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Carlisle v. Farmers Insurance Exchange3/20/1997
In this declaratory judgment action, plaintiff, Anne Carlisle, appeals the summary judgment entered in favor of the defendant, Farmers Insurance Exchange (Farmers). We affirm.
In August of 1993, Carlisle was a passenger in a car that was involved in a collision with a second vehicle. It is undisputed that both the driver of the car in which Carlisle was a passenger and the driver of the second vehicle were negligent in causing the accident.
The driver of the car in which Carlisle was a passenger (first driver) was insured for liability with policy limits of $25,000 per person, $50,000 per vehicle. The driver of the second car (second driver) was insured for liability with policy limits of $50,000 per person, $100,000 per vehicle. At the time, Carlisle was insured under her father's policy for uninsured/underinsured motorist protection (UM/UIM) with policy limits of $50,000.
Carlisle collected the policy limits of both negligent drivers' policies, for a total recovery of $75,000. She then initiated this declaratory judgment against Farmers, claiming that because the first driver had policy limits less than her UM/UIM coverage, he was underinsured. Carlisle argued that she is entitled to collect $25,000 of UM/UIM coverage, the difference between the limits of her father's UM/UIM policy and the first driver's liability policy. Farmers filed a motion for summary judgment, arguing in part that because Carlisle had recovered from the tortfeasors an amount greater than her father's UM/UIM policy, she is precluded from recovery under the policy. The trial court granted the motion for summary judgment, and Carlisle brought this appeal.
I.
We hold that the policy language unambiguously allows Farmers to aggregate the liability damages received by Carlisle.
The UIM/UM policy in question here provides the following:
Limits of Liability
The limits of liability shown on the Declarations for Uninsured Motorist apply to uninsured motorist coverage, including underinsured motorist coverage as defined Additional Definition 3b, subject to the following:
4. The maximum we will pay an insured person for damages caused by an underinsured motorist as defined in Additional Definition 3b shall be no more than the extent the uninsured motorist bodily injury limit exceeds the sum of the amounts of all liability bonds or insurance policies available to all parties held to be liable for the accident. We will pay under this coverage only after the limits of all such liability bonds or policies have been exhausted by the payment of settlements or judgments.
An insurance policy should be enforced as written, giving words their plain meaning according to common usage and avoiding strained constructions of the language used. Allstate Insurance Co. v. Starke, 797 P.2d 14 (Colo. 1990). A provision of a policy is ambiguous and must be interpreted by the court when, upon being evaluated within the policy as a whole, Union Insurance Co. v. Houtz, 883 P.2d 1057 (Colo. 1994), it is reasonably susceptible to more than one meaning. Northern Insurance Co. v. Ekstrom, 784 P.2d 320 (Colo. 1989).
First, we conclude that paragraph 4 quoted above unambiguously allows Farmers to offset "the sum of the amounts of all liability bonds or insurance policies available to all parties held to be liable for the accident."
Second, we reject Carlisle's argument that an ambiguity exists between the liability section of the policy concerning "other insurance" and the above quoted provisions. The liability section of the policy was not made part of the record and is, therefore, not available for review. In fact,
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