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AVIS Rent-A-Car System Inc. v. Allstate Insurance Co.6/27/1996
In this action for declaratory judgment, defendant, Allstate Insurance Company (Allstate), appeals the order of the trial court denying its motion for summary judgment and granting that of plaintiff, Avis Rent-A-Car System, Inc. (Avis). We reverse and remand the cause for further proceedings.
Allstate issued an automobile insurance policy to an insured that included liability coverage while using a non-owned auto with the permission of that auto's owner. The insured rented a car from Avis and was involved in an accident with another vehicle, which sustained substantial damage.
Because of a dispute between Allstate and Avis as to which was the primary insurer for the insured's liability, Avis filed this action. Both parties filed motions for summary judgment.
The trial court determined that, as a result of 1992 amendments to § 10-4-707, C.R.S. (1994 Repl. Vol. 4A), the liability coverage of Allstate and not Avis was primary. The court likewise rejected Allstate's contention that the clause in the Avis policy making its liability coverage excess was in violation of statutory requirements for minimum coverage, and refused to give effect to an excess clause in Allstate's policy because of its determination that Allstate's coverage was primary.
I.
Allstate contends the trial court erred when it determined that the result of the 1992 statutory amendments was to make the liability insurance of an insured driving a non-owned vehicle primary over the liability insurance of the vehicle's owner. We agree.
Before the amendments enacted in 1992, the pertinent statutory sections provided as follows:
(1) The coverages described in section 10-4-706(1)(b) to (1)(e) shall be applicable to:
(a) Accidental bodily injury sustained by the named insured when injured in an accident involving any motor vehicle, regardless of whether the accident occurs in this state or in any other jurisdiction, except where the injury is the result of the use or operation of the named insured's own motor vehicle not actually covered under the terms of this part 7;
(b) Accidental bodily injury sustained by a relative of the named insured under the circumstances described in paragraph (a) of this subsection (1), if the relative at the time of the accident is a resident in the household of the named insured (whether or not temporarily residing elsewhere), except where the relative is injured as a result of the use or operation of his own motor vehicle not actually covered under the terms of this part 7;
(c) Accidental bodily injury arising out of accidents occurring within this state sustained by any other person while occupying the described motor vehicle with the consent of the insured or while a pedestrian if injured in an accident involving the described motor vehicle. Section 10-4-707(1), C.R.S. (by recodification after enactment as Colo. Sess. Laws 1973, ch. 94, § 13-25-7(1)).
(4) When an accident involves the operation of a motor vehicle by a person who is neither the owner of the motor vehicle involved in the accident nor an employee of the owner, and the operator of the motor vehicle is an insured under a complying policy other than the complying policy insuring the motor vehicle involved in the accident, primary coverage as to all coverages provided in the policy under which the operator is an insured shall be afforded by the policy insuring the said operator . . . and any policy under which the owner is an insured shall afford excess coverage. . . . Colo. Sess. Laws 1979, ch. 74, § 10-4-707(4).
(5) W
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