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Shepherd v. Fregozo6/13/2005
id.
The ability of an insurer to exclude UM/UIM benefits under certain circumstances historically has been recognized as valid and enforceable in Colorado and not repugnant to public policy. See § 10-4-609; Terranova v. State Farm Mutual Automobile Insurance Co., 800 P.2d 58 (Colo.1990)(exclusion of UM/UIM coverage for the owner-occupant injured in a one-vehicle accident is enforceable); Cruz v. Farmers Insurance Exchange, 12 P.3d 307 (Colo.App.2000)("regular use" exclusion applicable to UM/UIM coverage is not contrary to public policy); Williams-Diehl v. State Farm Fire & Casualty Co., supra ("owned but not insured" exclusion is not contrary to public policy); Arguello v. State Farm Mutual Automobile Insurance Co., supra (same).
However, in DeHerrera, the supreme court indicated its disapproval of Williams-Diehl and implicitly disapproved of Arguella, to the extent they conflicted with DeHerrera. DeHerrera v. Sentry Insurance Co., supra, 30 P.3d at 176 n. 8. Thus, the supreme court, in obiter dictum, has announced its limited disapproval of the exclusion in the UM/UIM context.
In DeHerrera, the insured's child was injured while riding an unlicensed, off-the-road motor bike owned by the child, upon being struck by an uninsured or underinsured motor vehicle. The insured then sought Personal Injury Protection and UM/UIM benefits provided by a policy insuring her automobile. The applicable policy provided UM/UIM coverage only if an insured person was occupying a car or was a pedestrian, and coverage was denied on the basis that the child was not occupying a car and was not a pedestrian.
As pertinent here, in DeHerrera, the supreme court held that UM/UIM coverage extended to the child, an insured party, even when operating the motor bike, because UM/UIM coverage is personal, rather than vehicle specific, under § 10-4-609. The coverage thus travels with the insured, there a resident family member driving an uninsured vehicle. The court, therefore, voided the limitation on the UM/UIM coverage to insureds who are in a car or are pedestrians as being contrary to § 10-4-609 and the public policy of Colorado.
Jaimes v. State Farm Mut. Auto. Ins. Co., 53 P.3d 743, 745-46 (Colo.App.2002).
We will leave the present authoritative or unauthoritative status of Cruz v. Farmers Ins. Exchange, 12 P.3d 307 (Colo.App.2000) to the courts of Colorado.
While the appellate courts of Tennessee have not addressed the "regular use" exclusion in a context similar to the case at bar, two very relevant considerations must guide our actions.
1. As late as November 2002, the Supreme Court of Tennessee has reiterated the long-standing rule in Terry v. Aetna Casualty & Surety Co., 510 S.W.2d 509 (Tenn.1974) that Tennessee's uninsured motorist statutes do not provide for broad coverage but effectuate a limited and narrow purpose. Poper ex rel. Poper v. Rollins, 90 S.W.3d 682, 687 (Tenn.2002).
2. Tennessee Code Annotated section 56-7-1201(a)(2) providing that any named insured may reject uninsured motorist coverage in its entirety is a valid and enforceable statute. Weiss v. State Farm Fire & Casualty Co., 107 S.W.3d 503, 505 (Tenn.Ct.App.2001).
Recognizing that Tennessee is not a "broad coverage" state and that Tennessee Code Annotated section 56-7-1201 allows the named insured the unconditional option to reject uninsured and underinsured motorist coverage altogether, it would appear that the public policy considerations sustaining the Illinois , Arizona and Texas holdings are inapplicable to Tennessee.
Jackson v. Jones, 804 N.E.2d 155 (Ind.App.2004) involved an on-duty Indianapolis police off
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