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Aetna Casualty & Surety Co. v. McMichael10/30/1995
EN BANC
We granted certiorari to review the Colorado Court of Appeals' decision in McMichael v. Aetna Insurance Co., 878 P.2d 61 (Colo. App. 1994), which reversed the trial court's grant of summary judgment for the defendant, Aetna Casualty & Surety Company (Aetna), and against the plaintiff, Phillip McMichael, in a declaratory judgment action brought to establish the scope of coverage under an automobile insurance policy. McMichael sought uninsured/underinsured motorist ("UM/UIM") benefits pursuant to a Business Auto Coverage Policy that Aetna issued to McMichael's employer. McMichael pursued these benefits for injuries he incurred while sawing concrete joints in a highway in front of his employer's vehicle. The court of appeals held that the public policy of section 10-4-609, 4A C.R.S. (1994), required insurers to provide UM/UIM coverage to a class of individuals as broad as the class provided with liability coverage under the terms of the automobile insurance policy. 878 P.2d at 63. Because the Aetna policy provided permissive users of covered vehicles with liability coverage, and permission was undisputed, the court of appeals concluded that McMichael would be entitled to UM/UIM benefits if he was using a covered vehicle at the time of the accident. Id. at 64. The court of appeals further determined that McMichael was using a covered vehicle as a barricade and a warning device and, thus, was entitled to compensation for his injuries under the policy. Id. We now interpret section 10-4-609(1) to require insurers to offer UM/UIM coverage to a class of individuals as broad as the class covered under the liability provisions of an automobile insurance policy. In addition, we agree with the court of appeals that the salient facts are undisputed and that McMichael was using a covered vehicle at the time of the accident. Therefore, we affirm the court of appeals' reversal of the trial court's grant of summary judgment for Aetna and the direction on remand that the trial court enter judgment declaring McMichael to be within the scope of the UM/UIM coverage of the policy at issue.
I.
The trial court resolved this case on Aetna's motion for summary judgment. The following facts, therefore, are taken from the parties' submissions to the trial court directed to that motion.
McMichael was employed by Irving F. Jensen Company, Inc. (Jensen) as an assistant superintendent of construction. On February 1, 1990, Jensen assigned McMichael to saw concrete joints in the median of a divided highway. McMichael, along with another employee, drove a company-owned truck to the median and parked. The truck was specially equipped with an overhead beacon and emergency flashers. After McMichael parked the truck, he left it running, turned on the overhead beacon and emergency flashers, and began his work. McMichael was in the process of sawing joints in the concrete some distance in front of the truck when a car approaching from the opposite direction swerved into the median and struck him. The record suggests that the windows of the car were frosted over, making it difficult for the driver to see. As a result of this collision, McMichael suffered injury to his neck.
The motorist who struck McMichael did not maintain enough automobile insurance to compensate McMichael for his injuries. To obtain full compensation, McMichael filed an underinsured motorist claim with Aetna, the insurer for Jensen's vehicles. Jensen carried a Business Auto Coverage Policy through Aetna (the Aetna policy). The Aetna policy covered more than eighty of Jensen's company-owned vehicles. It provided UM/UIM coverage to t
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