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Bowen v. Farmers Insurance Exchange5/2/1996
JUDGE MARQUEZ concurs.
JUDGE BRIGGS Dissents.
Disposition
JUDGMENT REVERSED AND CAUSE REMANDED WITH DIRECTIONS
JUDGE BRIGGS Dissenting.
In my view, the trial court's ruling should be affirmed. I therefore respectfully Dissent.
As an initial matter, the record on appeal is insufficient to warrant reversal of the trial court's ruling.
An insurance policy is a contract and should be construed in accordance with general principles of contractual interpretation. Wota v. Blue Cross & Blue Shield, 831 P.2d 1307 (Colo. 1992). Thus, like any other contract, the provisions of an insurance contract should not be read in isolation but rather as a whole. See Worsham Construction Co. v. Reliance Insurance Co., 687 P.2d 988 (Colo. App. 1984).
Plaintiff, however, has not included the complete policy in the record on appeal, making it impossible to construe the contract as a whole. Accordingly, the trial court's ruling should be presumed correct. See Schuster v. Zwicker, 659 P.2d 687 (Colo. 1983).
If the merits of plaintiff's claim are to be addressed based on the record before us, I would reach the same result as the trial court. Although not addressed by the parties, I reach this result because of what I believe to be the proper interplay between § 13-21-101, C.R.S. (1987 Repl. Vol. 6A), which provides for an award of interest as a part of damages from the date a personal injury action accrues, and § 5-12-102(1), C.R.S. (1992 Repl. Vol. 2), which provides for a judgment creditor to receive an award of interest from the date funds are "wrongfully withheld."
The point at which any sums may be considered to be "wrongfully withheld" by the insurer, resulting in interest accruing under § 5-12-102(1), depends in the first instance on the language of the agreement. See Allstate Insurance Co. v. Starke, 797 P.2d 14 (Colo. 1990). The record before us includes a policy provision that states as follows:
We will pay all sums which an insured person is legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injuries sustained by an injured person. . . .
Determination as to whether an insured person is legally entitled to recover damages or the amount of the damages shall be made by agreement between the insured person and us.
If no agreement is reached, the decision will be made by arbitration.
Thus, under the express terms of the insurance contract, the insured is not "legally entitled" to any amounts unless and until an agreement has been reached or an arbitration award rendered. No amount can be "wrongfully withheld" under this provision until the insured is so legally entitled.
This policy provision is similar to an indemnity provision in that any amount due from the insurer remains inchoate until it is determined whether and to what extent the insured is legally entitled to recovery from the insurer. Only then can the insured be said to have a claim for relief. See Duncan v. Schuster- Graham Homes, Inc., 194 Colo. 441, 578 P.2d 637 (1978).
This is not to say that the insurer may thereby avoid any liability for interest before the date of agreement or arbitration award. The policy here expressly provides that the insured may recover "all sums which an insured person is legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle." Those
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