DeHerrera ex rel. DeHerrera v. Sentry Insurance Co.

992 P.2d 629, 1999 Colo. J. C.A.R. 1949, 1999 Colo. App. LEXIS 85, 1999 WL 179006
CourtColorado Court of Appeals
DecidedApril 1, 1999
DocketNo. 97CA1369
StatusPublished
Cited by1 cases

This text of 992 P.2d 629 (DeHerrera ex rel. DeHerrera v. Sentry Insurance Co.) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DeHerrera ex rel. DeHerrera v. Sentry Insurance Co., 992 P.2d 629, 1999 Colo. J. C.A.R. 1949, 1999 Colo. App. LEXIS 85, 1999 WL 179006 (Colo. Ct. App. 1999).

Opinion

Opinion by

Judge MARQUEZ.

In this action for automobile insurance policy benefits, plaintiff, Elizabeth DeHerrera, as mother and next friend of Lucas DeHerr-era, appeals the summary judgment entered [631]*631in favor of defendant, Sentry Insürance (Sentry). We affirm.

The following facts are undisputed. Plaintiffs son, Lucas DeHerrera, while riding his off-road motorcycle on a public street, was injured in an accident with a pickup truck. The motorcycle was neither licensed nor registered to operate on the streets and highways of Colorado. At the time of the accident, plaintiff was insured by Sentry under a policy which provided coverage for two automobiles.

Plaintiff alleged in her complaint that the cost of treatment for the injuries suffered by Lucas exceeded $100,000, and that plaintiff has been paid $50,000, the limit of liability insurance coverage from the insurer of the driver of the pickup.

Although plaintiff requested personal injury protection (PIP) and underinsured motorist (UIM) benefits, Sentry refused to provide them. Plaintiff then filed this suit seeking declaratory relief and alleging breach of contract. Both parties filed motions for summary judgment.

The trial court granted Sentry’s motion for summary judgment and denied plaintiffs motion. It concluded that Lucas was not entitled to PIP benefits because the policy provides coverage only for cars. It also concluded that no coverage, was available under the Colorado Auto Accident Reparations Act (No-Fault Act), § 10-4-701, et seq., C.R.S. 1998, because the statute specifically excludes motorcycles and off-road vehicles from the definition of motor vehicle. Finally, it determined that underinsured motorist benefits were unavailable because the Sentry policy, which the court concluded was unambiguous, provides uninsured motorist coverage for bodily injury an insured suffers “while occupying a car or as a pedestrian” and the No-Fault Act does not require coverage for individuals riding off-road motorcycles.

I.

Plaintiff contends that she is entitled to PIP benefits under the terms of the insurance contract. Specifically, she asserts that coverage is available because Lucas was the victim of an accident which arose out of the use and operation of a motor vehicle. We disagree.

The interpretation of a contract, including a contract for insurance, is a matter of law which we review de novo, Union Insurance Co. v. Houtz, 883 P.2d 1057 (Colo.1994), and this court is not bound by the trial court’s interpretation. Colard v. American Family Mutual Insurance Co., 709 P.2d 11 (Colo.App.1985).

As with any contract, we first look to the plain language of the policy itself to ascertain the intent of the parties. Unless there is an ambiguity in the policy language, the policy must be enforced as written. Jones v. USAA Casualty Insurance Co., 952 P.2d 819 (Colo.App.1997).

A policy provision is ambiguous if it is susceptible to more than one reasonable interpretation. Union Insurance Co. v. Houtz, supra; Carlisle v. Farmers Insurance Exchange, 946 P.2d 555 (Colo.App.1997).

When construing the language of an insurance contract, we must consider its provisions as a whole. Simon v. Shelter General Insurance Co., 842 P.2d 236 (Colo.1992).

An insurance policy and the endorsement attached to it must be considered as a single instrument, and, in the absence of an internal conflict that cannot be reconciled, the two documents should be construed together. Simon v. Shelter General Insurance Co., supra.

The provision upon which plaintiff relies here appears under the endorsement for personal injury protection coverage. According to that endorsement, the provisions of the policy apply unless modified by the endorsement. The endorsement in part, provides:

We will pay, in accordance with the Colorado Auto Accident Reparations Act, personal injury protection benefits shown as applicable in the Schedule or Declarations to or for an insured who sustains bodily injury. The bodily injury must be caused by an accident arising out of the use or operation of a motor vehicle.

[632]*632The endorsement defines “motor vehicle” as “any motor vehicle required to be registered and licensed for operation on the public highways of Colorado or any other jurisdiction, including trailers.”

However, the policy issued by Sentry also contains a section entitled “Plain Talk Car Policy” and includes the following provision:

When you pay the required premium, we agree that this policy provides the protection and limits you have selected as shown on the declarations page. The declarations page is part of this policy. This insurance applies only to car accidents and losses which occur while the policy is in force .... (emphasis in original)

It further states that: “We insure the car described on the declarations page and any car you replace it with.” (emphasis in original)

The policy includes the following definitions:

Car; a 4 wheel motor vehicle licensed for use on public roads. It also includes any motor home that isn’t used for business purposes and any utility trailer;
Car accident; an unexpected and unintended event that causes bodily injury or property damage and arises out of the ownership, maintenance, or use of a car or other motor vehicle;
Motor vehicle; a land motor vehicle designed for use on public roads, including ears and trailers, and any other land motor vehicle while used on public roads, (emphasis added)

The policy further provides:

We promise to pay medical expenses for your bodily injury ... suffered in a car accident while occupying a car, or as a pedestrian, as a result of having been struck by a motor vehicle, (emphasis in original)

A.

Sentry argues that the endorsement cannot be read in isolation to provide coverage and that the policy does not otherwise afford coverage for Lucas because he was not a “pedestrian” or “occupying a car” at the time of the accident. We agree.

As noted, the endorsement expressly states that the provisions of the policy apply unless modified by the endorsement. The endorsement upon which plaintiff relies must be read in conjunction with the “plain talk” portion of the policy. See Simon v. Shelter General Insurance Co., supra.

Tfie policy definition of “car accident” as quoted above limits coverage to events arising of use of a “car or other motor vehicle.” And, “motor vehicle” extends only to vehicles designed for use on public roads, which the motorcycle was not.

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Related

DeHerrera Ex Rel. DeHerrera v. Sentry Insurance Co.
30 P.3d 167 (Supreme Court of Colorado, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
992 P.2d 629, 1999 Colo. J. C.A.R. 1949, 1999 Colo. App. LEXIS 85, 1999 WL 179006, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deherrera-ex-rel-deherrera-v-sentry-insurance-co-coloctapp-1999.