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Grahn v. Truck Insurance Exchange9/26/1991
surer also relies on Bondi v. Liberty Mutual Insurance Co., 757 P.2d 1101 (Colo. App. 1988) in arguing that only an actual loss of earnings, and not a loss of earning capacity, is compensable under the No Fault Act. In Bondi, this court held that a plaintiff, who was not employed at the time of the accident and who had no offers of future employment, could not claim benefits for lost wages based on her earning capacity alone. However, here, the plaintiff was employed at the time of the accident. She is seeking wage loss benefits for work done for the custom farming operation which she would have performed if she had not been injured. Thus, the issue here is not whether a loss existed, but how to determine the amount of the loss.
In Nemer v. Anderson, 151 Colo. 411, 378 P.2d 841 (1963), a case in which the plaintiff did not receive a salary, the supreme court recognized the use of replacement labor costs as a gauge for calculating "loss of earnings" under the probate code. The insurer contends that the phrase "loss of gross income" in the No Fault Act is narrower than the phrase "loss of earnings" in the probate code because the latter includes diminished earning capacity. Here we are dealing with loss of income and not diminished earning capacity; thus, we find no reason to distinguish the two phrases.
Moreover, the National Conference of Commissioners' interpretation of a similar provision under the Uniform Motor Vehicle Accident Reparations Act, 14 Uniform Laws Annot. ยง 1 (1990), defines work loss as "not only lost wages, but lost profit which is attributable to personal effort in self-employment (as distinguished from profit attributable to investment) or the cost of hiring a substitute to perform self-employment services." (emphasis added) While this interpretation is not conclusive, it should be given deference by the courts. Bondi v. Liberty Mutual Insurance Co., supra.
Accordingly, we hold that the plaintiff's evidence of payment of expenses for a replacement worker may constitute "reasonable proof" of loss of gross income under the statute, and thus, disposition of the claim by summary judgment was error.
Summary judgment on the bad faith breach of insurance contract claim was entered "because plaintiff had not presented reasonable proof as to the loss of income benefits." The summary judgment on that claim as well as the treble damage, attorney fee and interest claim, are also reversed.
The judgment is reversed, and the cause is remanded for further proceedings consistent with the views expressed herein.
Disposition
JUDGMENT REVERSED AND CAUSE REMANDED WITH DIRECTIONS
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