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Colorado Court of Appeals Opinions
January 31, 2002

The Court of Appeals summaries are written for the Colorado Bar Association by licensed attorneys Teresa Wilkins (Denver) and Paul Sachs (Steamboat Springs). Please note that the summaries of Opinions of the Colorado Court of Appeals are provided as a service by the Colorado Bar Association and are not the official language of the Court. The Colorado Bar Association cannot guarantee the accuracy or completeness of the summaries.

No. 00CA0042. Jaimes v. State Farm Mutual Automobile Insurance Co.
Exclusion in Motor Vehicle Insurance Policy—Uninsured Motorist/Underinsured Motorist Coverage—CRS § 10-4-609—Void as Against Public Policy.

Plaintiff insured appeals the trial court’s judgment for defendant insurer. In the first appeal, the Court of Appeals determined that the exclusion in the motor vehicle insurance policy limiting uninsured/underinsured ("UM/UIM") coverage was valid, enforceable, and applicable to these circumstances. The Supreme Court vacated the judgment and remanded for reconsideration in light of a new case. On remand, the Court of Appeals now holds that the exclusion is void. Insured owned a Nissan and his wife owned a Subaru, both insured under separate policies by insurer. While driving the Nissan, which had a lower UM/UIM limit, insured was in an accident with an underinsured motorist. He settled with the underinsured motorist for the motorist’s policy limit, which equaled the insured’s policy limit, so no UM/UIM benefits were payable under the Nissan policy. Insured sought UM/UIM benefits under the Subaru policy. Insurer denied coverage on the basis that the "owned but not insured under this policy" exclusion in the Subaru policy excluded coverage, because insured was injured while driving a vehicle owned by a person who was an insured under the Subaru policy but the vehicle was not insured under the Subaru policy. Insured brought this declaratory judgment proceeding, asserting that the exclusion in the Subaru policy violated CRS § 10-4-609. The insurer moved for summary judgment. The trial court granted the motion, concluding that there was no ambiguity or conflict in the Subaru policy, and that the exclusion did not violate § 10-4-609 or public policy. The Court of Appeals reverses, holding that the "owned but not insured under this policy" exclusion as applied to UM/UIM coverage is contrary to Colorado’s public policy and therefore void. UM/UIM coverage is personal, not vehicle-specific. The coverage travels with the insured. The status of the insured at the time of accident is not germane to the insurer’s obligation. This exclusion is therefore void as against public policy. The case that sets forth this law, DeHerrera v. Sentry Insurance Co., 30 P.3d 167 (Colo. 2001), applies retroactively. The judgment is reversed and the case is remanded.

No. 01CA0097. In re the Marriage of Talbott.
Post-Dissolution Proceeding—Untimely Motion for Reconsideration—Date Order is Mailed Outside Presence of the Parties.

In a post-dissolution proceeding between father and the Denver Department of Human Services ("Department"), as intervenor on behalf of mother, the Department appeals the district court’s order denying as untimely the Department’s motion for reconsideration, and an order dismissing the Department’s request for review of a magistrate’s order. The dispositive issue is the calculation of the fifteen-day period in C.R.M. 7(a)(a) that is allowed for filing a motion for review of a family law magistrate’s order. The Court holds that where, as here, the magistrate’s order is entered outside the presence of the parties and later mailed to them, the fifteen-day period for filing a motion for review, or a motion for enlargement of time to file for review, begins on the date the order is mailed, not when it was entered. Mother received child support from the Department and the Department obtained a judgment against father for arrearages plus interest. When father paid the principal amount, the Department filed a satisfaction of judgment. A month later, the Department moved to set aside the judgment, alleging that it was inadvertently filed before father paid the interest. On October 2, the magistrate entered an order denying the Department’s motion to set aside. The order was mailed to counsel. On October 18, the Department moved for an enlargement of time to seek district court review. Father objected on the basis that the motion was untimely filed because the fifteen-day period commenced on October 2 and expired on October 17. The Department argued that its motion was timely because the order had been mailed to it on October 4. The district court denied the Department’s motion for enlargement of time. The Department moved for reconsideration of the magistrate’s order and sought district court review. The district court denied the motion for reconsideration and dismissed the motion for judicial review. The Department appeals. The Court of Appeals vacates the order. When the order is entered outside the parties’ presence and mailed to them later, the fifteen-day period does not commence until the order is mailed. The Department’s motion for enlargement of time and its later motions were timely filed. The order is vacated and the case is remanded.

No. 01CA0272. Progressive Casualty Insurance Co. v. Farm Bureau Mutual Insurance Co., Inc.
Declaratory Judgment Action—Summary Judgment—Personal Injury Protection Benefits—Proportionate Share of Claimant’s Benefits—CRS § 10-4-707(1)(c).

In a declaratory judgment action, this appeal arises from the summary judgment entered for plaintiff Progressive Casualty Insurance Company ("Progressive"), against defendants Farm Bureau Mutual Insurance Company ("Farm Bureau") and American Family Insurance Company ("American Family"), obligating the three companies to pay one-third of the personal injury protection ("PIP") benefits to claimant. Claimant, an insured of American Family, stopped and exited her truck on an icy shoulder to help the occupant of another vehicle that had flipped. The occupant of the flipped vehicle was insured by Farm Bureau. The driver of a third vehicle, insured by Progressive, tried to avoid the other vehicles but struck claimant, severely injuring her. Progressive reimbursed American Family one-half of the PIP benefits that American Family had already paid. Progressive filed suit against American Family, seeking a declaration that it was liable for the full amount of a proportionate share of claimant’s benefits. American Family counterclaimed. Progressive joined Farm Bureau as a defendant, seeking a determination that Farm Bureau and American Family were jointly liable for all or proportionate shares of claimant’s PIP benefits. Claimant was a pedestrian at the relevant time. On cross-motions for summary judgment, the trial court held that Progressive, American Family, and Farm Bureau were each responsible for a one-third pro rata share of claimant’s PIP benefits under CRS § 10-4-707(1)(c). The Court of Appeals holds that the trial court did not err in holding that the respective vehicles that Farm Bureau and American Family were insuring were vehicles "out of the use of which" a pedestrian’s injuries arose, thereby obligating each to pay a one-third share of claimant’s PIP benefits under the Colorado No-Fault Act. The court did not err in determining that each owed a one-third share of the benefits. The judgment is affirmed.

No. 01CA0384. Beach v. Beach.
Partition of Life Estate—Valuation of Life Estate—Implied Waiver of Right to Bring Action for Partition—CRS § 38-28-101.

Plaintiff mother appeals the trial court’s judgment after a bench trial in favor of defendant daughter. As part of an oral agreement, mother built an addition to daughter’s house at no expense to her daughter so that mother could live there until her death. When relations became strained, mother filed this suit against daughter, seeking partition of the addition and also alleging conversion of her personal property. The court found that the parties had entered into an oral contract that created a life estate in mother and a remainder interest in the daughter. It also found for mother on her claim of conversion of personal property and awarded nominal damages. The court rejected mother’s claim for partition, concluding that she had impliedly waived her right to partition because her life estate was limited. The court determined the value of mother’s property interest to be $48,000, as "guidance" to the parties. The Court of Appeals holds that the trial court erred in refusing to partition mother’s life estate interest in the addition. Mother was entitled to maintain an action under CRS § 38-28-101 for partition of her life estate from daughter’s remainder interest. The trial court erred in concluding that mother impliedly waived her right to bring an action for partition of the life estate. The court also erred in calculating the present value of mother’s life estate. It applied an incorrect methodology, so the valuation is set aside. The Court explains the methodology to be used, relying on 26 C.F.R. § 20.2031-7(a) as applied by the Nebraska Supreme Court, subject to certain equitable considerations. The judgment is reversed and the case is remanded.

No. 01CA0558. In re the Marriage of Stewart and Weigle.
Endangerment Standard—Modification of Parental Responsibilities—Best Interests of Child—Children’s Wishes—Statutory Changes.

Plaintiffs, City Clerk and City Council of Central City, appeal a trial court order and judgment regarding the sufficiency of recall petitions in Central City. Plaintiffs Committee for Recall make no appearance. The recall committee submitted petitions for the recall of two aldermen and the mayor. A citizen filed a protest, claiming that the committee failed to include a demand for "an election of the successor to the officer named in said petition," as required by Article XXI, § 1,of the Colorado Constitution. A hearing officer agreed that the petitions were deficient. The recall committee brought this action. The trial court ruled that the hearing officer misconstrued or misapplied the law, and that § 1 does not apply to officials of a municipality. It found that the original petitions were sufficient. A recall election was held but the voters declined to recall anyone. Defendants brought this appeal challenging the trial court’s ruling regarding the applicable recall election procedures. The Court of Appeals holds that even though the voters rejected the recall, the issue falls within an exception to the mootness doctrine and will be reviewed on the merits. The Court holds that the trial court erred in concluding that the requirements of Article XXI, § 1, do not apply to petitions seeking elections for the recall of municipal officers. Regardless of the applicability of § 1, the procedure at issue here is applicable to recall petitions in Central City under the express terms of the city charter incorporating CRS § 31-4-502(1)(a). The trial court erred, and the judgment is reversed.

No. 01CA0661. Combs v. Nowak, City Clerk of City of Central.
Sufficiency of Recall Petitions—Exception to Mootness Doctrine—Applicability of Article XXI, Section 1 of Colorado Constitution.

Plaintiffs, City Clerk and City Council of Central City, appeal a trial court order and judgment regarding the sufficiency of recall petitions in Central City. Plaintiffs Committee for Recall make no appearance. The recall committee submitted petitions for the recall of two aldermen and the mayor. A citizen filed a protest, claiming that the committee failed to include a demand for "an election of the successor to the officer named in said petition," as required by Article XXI, § 1,of the Colorado Constitution. A hearing officer agreed that the petitions were deficient. The recall committee brought this action. The trial court ruled that the hearing officer misconstrued or misapplied the law, and that § 1 does not apply to officials of a municipality. It found that the original petitions were sufficient. A recall election was held but the voters declined to recall anyone. Defendants brought this appeal challenging the trial court’s ruling regarding the applicable recall election procedures. The Court of Appeals holds that even though the voters rejected the recall, the issue falls within an exception to the mootness doctrine and will be reviewed on the merits. The Court holds that the trial court erred in concluding that the requirements of Article XXI, § 1, do not apply to petitions seeking elections for the recall of municipal officers. Regardless of the applicability of § 1, the procedure at issue here is applicable to recall petitions in Central City under the express terms of the city charter incorporating CRS § 31-4-502(1)(a). The trial court erred, and the judgment is reversed.

No. 01CA0743. Mid Century Insurance Co. v. Gates Rubber Co.
Subrogation—Indemnification Clause—Award of Attorney Fees.

In a subrogation action, plaintiff ("Mid Century") appeals the trial court’s order granting attorney fees to defendant Gates Rubber Company ("Gates"). Gates rented space to Fashion Carpets. Fashion Carpets’ goods sustained water damages. Mid Century paid insurance benefits to Fashion Carpets, and filed suit against Gates to recover in subrogation the expenses paid to its insured. The court entered summary judgment for Gates. Gates successfully requested an award of attorney fees under an indemnification clause in the lease. The only issue on appeal is whether Gates is entitled to an award of attorney fees under the indemnification clause. The Court of Appeals reverses, holding that the trial court misconstrued the indemnification provision of Fashion Carpets’ lease with Gates. The clause is an indemnification provision between Fashion Carpets and Gates for liability or expenses incurred by Gates in an action involving a third party. The provision does not apply to a claim between Fashion Carpets and Gates, nor between Fashion Carpets’ subrogee and Gates. Mid Century is not a third party for purposes of this indemnification provision. The order is reversed.

Colorado Court of Appeals Opinions

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