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Claire v. State Farm Mutual Automobile Insurance Co.5/28/1998
Appeal from the District Court of the City and County of Denver
Honorable Connie L. Peterson, Judge
No. 96CV3948
JUDGMENT AFFIRMED
Division I
In this declaratory judgment action, plaintiff, Elly Claire, appeals the summary judgment entered in favor of defendant, State Farm Mutual Automobile Insurance Company, determining that she was not entitled to uninsured motorist benefits. We affirm.
The facts of this case are undisputed. On February 12, 1991, plaintiff was injured when her automobile was rear-ended by a vehicle driven by Mark Mahna. The parties exchanged information at the scene and plaintiff filed, with the local police department, a counter report containing Mahna's name, physical description, address, telephone number, driver's license number, date of birth, and age, together with information concerning the vehicle he was driving and its insurance coverage.
Mahna's vehicle was insured by USAA, and, since he was driving with the permission of the insured, USAA raised no issue as to coverage.
In the fall of 1991, plaintiff retained counsel to represent her regarding her personal injury claim. In December 1992, Mahna gave a recorded telephone statement concerning the accident to one of USAA's claims adjusters.
From 1991 to 1993, plaintiff's counsel and the attorney USAA had retained to represent Mahna conducted negotiations to resolve plaintiff's claim, including participation in a settlement conference paid for by USAA. When these negotiations proved to be unsuccessful, plaintiff commenced a personal injury action against Mahna in September 1993.
Beginning in October 1993, plaintiff attempted to locate Mahna to effect service of process on him. Over the next two-and-one-half years, plaintiff employed the services of five private investigators, none of whom was able to locate Mahna.
Plaintiff then requested uninsured motorist benefits from State Farm, her automobile insurance carrier. Because it did not agree that Mahna was uninsured, State Farm denied coverage and refused to arbitrate any damages issues.
Accordingly, plaintiff filed this declaratory judgment action, seeking both a determination that she was entitled to the benefits of her uninsured motorist coverage and requesting that the court order State Farm to arbitrate her uninsured motorist claim pursuant to her policy.
The parties agreed that no genuine issues of material fact existed and filed cross-motions for summary judgment on the issues of law. Concluding that Mahna was not an uninsured motorist under either the terms of State Farm's policy or Section 10-4-609, C.R.S. 1997, the trial court entered summary judgment in favor of State Farm.
I.
Plaintiff contends the trial court erred in determining that Mahna was not an "uninsured motorist." We perceive no error.
An appellate court's review of a summary judgment is de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo. 1995). Summary judgment is appropriate if the admitted facts demonstrate that a party cannot prevail. C.R.C.P. 56(b); Kuehn v. Kuehn, 642 P.2d 524 (Colo. App. 1981).
Section 10-4-609(1)(a), C.R.S. 1997, provides in pertinent part:
No automobile liability or motor vehicle liability policy . . . shall be delivered . . . with respect to any motor vehicle licensed for highway use in this state unless coverage is provided therein . . . for the protection of persons insured thereunder who are legally entitled to recover damages from owners and operators of uninsured motor vehicles because of
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