Munger v. Farmers Ins. Exchange

174 P.3d 832, 2007 Colo. App. LEXIS 1305, 2007 WL 2003001
CourtColorado Court of Appeals
DecidedJuly 12, 2007
Docket06CA0101
StatusPublished
Cited by1 cases

This text of 174 P.3d 832 (Munger v. Farmers Ins. Exchange) 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
Munger v. Farmers Ins. Exchange, 174 P.3d 832, 2007 Colo. App. LEXIS 1305, 2007 WL 2003001 (Colo. Ct. App. 2007).

Opinion

174 P.3d 832 (2007)

Rebecca MUNGER, Plaintiff-Appellant,
v.
FARMERS INSURANCE EXCHANGE, d/b/a Farmers Insurance Group, Defendant-Appellee.

No. 06CA0101.

Colorado Court of Appeals, Div. IV.

July 12, 2007.

*833 David A. Klibaner, Denver, Colorado, for Plaintiff-Appellant.

Levy, Morse & Wheeler, P.C., Marc R. Levy, Heather M. Anderson, Englewood, Colorado, for Defendant-Appellee.

Opinion by Judge VOGT.

Plaintiff, Rebecca Munger, appeals the trial court's summary judgment in favor of defendant, Farmers Insurance Exchange, d/b/a Farmers Insurance Group. We reverse and remand for further proceedings.

Plaintiff was injured in a motor vehicle accident in April 2003. At the time of the accident, plaintiff was driving her father's car, which was insured by Farmers. The automobile insurance policy included basic personal injury protection (PIP) coverage with wage loss benefits for up to one year after the accident.

Farmers paid plaintiff basic PIP benefits for lost wages for approximately one year, but refused to pay further benefits thereafter. Plaintiff sued, alleging that the accident had left her disabled and unable to work, and that Farmers was obligated to continue to pay her enhanced wage loss benefits because, under Colorado law, Farmers' failure to offer her father such enhanced benefits required that its policy be deemed reformed to include them.

Farmers moved for summary judgment. It asserted that the information it had provided to plaintiff's father satisfied its obligation under the former Auto Accident Reparations Act (No-Fault Act), Colo. Sess. Laws 1973, ch. 94, § 13-25-1, et seq., at 334 (formerly codified as amended at § 10-4-701, et seq.; repealed effective July 1, 2003, Colo. Sess. Laws 2002, ch. 189, § 10-4-726 at 649), to offer enhanced PIP benefits, and that it therefore had no duty to provide plaintiff benefits beyond the basic PIP benefits that her father had selected. The trial court agreed, entered summary judgment for Farmers, and denied plaintiff's cross-motion for summary judgment.

I.

Plaintiff contends that Farmers did not make a sufficient offer of enhanced PIP coverage and that the trial court erred in entering summary judgment based on its contrary conclusion. We agree.

Summary judgment is a drastic remedy and should be granted only if there is a clear showing that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. A trial court's summary judgment is reviewed de novo. Cyprus Amax Minerals Co. v. Lexington Ins. Co., 74 P.3d 294, 298-99 (Colo. 2003); Snipes v. American Family Mut. Ins. Co., 134 P.3d 556, 558 (Colo.App.2006).

A.

Under § 10-4-710(2)(a) of the No-Fault Act, insurers were required to offer, in addition to the minimum statutorily required PIP coverage, optional supplemental coverage in exchange for a higher premium. When an *834 insurer failed to offer the statutorily mandated optional coverage, such coverage was deemed incorporated into the policy by operation of law, and the policy had to be reformed to so reflect. Snipes v. American Family Mut. Ins. Co., supra, 134 P.3d at 558; see Brennan v. Farmers Alliance Mut. Ins. Co., 961 P.2d 550 (Colo.App.1998); Thompson v. Budget Rent-A-Car Systems, Inc., 940 P.2d 987 (Colo.App.1996).

The term "offer" is not defined in the No-Fault Act. What constitutes a sufficient offer for purposes of the optional enhanced PIP coverage has not been the subject of any decisions of this court or the supreme court, although federal courts in Colorado have addressed the issue.

However, in Allstate Ins. Co. v. Parfrey, 830 P.2d 905 (Colo.1992), the supreme court prescribed the test to determine whether an insurer satisfied its statutory duty, under former § 10-4-609(2), to offer its insured the opportunity to purchase uninsured/underinsured motorist (UM/UIM) coverage at a level higher than the minimum statutory liability limits. Although Parfrey addressed UM/UIM coverage, we conclude, for the reasons set forth below, that its analysis is equally applicable to offers of enhanced PIP coverage.

In Parfrey, the supreme court construed § 10-4-609(2) as "creating a one-time duty upon an insurer to notify an insured of the nature and purpose of UM/UIM coverage and to offer the insured the opportunity to purchase such coverage" and held that the insurer's "duty of notification and offer must be performed in a manner reasonably calculated to permit the potential purchaser to make an informed decision on whether to purchase UM/UIM coverage higher than the minimum statutory liability limits." Parfrey, supra, 830 P.2d at 912-13.

Under Parfrey, in determining whether an insurer has fulfilled its statutory duty, courts are to consider "such factors as the clarity with which the purpose of UM/UIM coverage was explained to the insured, whether the explanation was made orally or in writing, the specificity of the options made known to the insured, the price at which the different levels of UM/UIM coverage could be purchased, and any other circumstances bearing on the adequacy and clarity of the notification and offer." Parfrey, supra, 830 P.2d at 913. No one factor is dispositive, and the adequacy of the insurer's notification and offer must ultimately be resolved "under the totality of circumstances." Parfrey, supra, 830 P.2d at 914.

The parties in this case disagree as to whether the Parfrey analysis applies to offers of enhanced PIP coverage. The trial court concluded that it did not, reasoning that the word "offer" as used in the UM/UIM statute, § 10-4-609(2), requires the insurance company to offer the insured "the right to" higher UM/UIM coverage, whereas, under § 10-4-710(2)(a), the insurer need only "offer" such PIP coverage in the sense of making the coverage available. Federal courts in Colorado have been split on the applicability of Parfrey to offers of enhanced PIP coverage. Compare Padhiar v. State Farm Mut. Auto. Ins. Co., 479 F.3d 727, 733-34 (10th Cir.2007)(applying Parfrey analysis to determine adequacy of State Farm's offer of optional enhanced PIP coverage, and citing unpublished federal cases that have reached differing conclusions regarding Parfrey's applicability to the issue), with Lust v. State Farm Mut. Auto. Ins. Co., 412 F.Supp.2d 1185, 1192 (D.Colo.2006)(Parfrey does not apply to offers of enhanced PIP coverage).

We conclude that the Parfrey analysis applies to determining the adequacy of an insurer's offer of enhanced PIP coverage.

The stated purpose of the No-Fault Act is to avoid inadequate compensation to victims of automobile accidents. Farmers Ins. Exchange v. Bill Boom Inc., 961 P.2d 465, 468 (Colo.1998); see former § 10-4-702. The No-Fault Act is to be liberally construed to further its remedial and beneficent purposes.

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Bluebook (online)
174 P.3d 832, 2007 Colo. App. LEXIS 1305, 2007 WL 2003001, Counsel Stack Legal Research, https://law.counselstack.com/opinion/munger-v-farmers-ins-exchange-coloctapp-2007.