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Titan Indemnity Co. v. School District No. 1 in the City and County of Denver12/1/2005
ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS
Vogt and Román, JJ., concur
In this action for reimbursement of personal injury protection (PIP) benefits under the former Auto Accident Reparations Act, § 10-4-701, et seq. (repealed July 1, 2003) (No-Fault Act), plaintiff, Titan Indemnity Company, appeals from the trial court's order dismissing its complaint against defendant, Denver Public School District No. 1 (district). We reverse and remand.
A disabled district school bus, being pushed by a tow truck owned by the district and operated by a district employee, hit a passenger car insured by Titan, injuring the occupants. Titan paid PIP benefits to the occupants of the passenger car and then brought this subrogation action against the district. The district moved to dismiss the subrogation complaint, and the trial court granted the motion. This appeal followed.
I.
We review motions to dismiss de novo, accepting all matters of material fact in the complaint as true and viewing the allegations in the light most favorable to the plaintiff. Town of Alma v. AZCO Constr., Inc., 10 P.3d 1256 (Colo. 2000). A motion to dismiss is properly granted when the plaintiff's factual allegations cannot support a claim as a matter of law. BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66 (Colo. 2004); Rosenthal v. Dean Witter Reynolds, Inc., 908 P.2d 1095 (Colo. 1995).
II.
Titan contends that the No-Fault Act allows subrogation claims against the owners of public school buses and that the trial court erred in concluding otherwise. We disagree.
Generally, PIP benefits are not recoverable by subrogation against a tortfeasor. See § 10-4-713(1) (repealed July 1, 2003); Reg'l Transp. Dist. v. Aurora Pub. Schs., 45 P.3d 781 (Colo. App. 2001). However, § 10-4-713(2)(a) (repealed July 1, 2003), under limited circumstances, allows the insurer of certain vehicles to file a subrogation claim against the operator of a non-private passenger vehicle for PIP benefits paid. Reg'l Transp. Dist. v. Aurora Pub. Schs., supra.
In 1991, § 10-4-713(2)(a) was amended to add the following emphasized language:
here a motor vehicle accident involves a private passenger motor vehicle, a public school vehicle designed to transport seven or more passengers, and a non-private passenger motor vehicle, the insurer of the private passenger motor vehicle or the insurer of the vehicle designed to transport seven or more passengers shall have a direct cause of action for all benefits actually paid by such insurer under section 10-4-706(1)(b) to (1)(c) or alternatively, as applicable, section 10-4-706(2) or (3) against the owner, user, or operator of the non-private passenger motor vehicle or against any person or organization legally responsible for the acts or omissions of such owner, user, or operator.
Colo. Sess. Laws 1991, ch. 203, § 10-4-713(2)(a) at 1190; see also Reg'l Transp. Dist. v. Aurora Pub. Schs., supra.
Here, the trial court determined that a public school bus is not included in the definition of "non-private passenger motor vehicle." The court reasoned that a public school bus was set out by the legislature as a separate category of vehicle that is entitled to subrogate claims against owners of non-private passenger vehicles, and to include a school bus in the non-private vehicle category would negate the purpose of this distinction. The court further held that "non-private passenger motor vehicle" refers to commercial vehicles, or "motor vehicles primarily designed to perform duties other than to transport private passengers."
Titan contends that, to the contrary, the pl
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