Acree v. Mid-Century Insurance5/28/1998
by a pharmacist, purchase of a hot tub is not required under Section 10-4-706(1)(c)(II)(A).
The trial court adopted insurer's argument and entered summary judgment in its favor.
Plaintiff argues that the trial court construed Section 10-4-706(1)(c)(II)(A) too restrictively and that it erred in determining that hot tubs should be excluded from coverage as a matter of law. Instead, she asserts, she is entitled to present evidence that the hot tub is a "system, treatment, prescription, . . . or practice for the prevention . . . cure, relief, palliation . . . or correction of any human . . . ailment . . . injury , or unhealthy or abnormal physical . . . condition . . . ." We agree.
When reviewing a summary judgment, we are required to determine whether there is a clear showing that no genuine issues of material fact exist and whether the moving party is entitled to judgment as a matter of law. Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo. 1988). In making this determination, all doubts as to the existence of a triable factual issue must be resolved against the moving party, Travelers Insurance Co. v. Savio, 706 P.2d 1258 (Colo. 1985), and the opposing party is given the benefit of all favorable inferences that may be drawn from the facts. Kaiser Foundation Health Plan of Colorado v. Sharp, 741 P.2d 714 (Colo. 1987).
The basic purpose of the No-fault Act, as declared by the General Assembly, is "to avoid inadequate compensation to victims of automobile accidents . . . ." Section 10-4-702, C.R.S. 1997. Thus, the legislative intent and policy underlying this Act seek to maximize, not minimize, insurance coverage and to ensure that persons injured in automobile accidents are fully compensated for their injuries. Therefore, we must construe the Act liberally to further its remedial and beneficent purposes. Allstate Insurance Co. v. Smith, 902 P.2d 1386 (Colo. 1995).
Under the No-fault Act, insurers are required to provide PIP coverage up to a limit of $50,000 for all reasonable and necessary medical expenses, and up to $50,000 for all reasonable and necessary rehabilitation procedures and treatments. Section 10-4-706(1), C.R.S. 1997.
To deny a claimant, such as plaintiff, relief from pain would be violative of the clear purpose of Section 10-4-702 to avoid inadequate compensation to victims of automobile accidents. In our view, even if a hot tub may not be a prescription item, it may be a system, treatment, or practice for the prevention, cure, relief, palliation, or correction of pain. Thus, to deny claimant coverage here as a matter of law would be tantamount to a determination that pain is not a human ailment, injury , or unhealthy or abnormal physical condition.
Thus, we agree with plaintiff that the determination whether insurer should be required to purchase a hot tub to alleviate her pain is a question of fact to be resolved by consideration of all the facts and circumstances in light of Section 10-4-706(1)(c)(II)(C), C.R.S. 1997 ("A procedure, treatment, or training shall contribute substantially to rehabilitation.") and Section 10-4-706(1)(c)(II)(D), C.R.S. 1997 ("The cost of a procedure, treatment, or training shall be reasonable in relation to its probable rehabilitative effects.").
The summary judgment is reversed and the cause is remanded for further proceedings.
JUDGE PLANK and JUDGE TAUBMAN concur.
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