impact rear-end collision case, where jury awarded damages for physical impairment, but no damages for non-economic loss or economic loss (5/07) TOC-19

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