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Loza v. State Farm Mutual Automobile Insurance Co.11/13/1997
s the outcome of the case, and all doubts must be resolved against the moving party. Moffat County State Bank v. Told, 800 P.2d 1320 (Colo. 1990). And, to defeat a summary judgment motion, the opposing party must submit evidence showing that a genuine issue for trial exists. C.R.C.P. 56(e).
Our review of a grant of summary judgment is de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, supra.
At the time pertinent here, the No-fault Act required the insurer to pay:
Compensation without regard to fault, up to a limit of fifty thousand dollars per person for any one accident, for payment of all reasonable and necessary expenses for medical . . . dental . . . services . . . performed within five years after the accident for bodily injury arising out of the use or operation of a motor vehicle . . . .
Section 10-4-706(1)(b), C.R.S. 1997.
The ultimate legal issue is whether State Farm can apportion no-fault benefits between an injury arising out of the use or operation of a motor vehicle and a preDisposition to suffer the same injury from other causes. We conclude that no such apportionment is appropriate under the statute.
Insured testified in her deposition that she had not experienced any symptoms of TMD before the accident. State Farm's claim representative testified that she believed insured in that regard. The essence of the IME dentist's apportionment was that, while an individual with bruxism will not always develop TMD, there was only a 30% chance that a bruxism-free person would develop TMD as a result of this motor vehicle accident.
The purpose of the No-fault Act is to maximize, not minimize, insurance coverages, and to ensure that persons injured in automobile accidents are fully compensated. The No-fault Act is to be construed and applied to further its remedial and beneficent purposes. Allstate Insurance Co. v. Smith, 902 P.2d 1386 (Colo. 1995).
The phrase "arising out of the use or operation of a motor vehicle" as used in the No-fault Act requires a causal connection between the use of the motor vehicle and the injury . Truck Insurance Exchange v. Home Insurance Co., 841 P.2d 354 (Colo. App. 1992). The causal connection described as "arising out of" is broader and more liberal than proximate cause as used in traditional tort law. Kohl v. Union Insurance Co., 731 P.2d 134 (Colo. 1986)(on account of the use); Azar v. Employers Casualty Co., 178 Colo. 58, 495 P.2d 554, 555 (1972)("originated from," "grew out of," or "flowed from"); State Farm Mutual Automobile Insurance Co. v. McMillan, 900 P.2d 1243 (Colo. App. 1994) (uninsured motorist coverage).
We are not aware of any case dealing with apportionment in the no-fault context between an injury arising out of the operation of the motor vehicle and a related pre-existing nonsymptomatic condition.
State Farm relies on Rodgers v. Progressive Specialty Insurance Co., 499 N.W.2d 61 (Minn. App. 1993). Rodgers, however, is not particularly helpful because there the insured had been involved in two accidents, and had separate or identifiable injuries from each accident for which she was receiving treatment. The court held that the no-fault coverage was accident specific and the carrier need pay no-fault benefits only for injuries sustained in the second accident. While we may agree with the basic rationale of Rodgers, that case dealt with an identified previous injury sustained by the insured which had been treated and, therefore, could be apportioned.
We note the similarity in language in the workers' compensation statute, which provides that benefits are payable for injuries "arising out of a
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