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Shepherd v. Fregozo6/13/2005
f injury and thus excludes the motorcyclist from coverage in this case.
The UM/UIM statute contains no provisions excluding protection for an insured based on the kind of vehicle an insured occupies at the time of injury. Rather, it simply states that UM/UIM coverage, if not waived by the named insured, must protect "persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles." § 10-4-609(1). This phrase, " `persons insured thereunder' means that insurers must provide UM/UIM coverage for the protection of persons insured under the liability policy that the insurer is issuing. Aetna Cas. & Sur. Co., 906 P.2d at 97 (emphasis added). Thus, the statute provides coverage for persons; it does not place geographical limits on coverage and does not purport to tie protection against uninsured motorists to occupancy in any kind of vehicle.
This construction of the UM/UIM statute is consistent with the effect of UM/UIM coverage limits to act as a replacement for the liability policy limits of an uninsured or underinsured motorist who is at fault in a motor vehicle accident. If a motorist insures a vehicle for liability coverage, his policy affords protection to all members of the public injured by negligent conduct "arising out of the use of the motor vehicle," irrespective of whether the injured person was a pedestrian, a bicyclist, a motorcyclist, or an occupant of a car. § 10-4-706(1)(a); see also § 42-7-413(1)(c); Kohl v. Union Ins. Co., 731 P.2d 134, 135 (Colo.1986) (liability coverage applies whenever the injury is causally related to a conceivable use of the insured vehicle); Mullis v. State Farm Mut. Auto. Ins. Co., 252 So.2d 229, 236 (Fla.1971) ("If an auto liability policy insured negligently hits another with his insured automobile, it is immaterial whether such other is a pedestrian or occupies any particular vehicle; the insured's carrier is liable.")
DeHerrera v. Sentry Ins. Co., 30 P.3d 167, 174-75 (Colo.2001).
While DeHerrera v. Sentry Ins. Co. by dicta specifically disapproves Williams-Diehl v. State Farm Fire & Casualty Co., it does not mention Cruz v. Farmers Ins. Exchange, 12 P.3d 307 (Colo.App.2000). Cruz was decided by the Colorado Court of Appeals on March 16, 2000, with rehearing denied on June 1, 2000, and certiorari denied by the Supreme Court of Colorado on November 14, 2000.
Cruz v. Farmers Ins. Exchange, 12 P.3d 307 (Colo.App. 2000) involved an on-duty policeman who sustained injuries in an accident while driving his regularly assigned police vehicle. He filed a claim under the uninsured motorist provisions of his wife's policy of insurance with Farmers Exchange. The trial court granted summary judgment to the insurer based on the "regular use" exclusion. The Colorado Court of Appeals affirmed noting that under the Colorado statute, uninsured motorist coverage was not mandatory. Said the Court:
Plaintiff next contends that, assuming the "regular use" exclusion applies to him, it nevertheless violates the public policy behind Colorado's uninsured motorist statute, § 10-4-609, C.R.S.1999.
An insurance policy may be void as against public policy if it dilutes, conditions, or limits statutorily mandated coverage. Terranova v. State Farm Mutual Automobile Insurance Co., 800 P.2d 58 (Colo.1990). However, a policy exclusion is not void simply because it narrows the circumstances under which coverage applies. Farmers Insurance Exchange v. Chacon, 939 P.2d 517 (Colo.App.1997).
The question is whether the policy language which limits underinsured motorist coverage to vehicles covered under the policy and other vhicles used occasionall
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