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Allstate Insurance Co. v. Avis Rent-A-Car System Inc11/10/1997
nsurance and legal liability insurance, it treated these coverages separately under the act. In Travelers Indemnity Co. v. Barnes, 191 Colo. 278, 552 P.2d 300 (1976), we ruled that CAARA section 10-4-707(4) required the operator's PIP coverage always to be primary regardless of the existence of any other coverage.
The statutory language which is in question here is the extent of 'all coverages' as it relates to primary coverage by the operator's policy. . . . The reasonable construction of section [10-4-707(4)] is that the phrase "all coverages" is limited to those coverages providing PIP benefits under subsections [10-4-706(1)(b) to 10-4-706(1)(e)]. Subsection (4) cannot be extended by implication to every coverage that may be included in the policies. The contrary construction contained in the offending regulation does not conform to the stated legislative purpose of the Act, is not consistent with all other portions of the Act, and changes long-standing insurance practices.
Id. at 283-84, 552 P.2d at 304. The legislature has not chosen explicitly or by clear implication to change this construction of CAARA in the twenty years since we announced Barnes.
Thus, when an accident involves a driver who is not the owner of the vehicle nor an employee of the owner, the operator's policy is primary with regard to PIP benefits only. Our analysis in Barnes was supported by the legislative history of the act, which expressly indicated that the legislature intended that first-party PIP coverage be primary but contained no corresponding requirement for liability coverage. See Committee Report at 7 ("First Party Coverages . . . if a person who has a complying policy is operating a vehicle other than his own or his employer's, the operator's policy is primary.").
Contrary to Avis' successful argument in the district court, Colorado law does not require Allstate's liability coverage for non-owned automobiles to respond as primary. The court of appeals correctly held that nothing in the plain language of section 10-4-707, as amended in 1992, contains a provision overruling Barnes. The amendments to subsection (1) and subsection (5) make no reference to subsection (4) and contain no identifiable language altering Barnes. See ch. 20, sec. 3, (s) 10-4-707, 1992 Colo. Sess. Laws, 1781, 1784. The district court determined that the 1992 amendments may have overruled Barnes inadvertently. We will not infer that the General Assembly intended to abrogate our decisions unless it has done so expressly or by clear implication. See Vaughan v. McMinn, No. 95SC497, slip op. at 15 (Colo. Sept. 22, 1997).
We agree with Allstate that Avis must comply with CAARA by carrying minimum liability coverage for its rental cars. Under section 10-4-705, 3 C.R.S. (1997), every owner of a car in Colorado, including rental car companies, must carry minimum insurance coverage under the Act:
Coverage Compulsory. (1) Every owner of a motor vehicle who operates the motor vehicle on the public highways of this state or who knowingly permits the operation of the motor vehicle on the public highways of this state shall have in full force and effect a complying policy under the terms of this part 7 covering the said motor vehicle . . . .
Section 10-4-706(1)(a), 3 C.R.S.(1997), sets forth statutory minimums for liability coverage, including property coverage for "damage arising out of the use of the motor vehicle to a limit, exclusive of interest and costs, of fifteen thousand dollars in any one accident." In conformity with the act, Avis must carry at least $15,000 in property damage liability insurance for the use of each of its rental cars. Allstate insists that its excess claus
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