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Lamb v. Geico General Insurance Co.11/7/2002
P.2d 300 (1976)(notwithstanding use of phrase "all coverages" in § 10-4-707(4), provision must be read as limited to PIP coverage to be consistent with other portions of No-Fault Act).
We further conclude that DeHerrera does not warrant a contrary interpretation. In that case, the supreme court considered a claim for PIP coverage for injuries suffered by the son of the named insured when he was riding his off-road motorcycle and was involved in an accident with a pickup truck. The insurance company had denied coverage based on a policy provision excluding coverage for persons occupying a vehicle that was not a car. The supreme court held that the language in § 10-4- 707(1)(a) mandating coverage for a person injured "in an accident involving any motor vehicle" precluded the insurance carrier from excluding coverage for the insured's son. DeHerrera, supra, 30 P.3d at 172.
The court noted that its construction of § 10-4-707(1)(a) was "subject to statutory exclusions," DeHerrera, supra, 30 P.3d at 172, and stated at the conclusion of its discussion of the PIP coverage issue: "The parties have not argued that any statutory exclusions apply. Hence, we hold that the statute unambiguously requires that Sentry provide PIP coverage in this case." DeHerrera, supra, 30 P.3d at 173.
The DeHerrera court also discussed Thompson, observing that, although the facts in that case were similar, the division's reason for denying PIP coverage was inapplicable because the plaintiff in Thompson "fit a statutory exception to mandatory PIP coverage, an exception which Sentry has not argued applies in this case." DeHerrera, supra, 30 P.3d at 172. The court added in a footnote:
We express no opinion as to whether the exclusion used to deny PIP coverage in Thompson applies to DeHerrera in this case because Sentry has not argued the applicability of the exclusion and in fact has admitted in the trial court that the exclusion does not apply. The statutory exclusion to mandatory PIP coverage applies to an insured whose injuries result from "the use or operation of the [insured's] own motor vehicle not actually covered under the terms of [the No Fault Act]." § 10-4-707(1)(b) . . . . This section of the No Fault Act defines a motor vehicle as a vehicle "required to be licensed for operation on the public highways of this state or any other jurisdiction." § 10-4-707(2). . . . Because Sentry admitted that an off-road motorcycle is not a motor vehicle within the applicable definition, it has admitted that the statutory exclusion from mandatory PIP coverage does not apply in this case. DeHerrera, supra, 30 P.3d at 172 n.7 (emphasis added).
In another footnote, the supreme court acknowledged the analogous exclusion in § 10-4-707(1)(b) and again observed: "Sentry has not argued that this exception applies in this case, and thus we do not address this exclusion in this opinion." DeHerrera, supra, 30 P.3d at 172 n.6.
In light of the care taken by the supreme court in DeHerrera to limit its holding to the situation before it, which involved an off-road motorcycle not within the statutory exceptions in § 10-4-707(1)(a) & (b), we conclude that the trial court erred in reading DeHerrera to require PIP coverage for the plaintiff in this case.
Accordingly, because motorcycles fall within the statutory exceptions to mandatory PIP coverage, the provision in plaintiff's automobile insurance policy excluding PIP coverage for injuries sustained when she was operating her own noninsured motor vehicle is enforceable as written. Under that policy exclusion, there was no PIP coverage for plaintiff, and defendant did not act in bad faith or breach its insurance contract with her
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