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Colby v. Progressive Casualty Insurance Co.12/16/1996
at " complying policy may provide that all benefits set forth in section 10-4-706(1)(b) to (1)(e) and in this section are subject to an aggregate limit of two hundred thousand dollars . . . ." (Emphasis added.) For this phrase to have meaning, rehabilitation benefits must, in certain circumstances, permissibly exceed $50,000. If rehabilitation benefits are limited to $50,000, section 10-4-706(1)(b) to (1)(e), 4A C.R.S. (1987 & 1992 Supp.), provides the following coverage: $50,000 for medical expenses; $50,000 for rehabilitation expenses; $20,800 for lost wages; and $9,125 for essential services for a total aggregate minimum basic coverage of $129,925. However, section 10-4-710(2)(b) permits an insurer to limit "all benefits set forth in section 10-4-706(1)(b) to (1)(e) . . . to an aggregate limit" of $200,000. If the General Assembly had intended unequivocally to limit rehabilitation benefits to $50,000, then it would not have been necessary to include a potential $200,000 "aggregate limit" of section 10-4-706 basic coverage in section 10-4-710(2)(b) if already limited to $129,925.
Also, section 10-4-710 does not otherwise refer to rehabilitation benefits. Although under section 10-4-710 an insurer is required to offer unlimited medical and income coverage, it has no duty to offer optional, extra rehabilitation benefits. Under section 10-4-710, an insurer need not offer additional rehabilitation coverage because section 10-4-706(1)(c)(II) already provides for the possibility of rehabilitation benefits exceeding $50,000.
II
A
The majority construes section 10-4-706(1)(c)(II) as a required minimum coverage for rehabilitation benefits. In pertinent part, section 10-4-706(1)(c)(II) stated, "an insurer . . . shall be presumed to have complied with the provision for rehabilitation when the value of rehabilitation services or treatment provided . . . shall have reached fifty thousand dollars within five years after an accident involving a motor vehicle." ยง 10-4-706(1)(c)(II), 4A C.R.S. (1987). The majority confuses the meaning of this presumption of compliance by reading section 10-4-710, 4A C.R.S. (1992 Supp.), a succeeding provision of the statute which provides for optional additional coverage, as providing grounds for rebutting the presumption. Maj. op. at 13. Specifically, the majority asserts that construing the word "presume" as establishing a monetary cap "comports with the provisions of section 10-4-710 that contemplate a scenario in which more extensive coverage may be offered and purchased." Id. There is, however, no statutory or historical authority for such a construction of the statute.
Furthermore, by its commonly accepted legal meaning, the word "presume" implies that the decision is not final and a person in disagreement may make a valid argument against recognition of the presumed fact. In my view, if the General Assembly intended to set a monetary cap, it would have used the proper language to establish such a maximum. Instead, the General Assembly decided to use the word "presume" which implies that a person challenging the insurer's compliance may rebut the presumption that the insurer has complied with the statutory requirements by providing fifty thousand dollars in rehabilitation benefits. To presume means, inter alia, "to suppose to be true without proof." Webster's Ninth New Collegiate Dictionary 932 (1985). Thus, there may
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