*1 I hold that requirement would that a
public plaintiff Petitioner, official in a defamation PASSAMANO, ease Antonio maj. damages, op. show actual see at only showing cannot be fulfilled emotional COMPANY, TRAVELERS INDEMNITY reputation harm. must Harm be estab- corporation; an Illinois National Car out, pointed lished. As commentators have Inc., Systems, corpo- Rental a Delaware permitting plaintiffs prove damages actual ration; Leasing Corpo- and North-West merely by testifying their as to emotional ration, corporation, Respon- a Colorado purpose requiring distress defeats dents. showing of actual harm: testimony self-serving personal Because KENT and Cecil Chuck anguish Brown, Petitioners, humiliation and mental will almost (and plaintiff always be available to cases, testimony genuinely most bewill SYSTEMS, BUDGET RENT-A-CAR sincere) permit those states that emotional INC., Respondent. standing support distress alone actual damages award of defamation 92SC80, Nos. 92SC155. virtually eliminating proof are in truth Colorado, Supreme Court of meaningful “actual harm” as a barrier to a En Banc. plaintiffs’ recovery. Oct. The Law See 9.06[5][b]. Defamation 844; Time, & also Prosser Keeton at Inc. v.
Firestone, 424 U.S. at n. S.Ct. at (“It clear allowing seems
type recovery had State subverted protective
whatever the ‘actual in- influence (Brennan,
jury’ may possess”) J., stricture
dissenting).
Permitting evidence of emotional harm damages effectively
alone to establish actual damages requirement
eviscerates the actual doing, poses
and in so such a threat to First join
Amendment liberties I cannot its
adoption. Accordingly, I conclude that Keo- present
hane failed to sufficient evidence to
support jury’s damages. award respectfully
I dissent. say
I am authorized to that Justice LOHR join
and Justice MULLARKEY in this con-
currence and dissent.
gate negligent for claims of intentional or inflic- tion of distress. emotional *2 Coles, Coles, Denver, D.
Fish & Bruce for petitioner in No. 92SC80. Green, Jarvis,
Montgomery, Kolodny & Voorhis, Markusson, Denver, T. for John Van respondents in No. 92SC80. Denver, Ogden, Ralph Ogden,
Wilcox & petitioners in No. 92SC155. P.C., Burg Eldredge, R. & Matthew Gia- comini, Eldredge, Scruggs, John A. Scott J. Denver, respondent No. 92SC155. Justice KIRSHBAUM dehvered Opinion of the Court. Indemnity
In Passamano Travelers Systems, and National Rental North- Car Leasing Corp., (Colo.App. P.2d 514 West 1991), Appeals af the Colorado Court judgment summary firmed the trial court’s respondents, favor of the Travelers Indemni (Travelers), ty Company Car Rental National (National), Leasing Systems and North-West (North-West), Corporation (Passamano). petitioner, Antonio Passamano seeking filed a action refor Passamano civil mation of an between North require respon and Passamano to West provide liability insurance dents injuries ear Passamano sustained when a eoLided with a he rented from North-West uninsured motorist. vehicle driven The trial court concluded of insurance for not constitute contract did provisions of section 10-4r- (1994),1 609(1), permitting purchasing vehicles. named North-West’s When insured of the Travelers effect at the time injured, reject- uninsured and underinsured coverage. ed *3 Budget Systems, Kent Rent-A-Car executing agreement Prior on Inc., summary judg trial court entered a 9,1987, March Passamano and North-West’s against petitioners, ment Cecil Kent and agent type discussed the of vehicle be Brown, respondent, Chuck and in favor of agreement, rented and the in- terms Systems (Budget). Rent-A-Car cluding provisions permitting purchase of seeking Kent and Brown filed a civil action “personal accident insurance” and “collision of reformation an Bud between damage waiver.”3 Passamano elected to get by requiring provide Kent purchase the damage collision waiver and injuries coverage uninsured for purchase personal elected not accident petitioners an involving received in accident There was no of unin- insurance. discussion by Budget car rented to Kent and a vehicle coverage. sured motorist an by driven uninsured motorist. The trial following contains the rele- apparently argument court adopted Budget’s provisions pertaining liability vant insur- required as a self-insurer it was not ance: coverage. offer uninsured motorist Kent and 5. LIABILITY INSURANCE appealed Brown the trial court’s order to the by Authorized Driver is covered auto- appeals court of petition and also filed a liability quali- mobile or this for judg court certiorari review before arrangements, pri- fied self-insurance on a ment, pursuant Having grant 50. C.A.R. mary insurance, respect basis in to other petitions, judgment ed both we reverse the of (limits bodily $100,000 injury for death or of court in Passamano and the $300,000 accident) person, each each judgment of the trial court in Kent.2 (limit damage $25,000) property for for arising each accident from of use Vehicle
I permitted by Agreement. as Mini- Mandatory mum Fault No as re- 9, 1987, law, On quired by applicable March provided. Passamano rented an is also Vail, Colorado, Company from North- will not “Uninsured Mo- West, licensee, a National pursuant coverage, to an torist” “Underinsured Motorist” agreement containing options several supplementary or “No Fault” un- respect time, to insurance coverages At the required less such are to be party liability provided by North-West was a to a applicable law and cannot covering rejected. issued If required, rejectable, Travelers and not 10-4-609(1) therefrom; provides except 1.Section as follows: may that the named insured coverage writing. protection against Insurance uninsured mo- (1) No automobile or motor torists. liability policy insuring against vehicle loss re- sulting liability imposed by bodily law for initially opinion affirming 2. We entered an injury by any person arising death or suffered appeals' judgment court of in Passamano and the maintenance, ownership, out of the or use of a judgment ground trial court’s in Kent on the motor vehicle shall be issued delivered or subject regu- rental automobiles were not delivery respect in this state with 10-4-609(1). latory provisions §of We subse- highway vehicle licensed for use in this state quently granted petitions rehearing filed supple- or unless therein Passamano, Kent, and Brown to reconsider that thereto, bodily injury mental in limits for or conclusion. 42-7-103(2), C.R.S., death forth in set approved the commission- According op- to Passamano’s filed er, affidavit protection persons for the there- insured position tion, summary judgment to North-West’s mo- legally under who ages entitled to recover dam- exception options, with the operators these two from owners or bodily injury, offered motor vehicles because of ness, on a "take it or sick- disease, death, including resulting leave it basis.” 10, 1987, driving the car on March While be the minimum the limits will Colorado, Leadville, near Passamano was law. negli- in an accident caused volved indemnify will The Authorized Drivers gence motorist. Passamano Rental National Car and hold harmless including injuries, several sustained serious loss, liability ex- against from and all permanent loss vision broken bones pense in excess of the limits hospitalization; eye; required lengthy his left Agreement, in this result indicated from work over six was absent damage bodily injury, property death or subsequently filed months. He suit of, by, arising out the use caused respondents. operation the rental Vehicle. al- complaint, his amended insured under the Authorized Drivers *4 in leged agreement effect a the policy agree comply to with and be bound insurance; regard that with to contract terms, conditions, by limitations and all its the effect the such contract defendants restrictions, a which are made of the he, Passamano, and is the named insurer by of this Agreement reference. Evidence insured; and that the defendants violated inspection for at the is available 10-4-609(1) by failing to offer him Home Company’s Office. coverage. Passamano alleged the immediately also that Travelers was insurer An Authorized Driver will lia- for the risk covered the North-West any Company the at the report accident to bility provided Passamano was rented and location where the Vehicle rejection agreement; the that North-West’s Company the at that will also deliver to summons, the of uninsured motorist every complaint pa- or location public policy policy violated and Travelers per kind Authorized any received 10- legislative adopting the intent in any way relating to an accident Driver 4-609(1); agreement is unconsciona- involving rented under the Vehicle while ble it fails to state that North-West Driver because Agreement. An Authorized this rejected uninsured any had motorist encourage filing will not or the aid circumstances, and under the includ- because and will claim as a result of accident agreement ing format of the and the the fully Company the and its cooperate agents, Passamano conduct North-West’s investigation and defense of insurer the given meaningful opportunity to was not a any claim or lawsuit.... agreement; and that the read the entire agreement following also contains respondents’ conduct was unconscionable pertaining for obtain-
provision opportunity to failing to offer Passamano an ing damage a collision waiver: purchase uninsured (b) accept pay you and elect CDW —If summary for filed a motion The defendants Damage Waiver as indicated Collision judgment. They argued that because com- Page 2 and Authorized Driver on insured under North-West was the named all plies terms and conditions by North- of insurance executed contract you Agreement, are relieved this Travelers, only had North-West West damages caused Vehicle 10-4^609(1) reject authority under section COLLISION collision. THIS coverage. The defen- NOT INSUR- DAMAGE WAIVER IS agreement be- argued also dants ANCE. not and Passamano does tween North-West insurance and that constitute contract of provisions appear side on back These agen- require rental car Colorado does agreement printed and are of the two-sided coverage to cy provide uninsured motorist agents type-size. in a North-West did small its customers. copy Passamano with a furnish motion granted defendant’s prior The trial court to the initiation judgment. Relying summary on concerning renting of the negotiations Corpora- v. M.L.G. Davis court’s decision vehicle. tion, (Colo.1986), —coverage imposed by trial court limits state responsibility financial law determined that between Pas- where this place; is a con- rental transaction takes OR samano and North-West bailment tract, not a contract of insurance. The trial $100,000 —coverage limit of for each $300,000 court also determined that under person, but not than more occurrence, issued North-West Travel- property damage each ers, is the $25,000 North-West named insured and up limits of for each occur- Renter, rental, Passamano is additional insured. The if a time of rence trial court concluded that had no possessed Budget CorpRate valid authority acquire credentials, Charge mo- Checklist Sears coverage, and charged torist further concluded that rental is at a valid CorpRate Charge conduct of terms Checklist Sears format of the were not rate. —(If unconscionable. accepted, S.L.I. is offered and higher limit of insurance will be appeal, appeals On the court of affirmed applicable in the described summary judgment. the trial court’s brochure!.]) court general concluded that in *5 coverages automatically A1 A. conform agreement for the lease of a vehicle a requirements any to the basic of “No- car rental creates a bailment contract may applicable. Fault” law which be parties for the benefit of mutual the and that RENTER WAIVES UNINSURED agreement the of the executed AND UNDERINSURED MOTOR- agreement Passamano demonstrates that the IST, SUPPLEMENTAL NO-FAULT did a not constitute contract insurance. of AND OTHER OPTIONAL COVER- Passamano, P.2d at 515-16. court AGES. appeals agreed of with the trial court that any If coverages B. herein cannot be pur- North-West the for was named insured waived, agrees excluded or Renter poses requirements of section 10-4- coverages that such shall be automati- 609(1) the agreement and that was not cally require- reduced to the minimum unconscionable. applicable ments of the financial re-
sponsibility coverag- law and that such any shall applica- es be excess to other B ble insurance.... 27, 1989, February On Kent rented an Budget was self-insured and neither offered Denver, Budget in automobile from Colora- provided nor coverage uninsured motorist agreement do. following contained the agreement provide Kent. did provisions: relevant $100,000 Kent with of per $300,000 person occurrence, per and as well 6) LIABILITY IF INSURANCE: $25,000. property damage coverage as THERE NO OF ANY IS VIOLATION car, OF THE USE operating RESTRICTIONS IN While Kent was forced ABOVE, PARAGRAPH 5 Renter and off a the negligent road conduct of an shall, oper- Authorized Driver driving while uninsured motorist who a vehicle Vehicle, ating with lia- while under the influence of alcohol. As a bility coverage result, Brown, with accordance Kent and passenger in the provisions car, injuries. standard of a Basic Automo- sustained severe Kent and Liability bile or in Policy subsequently Insurance ac- Brown filed a civil action requirements against Budget cordance with the of a in the District Court for the qualified City County self-insurer instead of cov- and complaint Denver. Their erage, protection against liability costs, for requested damages, for declaratory and a death) causing bodily injury (including judgment reforming the rental property damage $100,- and one include uninsured motorist following applicable coverage person $300,000 per per limits: and occurrence. regula- summary judg- respecting of Title Budget filed a motion for of all of insurance as follows: ment, it tion forms asserting that a self-insurer was as provide whereby “Insurance” means contract granted one, consideration, court coverage to Kent. The trial to in- for undertakes judgment for demnify pay specified and entered motion another or upon de- Kent Brown. amount benefit ascertainable contingencies, includes risk
terminable annuities. II 4A de- Kent, Passamano, argue that and Brown of Title purposes fines term “insurer” they are effect agreements executed follows: or, alternatively, policies
liability insurance every engaged person means “Insurer” liability insur- agreements that include indemnitor, surety, or con- principal, that, They argue policies. ance either making contracts tractor in the business 10-4-609(1) event, requires lessor car of insurance. companies By offering to sell Passamano various purchasing uninsured motorist specified North- coverages prices, agree. their We lessees. of section West an insurer 10-4-609(1) respect negotiations its with Passamano. This view of the nature Passamano, the court between North-West executed concluded that rath- gives effect to substance Passamano its constituted a er than to form. See v. Mus- its Lorenzen Passamano, Inc., contract. 835 P.2d at Stand, bailment tard’s Last 196 Colo. *6 provides (1978). 516. To the extent the P.2d 14 586 specified leasing personalty on for the The determination that North-West conditions, Davis, 712 agree. we terms and purposes provisions of the is an insurer for Hoover, 987-88; P.2d at v. Christensen 10^1-609(1) requiring insurers to of (Colo.1982). However, 528-29 potential coverage fer uninsured motorist to agreement also several contains inquiry, than begins insureds rather ends the liability in describing particular automobile di are aware that courts are however. We view, provi coverages. those surance our ear question vided on the of whether lessor more mere conditions of sions constitute than North-West, agencies which North-West, owner bailment. party Travel by a third such as insured vehicle, provide to certain ers, coverage uninsured must offer personal coverage for in minimum insurance Compare v. to their lessees. Moon Guaran juries § any user thereof. 10- sustained (les (Okla.1988) Co., P.2d 1331 tee Ins. (1994). 4-703(2), (6), (8), 4A It elected unin policy auto contained sor’s business policy of insurance purchasing so do law, coverage by operation of sured motorist covering ve from Travelers all North-West’s only rejection same and written North-West Under contract hicles. lessee, insured,” ef “named held be the is an ad the named insured and Passamano cov fected of uninsured motorist valid waiver ditional insured. Co., Kohly Royal erage) with Indem. (automobile (Fla.Dist.Ct.App.1966) However, elected offer So.2d North-West also and respect agency was “named insured” options several reject mo uninsured therefore authorized coverage particular losses.4 amounts of Lapp Transport Indem. coverage); torist specified rates. options were offered Cal.Rptr. 135 Cal.App.3d 4A C.R.S. de- (truck (1985) insured, and purposes lessor was named the term “insurance” fines coverages cover- purchase addition to offers whether Passamano informed It is unclear existing age already provided "options” described in his of the that some policy an insured. which Passamano was in fact constituted with North-West reject subject therefore authorized to requirements mo- is not of section user). 10-4-609(1). coverage, binding permissive torist Section 10-4-601 defines the majority of courts that have addressed “policy” part term for the 6 in the issue have concluded that in such circum- pertinent part as follows: agency stances the ear lessor is the Definitions. As used in this named applicable insured under the insur- requires: unless context otherwise policy entity ance and is therefore the sole accept entitled to or uninsured motor- ist Lapp, Cal.Rptr. See at 136. (2) “Policy” means an automobile view, Under this the failure of a car rental policy providing coverage ance for all or agency to offer uninsured motorist Collision, following coverages: to a lessee who is an insured under an insur- comprehensive, bodily injury liability, policy previously purchased by the property damage liability, pay- medical applicable legislation does not violate ments, and coverage, uninsured motorist requiring option insurers to such an or a combination provid- automobile
to named insureds. ing bodily injury liability, property damage liability, payments, medical uninsured mo- Relying decisions, on Lapp and similar torist, physical damage coverage, de- argue North-West and Travelers that Passa- delivery state, livered or issued for in this mano was not a named insured under the individual, insuring single or husband and, therefore, Travelers was not au- wife, family residing members thorized to purchase exercise the household, insured, the same as named poli- under that under which the insured vehicles therein cy. designated are following types only: of the view, statutory our adopted scheme (a) A private motor vehicle pas- Assembly respect General senger wagon type station that is not policies general public livery conveyance used as a particular passengers nor rented to others.... compels a different conclusion. We have determined that North-West was argue only Travelers re- named insured under its insur- *7 Assembly’s flects the General Travelers, intent policy to ex- but was also an empt liability policies covering respect
insurer with agreement to its rental provisions vehicles from the of section Passamano. Thus the agreement 10-4-609(1) requiring policy insurers to offer their purposes constitutes customers the purchasing of unin- regulating of our statutes liability automobile coverage.6 sured disagree. policies.5 We As the named “Autho- rized Driver” of the rented in In construing a give statute we must full agreement, Passamano was legislative effect to the People intent. v. “named insured” purposes thereunder for of Schuett, 44, (Colo.1992); 833 Snyder P.2d 47 10-4-609(1) and was entitled to ac- Embree, (Colo. 259, Oil v.Co. 862 P.2d quire 1993). We endeavor to ascertain that intent North-West and Travelers contend that language consideration of the the rental by executed Williams, statute. Group Farmers Ins. suggest 5. Travelers and provides: that because 6. Section 10-4-608 "This 6 shall question the rental ais collision apply any policy ... insuring more than damage "personal waiver and accident policy four automobiles...." While the issued ance,” party coverages, which are first it is not a may presumed Travelers to North-West of automobile or motor vehicle vehicles, cover more than four § insurance for of 10-4-609. We dis- scrutiny here—the rental between agree. statutory provisions regulating auto- only North-West and Passamano —covers one ve- liability provisions may mobile not be construed exemption by § hicle. Thus the created 10-4- in coverages. regulating isolation from first-party statutes 608 is irrelevant. (Colo.1991). However, 419, operation if of motor vehicles our P.2d statutory language ambiguous, Although recognizes we it that this ba- is state. relevant determining means adopt problem being other can and is dealt with must sic 2-4-203, IB C.R.S. designed intent. legislative protect measures our direct legisla An examination of relevant ravages people irresponsible from the proves beneficial history frequently drivers, most very tive general assembly is also intent As ascertaining of the General much concerned with the financial loss vis- Niemet, Elec. sembly. General Co. v. upon ited innocent traffic accident victims 1361, (Colo.1994); Charnes negligent financially motorists who are 665, (Colo.1988). Boom, 766 P.2d prescribing irresponsible. the sanctions act, requirements of it is the case, give we must full effect to the In this encourage policy of this state induce and Assembly requiring language of General all motorists to for their financial to offer motorist cov- all insurers others, responsibility protection for the erage, as set forth availability widespread and to assure the the definitional of section well as insuring public protec- of insurance 10-4-601(2). However, must also consid- we against by negli- financial tion loss caused introductory language the defini- er the irresponsible gent financially motorists. 10-4-601, which provisions of section tional provides that in some the definitions contexts 1, 91, Ch. see. 333. Colo.Sess.Laws therein, including the definition of contained expressly provide Bill House 1116 did might applicable. “policy,” term not be pur- of this the codification “Declaration history legislative consider the thusWe pose.” purpose declaration of was ini- nine sections ascertain whether these tially at 1963 72-12-20 codified C.R.S. section the broad of section 10—4b- context (1965 Perm.Supp.), presumably by the revis- “policy” 609 is limited definition er of statutes. in section 10-4-601. contained 2 of House Bill 1116 contained the Section 1965, Assembly adopted the General following provisions: RELAT- BiU entitled “AN ACT House chapter Article 12 Col- AND PRO- ING TO MOTOR VEHICLES hereby Revised orado Statutes RESPONSI- VIDING FOR FINANCIAL THE BY ADDITION OF amended THE IN BILITY CONNECTION WITH to read: SECTION NEW 72-12-19 ap- THE Act OF SAME.” OWNERSHIP 30,1965, proved eh. April 1965 Colo.Sess. protection against 72-12-19.—Insurance 333-58. first two sections Laws lia- motorists. —No automobile (hereafter re- Bill 1116 sometimes House liability policy, bility or motor vehicle provi- to as “the uninsured motorist ferred resulting from suring loss sions”) requirement established bodily injury or death imposed law *8 made coverage must be any arising by person out of suffered purchasers of automobile available maintenance, ownership, of a motor or use policies. The uninsured motorist insurance be delivered or issued vehicle shall provisions codified at 1963 C.R.S. sec- were any respect to delivery in this state with (1965 Perm.Supp.), as and -20 tions 72-12-19 registered principally ga- vehicle 72, article 12 title which of amendments coverage pro- in is raged this state unless “Casualty, Fidelity, entitled Sure- article was thereto, supplemental vided therein ty Insurance— other Motor Vehicle bodily injury forth or death set limits Rating Organizations.” Rates C.R.S.1963, in section con- amended, section of House Bill 1116 provisions approved The first following language: commissioner, pro- for the tained purpose.— who persons insured thereunder tection 1.—Declaration damages assembly acutely legally entitled recover general aware The life, mo- operators of owners or suffering in human and loss of the toll bodily injury, sick- limb, by negligence in tor vehicles because property caused disease, death, 350, including resulting eight ness or Bill which will Senate sections therefrom; provided, coverage hereafter be referred to as the “Cancellation re- Act,” exclusively regulation related quired ap- under this section shall not be procedures for the cancellation plicable where insured named in the policies initially and were codified policy coverage; pro- shall (1969 at 1963 C.R.S. sections 72-30-1 to -8 further, vided that unless the named Perm.Supp.).7 requests writing, sured such need prefatory language The to the definitional supplemental policy to a renewal where the sections of the Cancellation Act reflects the rejected named insured had Assembly’s General intent to limit the defini policy previously in connection with a is- eight tions contained therein to the substan to him sued the same insurer. provisions tive thereof.8 The broad declara policy tion of contained in 1963 sec Ch, 1116, 91, 2, H.B. sec. 1965 Colo.Sess. (1965 Perm.Supp.), tions 72-12-19 and -20 Laws 333-34. Bill This section of House repeated verbatim section 2 of the 1116 was codified at 1963 C.R.S. section 72- Act, Responsibility 1965 Financial then codi (1965 Perm.Supp.). 12-19 (1965 13-7-2, fied at 1963 C.R.S. section n majority remaining sections of Perm.Supp.), adop was not affected repealed Bill statutory House numerous July tion of the Cancellation Act. Thus as of provisions formerly codified article 1, 1969—the effective date of the Cancella chapter 13 of the Colorado Revised Statutes Assembly adopted tion Act—the General had provisions and reenacted those as the “Motor statutory two distinct schemes. Former (1965 Responsibility Vehicle Financial Act” 1116, Bill House then codified at 1963 C.R.S. Act). Responsibility Financial The 1965 Fi- (1965Perm.Supp.), sections 72-12-19 and -20 Responsibility nancial Act contained a “Dec- purchasers that all of automobile purpose” language laration of identical to the policies op be offered the of section 1 of Bill House 1116. 1963 C.R.S. purchasing tion of uninsured motorist cover (1965 § Perm.Supp.). 13-7-2 age to effectuate the broad articulated purpose of the declaration of contained in the declaration of set forth in 1963 Responsibility 1965 Financial Act has re- (1965 Perm.Supp.) C.R.S. section 72-12-20 (1994 § mained intact. 17 C.R.S. encouraging protect motorists to themselves 337, 1, 42-7-102,1994 Supp.). See Ch. sec. negligent losses caused con 2094, Colo.Sess.Laws financially duct of irresponsible motorists. See Kral v. American Hardware Mut. Ins. 1969, years four after the enactment of (Colo.1989). 784 P.2d Former the uninsured motorists and the Senate Bill then codified at 1963 C.R.S Act, Responsibility 1965 Financial the Gener- (1969 Perm.Supp.), sections 72-30-1 to -8 Assembly adopted al “AN ACT CONCERN- established criteria for cancellation of certain ING THE REGULATION OF AUTOMO- policies. defined automobile insurance BILE INSURANCE POLICY CANCEL- adoption of the Act in Cancellation 1969 did 1, 1969, approved July LATION.” Act ch. not undermine the intent or effect of the 1-10, secs. 1969 Colo.Sess.Laws 549-51. adoption in 1965 of House Bill 1116. sections, Bill Senate 350 contained ten safety last two of which consisted of a pursuant clause to 1963 C.R.S. section (1971 provision establishing and a the effective Perm.Supp.), 135-6-1 the revisor of eight completed date thereof. The substantive general sections statutes recodification of *9 72, 30, parties suggested 7. The phrase have not that the few As codified in title article the was portions §§ minor amendments to 10-4-601 § altered to state used in this article.” "[a]s 72- to -608 on various occasions since 1965 affect 30-1, (1969 Perm.Supp.). 1963 C.R.S. provisions. substance the of these change language in did not alter the fact that the provisions definitional of the Cancellation Act prefatory language 8. The to the definitional sec- any way sweep did not in affect the broad of the tions of Senate Bill 350 referred to the definition of House Bill 1, approved July used in this "[a]s 1969, Act.” Act 1116. 192, 1, ch. sec. 1969 549. Colo.Sess.Laws
1321 in The unin recodified 1973 at sections 10-4-601 Revised Statutes.9 and the Colorado (1973). -608, 4 provisions originally con C.R.S. sured motorist recodified in House Bill 1116 were tained noteworthy eight sec- It is also that 10-4-319 and change at sections without comprising the Act do not tions Cancellation (1973). Act -320, 4 The Cancellation C.R.S. subject as section the same matter address 10- change without at sections recodified was (1994). 10-4-609, 4A The definitions C.R.S. (1973). 1969, -608, 4 in C.R.S. As 4-601 to policies embodied in sections 10-4-601 limiting language of of the the definition designed private protect but to -608 10^4-601(2), at “policy”, codified section term commercial from unfair insur- consumers (1973), 4 had no on the broad effect C.R.S. They procedures. termination provi motorist language of relevance to motorist have no the uninsured at 10-4-319 and sions then codified sections in provision set forth 10-4-609. section (1973). -320, 4 C.R.S. 1979, 10^-320, 4 section C.R.S. initially containing purpose the declaration of 1979, Assembly repealed the General Bill in as 1 of House adopted 1965 section 10-4-319, (1973), requiring 4 section C.R.S. 69, 7, 1116, repealed. also sec. was Ch. purchasers However, language 360. Colo.Sess.Laws opportunity purchase offered the ance be purpose to the set identical declaration originally coverage, motorist initially in Bill 1116 section 1 of House forth Bill in 1965 as 2 of House adopted section 42-7-102, unaltered retained in section initially at 1963 C.R.S. 1116 and codified (1973). in 17 C.R.S. Thus General (1965 69, Perm.Supp.). § sec. Ch. 72-12-19 Assembly commit- reaffirmed its continued 7, Simultaneously, 360. 1979 Colo.Sess.Laws specific require- ment to the broad language of section the identical former in established the uninsured ments 10-4- Bill 1116was enacted as section House provisions of Bill 1116 as well motorist House (1973 Supp.).10 & 1979 Ch. C.R.S. policies to the articulated and effectuated 10-4-609, 11, § sec. 1979 Colo.Sess.Laws by the Cancellation Act. Act remained codified 377. Cancellation (1973 -608, 10-4-601 to 4 C.R.S. & view, In our this examination language 10^4- Supp.). The of section history the uninsured of the codification of (1973 remained Supp.), & 1979 C.R.S. provisions of Bill House exclusively requirement Act, to the directed Re and the 1965 Financial Cancellation purchasers liability insurance leg of automobile unflagging sponsibility Act evidences an pur- policies opportunity be offered in intent to assure that motorists islative re- protect That opportunity chase uninsured afforded an state are pur- quirement resulting furthered the from the declaration from losses themselves financially irresponsible Bill pose in 1 of House negligent articulated conduct legislative 1116; of motor vehicles.11 relationship operators it had no change meaning Act of a statute requirements of the Cancellation intent to general will not be Bill 350 course of a revision articulated 1969 in Senate first Act, pertinent provides which statute 9. Revised Statutes was enacted Fault “Colorado repeal and of the Colorado as a reenactment part as follows: supplements Revised Statutes 1963 and thereto, assembly purpose general declares that its for in section 2-5-122.” inadequate enacting this article is to avoid (1994 Supp.). § IB C.R.S. The re- acci- compensation to of automobile victims changes ar- authorized to visor was make dents; require registrants of motor vehicles terminology im- rangement and which would laws, clarity prove style covering procure but in this state § change 2- the substance of statute. ownership not to 5-103(2), liability arising use of legal out of (1980). C.R.S. IB providing benefits such vehicles also per- occupying and to persons such vehicles is now codified at This involving vehi- injured in accidents sons 4A cles. *10 1, 13-25-2, 94, § Colo.Sess.Laws sec. 1973 Assembly Ch. 11. reaffirmed this The General passage in 1973 Colorado No with the of the 1322 required
inferred unless an intention We conclude that between by express legislative language. Budget See Davis a contract of and Kent constitutes Conour, 382, 1015, 10-^4-609(1) 376, v. 497 purposes 178 Colo. insurance for of section (1972). 1018 No such intent was indicated required unin- and that to offer Assembly the General when it recodified sec- coverage sured motorist to Kent. 2 Bill 1116 to section 10-4- tion of House parties pointed to Both have numerous 609(1). contrary, To the the decision of the jurisdictions decisions from other that have Assembly in 1979 to retain the lan- General applicable addressed the issue of whether 1 Bill guage of section of House 1116 verba- legislative provisions establishing terms and 2 of the Motor Finan- tim section Vehicle conditions of automobile insurance contracts Responsibility Act 42- cial codified section require agen self-insured lessor car rental 7-102, (1973), 17 reflects the General C.R.S. cies to offer uninsured motorist Assembly’s perpetuate intent the broad their lessees. Several courts have held that policy articulated therein.12 reject
self-insured lessors cannot
prospec
on behalf of their
reasons,
foregoing
For the
we con
Robinson,
Twyman
tive lessees.
v.
255 Ga.
“policy”
clude that the definition of
contained
711,
(1986);
Sur.
116 Ariz.
(1983);
also reverse the
Jordan v.
So.2d
statute,
Budget
in Kent and Brown v.
Rent-A-Car
(superseded by
see
Ct.App.1981)
Clark,
(La.Ct.App. Systems, Inc.
v.
Ohio Co. v. Transit American States Ins. Utah VOLLACK, J., dissents, ROVIRA, (Utah Auth., 1985); Shelton v. C.J., joins in the dissent. Co., Re-Insurance 210 Va. American (1970). These decisions are 173 S.E.2d specially concurring: ERICKSON Justice upon great based examination of to a extent granted specially I concur. certiorari We legislative provisions governing particular pursuant and consolidated Pas to C.A.R. con content of automobile insurance the Indemnity samano v. Travelers tracts. Budget (Colo.App.1991), P.2d. 514 with Kent Inc., Systems, for review. nt-A-Car Re provi We have determined that 10^1-609(1) an requiring in of section sions center on a determination cases a named insured surer or under-insured motorist whether uninsured motorist opportunity purchase uninsured by a car had to be offered rental applicable are to automobile insur time customers at the that automo- policies covering rental vehicles. contract, Principles of biles were rented. Cf. (1994). 10-4-601(2)(a), § Entities involved, bailments, are and insurance law entitled, Budget pursuant as are primary issues relate but 10-4-716, 4A to elect to C.R.S. motorist statutes enacted under-insured However, the fact self-insurers.13 become Assembly. by the General Budget to become a “self-insur elected material controlling. What is is er” is I client, its relationship had with North-West was an insurer Kent. Just as way Passamano by are that Passama facts Passamano executed, in the role stands Vail, Colorado, no rented ’ respect to Kent in view the insurer Leasing Corporation from North-West by agreement executed Kent. our (North-West), a of National Car licensee Kent, view, named the car as the driver (National). Systems Rental North-West was agreement, the named insured un policy issued party to a the automobile insurance contract be der (Travel Indemnity Company Travelers Therefore, Budget, Budget. Kent tween ers) covered North-West’s vehicles. insurer, required by 10-4- as an rejected cov insured, 609(1) Kent, offer the named erage purchased it when pro rejecting option of Travelers. contrary conclusion We tection. Leadville, driving the car near Colo- While trial court. reached rado, involved a collision Passamano was of an uninsured negligence caused
Ill inju- serious motorist. Passamano sustained against respondents Trav- reasons, reverse ries and filed suit foregoing For the we elers, North-West, In his and National. judgment of the court Passa complaint, alleged that Company amended Indemnity mano v. Travelers 10-4-716(1), provision, § part 4A This pertinent Section 10-4-716 states in provision, enact- follows: like the uninsured (1) Any person in Self-insurers. whose Financial ed as of the Motor Vehicle twenty-five vehicles more than name Responsibility Act. Ch. sec. registered may qualify as ob- a self-insurer 333, 354. 1965 Colo.Sess.Laws taining a certificate of self-insurance issued the director. *12 summary judg- provi- Budget filed a motion for agreement, the rental which contained ment, insurance, claiming in that as a self-insurer it was pertaining to was sions claiming required to offer uninsured motorist cov- a contract of insurance. In that fact erage granted court Bud- respondents the and that to Kent. The trial were insurers insured, get’s Passamano asserted that motion. he was 10-4-609(1), 4A respondents section violated failing him unin- by to offer
C.R.S.
II
coverage.
sured
summary judgment,
In
motion for
their
Assembly in
The intent of the General
argued
respondents
that because North-
enacting
provides
which
insured under the in-
West was the named
right
motorists with the
to uninsured 'motor
surance contract executed
rejected,
coverage
specifically
if not
was
ist
Travelers, only
and
North-West had authori-
protect
to allow motorists to
themselves
10-4-609(1)
reject
ty
unin-
under section
negli
losses caused
the conduct of
coverage.
also
Respondents
sured motorist
gent
financially irresponsible
and
motorists.
alleged
agreement
between North-
Mut.
Kral v. American Hardware
Ins.
West and Passamano was not an insurance
(Colo.1989).
result,
784 P.2d
As a
contract,
require
and that Colorado does not
10-4-609(1) requires
that uninsured
agencies
car
to offer
motor-
in
be offered
ist
to their customers.
policy, “except that
the named in
vehicle
trial court held that
may reject
coverage writing.”
in
sured
Passamano and North-West was a
between
purpose
permit
of the statute is to
contract,
bailment
insurance contract.
insured to make an informed choice whether
Under the insurance
issued to North-
purchase
coverage.
uninsured motorist
Travelers,
byWest
the trial court deter-
Parfrey,
Allstate Ins. Co. v.
ed).
legisla-
protect
to allow motorists
expresses
“the
themselves.
This statute
clearly
This intent is
articulated
the Gen
compen-
prime concern is the need to
ture’s
Assembly’s
policy. §
10-
eral
declaration
injuries
innocent driver for
received
sate the
*13
scope
determining
4-320.
In
the
and intent
damages
hands
one from whom
at the
statute,
guide
the
is
the
best
often
Ins. Ex-
cannot be recovered.” Farmers
Gross,
policy. People
declaration of
v.
830
McDermott,
305,
change
Colo.App.
34
308-
v.
(Colo.1992). Finally, in interpreting
P.2d 933
(1974).
918,
09, 527 P.2d
920
laws,
liberally
the
should
court
liberally
are to be
con-
Insurance laws
to
construe them further their remedial and
in order
further their remedial and
strued
to
Barnes,
purposes.
beneficial
191
Colo.
purposes. Travelers Indem. Co. v.
beneficial
278,
were enacted to the defini- B excluding tion and lessees because protection would the intent of frustrate construing primary A court’s task in 10-4^609(1) statute, requires rental section give legislative statute is to effect to intent. agencies lessees (Colo.1992). Schuett, People v. P.2d 44 purchase coverage. uninsured motorist legislative intent, the court To discern first begins B.B. looks statute. definitional (Colo.1990). “policy” People, my phrase In that the definition of is to be major change provid- practice no 1. There is 1965 Colo.Sess.Laws 335-36. accept ing opportunity provision lessees with an was ex- the uninsured motorist Many coverage. uninsured motorist car Responsi- Motor cised from the Vehicle Financial agencies already allow customers check bility placed Insur- in the Automobile types coverage they boxes to select the purchase. wish to attending Regulations without the sections Therefore, is evident that the in- definitions. it Assembly enacting unin- tent the General noteworthy "policy” It definition car sured was not to exclude provisions that were in the enacted agency lessees. Act did exclude Uninsured Motorist 13-7-3(11) agencies. § See ch. sec. & B requires.” otherwise “unless the context used KM-601, In these signed The fact that Kent cases, of the uninsured motorist the context coverage and waiving uninsured motorist legislative require intent provision and the distin- Budget is a self-insurer does not that 609(1) include “policy” in section 10M— regarding guish case from Passamano of a rental requirement that a rental fundamental coverage. provide for insurance offer between the
The relevant
is still
agency.
car rental
order to
lessee and the
Ill
As-
give effect to the intent of the General
*14
right
sembly,
given the
to
the lessee must be
refuse uninsured motorist
majority
that North-West of-
The
reasons
respect
Budget
an insurer with
to
was
to
various insurance
fered
sell Passamano
agreement
he
Kent
virtue of the
and, therefore,
options
specified
at
rates
was
named in the car
executed. As the driver
an “insurer” for
of section 10M-
in-
agreement,
the named
Kent was
609(1).
con-
under the automobile insurance
sured
Budget
Budget.
coverage protects the
tract between Kent
Uninsured motorist
required to offer uninsured motor-
passengers rather than the was thus
renter and his
10-4-
acquires
protection
ist
to Kent under section
agency.3
ear rental
The renter thus
609(1).
a “named insured” under
the same status as
by a commercial carrier. Be
issued
agency
insuring its
cause the rental
is
lessees
IV
duty
passengers,
their
it has the same
agency
agreement
An
between a car rental
good
dealing,
fair
and the
faith and
same
requires
that
the lessee to elect
and lessee
duty
provide statutorily required coverage,
to
particular types of insurance
cre-
Budget
other insurer. See
Rent-A-
10-4-
ates an insurance contract. Section
(Colo.
Martin,
Corp. v.
part and rev’d in
on other
reject
coverage. Accordingly, I
money paid to rent the automo
Part of the
would reverse and remand with directions
required by
provides
bile
the insurance
Colo
con-
proceedings
further
consistent with this
law,
causing the rental
rado
currence.
a contract between the car rental
become
agency
Davis v. M.L.G.
and its lessee. See
dissenting:
Justice VOLLACK
(Colo.1986). Holding
Corp.,
erage
prospective
customers and that
insured,
samano,
as a named
entitled
The determinative issue
these eases
cover-
acquire or
statutory scheme con-
whether Colorado’s
10-4-609(1), 4A
age pursuant
cerning
Regulations
Automobile Insurance
majority
therefore
Id.
requires
a car rental
to offer unin-
between
concludes
the rental
renting
sured motorist benefits to customers
and Passamano constitutes
North-West
automobiles.
policy.
Indemnity
In Passamano v. Travelers
majority
the rental
also concludes that
Inc.,
Systems,
National Car Rental
respondent
between
Leasing Corp.,
court is, policy, nated insured of Travelers’ a contract of insurance but named ment is not instead, Id.; writing reject unin- its see Davis exercised bailment. (Colo. Corp., 712 P.2d 987-88 sured motorist M.L.G. 1986) (“Leasing from a car rental a vehicle Passamano rented an automobile agency creates a bailment contract for North-West, North- a licensee of National. parties.”). mutual benefit of West’s standard two-sided granted motion for The trial court customer, concerning the elicited information summary judgment respondents Travel- payment, including the method of the vehicle ers, North-West, and National Car Rental date, rented, and contained and the rental (National). Relying upon Systems, Inc. respect options to insurance cov- several Corp., 712 in Davis v. M.L.G. court’s decision erage.5 signing the Prior to Passamano’s (Colo.1986), trial court deter-
P.2d 985 form, sales- Northwest’s mined that the car rental between person at the sales counter discussed with North-West created a bail- Passamano and type to be rented Passamano the of vehicle ment contract for the mutual benefit both agreement, length the terms of the parties and did not constitute a contract term, optional of the rental insurance. The trial court also determined including charge, available for additional that, policy issued to under the insurance “personal accident insurance” and “collision Travelers, North-West was damage waiver.” and Passamano was an the named insured agreement provided liability The rental The trial court therefore additional insured. coverage provisions. coverage and no-fault authority that Passamano had no concluded provision paragraph acquire uninsured motorist cov- agreement provided perti- the rental 5 of *16 erage. nent as follows: Systems, Kent Rent-A-Car 5. LIABILITY INSURANCE Inc., summary judg- trial court entered by an auto- Authorized Driver covered Budget. petitioners, ment favor of liability policy quali- mobile insurance Brown, for Kent and Chuck moved Cecil ... arrangements fied for self-insurance summary judgment, claiming that (limits $100,000 bodily injury or death each required provide was accident) $300,000 person, and for each coverage a of an acci- as result automobile (limit $25,000) property damage for each by that involved a ear rented to Kent dent arising from use of as accident Vehicle by Budget and a vehicle driven an uninsured permitted Agreement. this Minimum Budget thereafter filed a cross- motorist. required Mandatory No Fault summary judgment for the trial motion provided. applicable law is also Com- self-insurer, that, it court on the basis as a pany provide not Motor- will “Uninsured required not to offer uninsured motorist was coverage, ist” “Underinsured Motorist” coverage to Kent. un- supplementary “No Fault” coverages required to be less such are
II. provided by applicable and cannot be law rejected. rejectable, required, A. If and not minimum the limits will be the liability purchased insurance North-West law. from that covered all of North- Travelers colli- The rental also contained a West’s vehicles. North-West maintained Travelers, damage provision which stated in policy sion waiver this insurance provided part: no- COLLISION DAMAGE which “THIS fault for the renters of North- WAIVER IS NOT INSURANCE.” agreement. given "options” opportunity in the rental 5. Lessees were to select coverages which were referred to as additional 2-202(1), representatives the sales majority that the rental and thus contends agents Travelers. agreement between North-West Passa- cannot considered Further, substantively a contract of insur- North-West nor its sales- mano neither offering coverages for persons insurance of Colora- were licensed State specified Maj. op. at 1317. I dis- prices. lawfully registered to act insurance do agree. agents policies nor authorized issue motorists. insurance to correctly of appeals the court deter-
As
mined,
not undertake to
North-West did
principles
Basic
of contract law serve
statutory
demnify Passamano within the
defi-
majority’s holding a
further
discredit
provided
of “insurance”
nition
a
rental
to be
contract of
10-1-102(7), 4A
835 P.2d at
C.R.S.
person
A
ance.
contracts with a ear rental
Rather,
between
agency with the intent
rent a car.
Travelers
person renting
a car does
contract with
responsible
processing
Travelers
purpose
buying
agency
car
paying
Accord-
claims
North-West.
protect
him/her
ing
appeals,
to the court
contractual
an accident
an uninsured motorist.
Travelers,
arrangement
establishes
con-
agency
establishes
terms and
North-West, was
insurer.
agreement,
including
ditions
the rental
view,
my
10-1-
sections
cover-
whether
102(8),
(1994),
10-2-202(1), 4A
age.
person accepts
If
terms and
dispositive
on the issues of
agree-
conditions
in the
delineated
a rental
is a contract of
whether
ment,
may
person
rent the ear.
If the
representa-
and whether the sales
person
accept the
condi-
does not
terms and
of a car rental
are insurance
tives
specified
agreement,
tions
in the rental
then
agents.
person
not have
rent
the car.
does
10-1-102(7)
the term “in-
defines
this court
Decisions from
and the Califor-
one,
whereby
surance” as “a contract
Appeal
nia Court
have arrived at a similar
consideration,
indemnify
undertakes
an-
though
outcome
these cases involved
even
pay
specified
or to
other
ascertainable
statutory
pre-
contexts different from that
or benefit
determinable risk
upon
amount
example, in
sented here. For
United States
10-1-102(8)
contingencies.” Section
defines
*17
Fidelity Guaranty
&
Co.
Rent-A-
“every person
“insurer”
mean
the term
to
Inc.,
(Colo.1992),
Systems,
P.2d
Car
842
208
indemnitor,
engaged
principal,
surety, or
as
required
interpret
to
a Bud-
where we were
making
con-
contractor in
business of
Fi-
get
agreement and
United States
added.)
(Emphasis
insurance.”
tracts delity’s
policy
purposes
of basic
insurance
10-2-202(1)
an
defines
“insurance
liability coverage, we stated that the “Rental
by an
agent”
person appointed
as “a
insurer
represent
an
Agreement
not
itself as
does
policy
applications
for a
of insurance
solicit
contract, although
purports
insurance
it
a
negotiate
of insurance on its
‘in
insure Authorized Drivers
accordance
behalf.”
Auto-
of a Basic
standard
statutory provisions
Applying these
at
Liability
Policy.’”
mobile
Insurance
Id.
ease,
ample
I
there is
facts of this
believe
n. 4.
211
support
appeals’
the court of
evidence
Motors, Inc., 198 Colo.
holding
was a bail-
In Nelson v. Strode
(1979),
366,
a renter
Strode automobile, claiming he was question him arises each con- that when the protections entitled to various by its own terms as tract must be tested law. We on contract and insurance based written, they they as are understood are the renter as an insured under viewed applied they are parties, and as policy, as the existing and Strode Motors particular circumstances determined named insured.6 We therefore volved.” obligated to ob- that Strode Motors was Truta, 813-14, Cal. Cal.App.3d at 238 193 cov- for the renter additional insurance tain Transportation Rptr. (quoting 806 Guaran cov- erages aside from the 629). Co., 174 P.2d at tee erage bodily injuries property dam- age. Transportation Guarantee The court Appeal has also The California Court continued: Co. not a held that a rental (with recipro- obligations their “Plaintiffs that, such, insurance, and a rental repairs, to rights) to make cal contractual company cannot be held to the standard of order, running good maintain the truck in statutorily mandated an insurer to constantly keep a truck available coverage, including mo except for reasonable service owner torist Truta v. Avis Rent-A-Car Inc., 802, opinion, make the periods, do not our Cal.App.3d 238 Cal. Systems, 193 obligations Rptr. plaintiff The Truta court reviewed 806 an insurer. Such appellate that had al California decisions ordinarily to those undertaken similar ready question addressed the of whether and, we are lessor of motor vehicles unless entity engaged in the business particular prepared to hold that lessor of such example, For the court exam of insurance. contract, vehicles, entering is in into such analysis performed ined the California business, then we should not Garrison, Physicians’ Service v. 28 Cal.2d is, account, in plaintiff hold that on that in which the court 172 P.2d such business.” providing held that medical services low- Truta, Cal.App.3d Cal.Rptr. at monthly patients paid who member income (quoting Transportation Guarantee engaging in the ship dues did not constitute 631-32). principal pur insurance business because P.2d object operation pose or was service summary, I conclude that a car rental Truta, indemnity. rather than 193 Cal. constitute a contract of does not Cal.Rptr. (citing Cali App.3d at 10-1- insurance for the of section 16). Serv., Physicians’ 172 P.2d at fornia 102(7), representatives a car and that sales additionally analyzed the The Truta court agents are not of an insurance reasoning employed Transportation Guar 10-2-202(1). company provided in section Jellins, 29 Cal.2d *18 antee Co. I further hold that a car rental does (1946), 625 where the court determined pursuant assume the status of an insurer not containing pro truck maintenance contracts 10-1-102(8) since a car rental to section company agree that the maintenance visions making of agency is not the business to insure the vehicles for the owner with contracts of insurance. The court of company did not consti authorized correctly therefore determined that the rent- Transporta tute insurance contracts. The Passamano and al between court stated: tion Guarantee Co. a and not an North-West was bailment jurispru- satisfied that a sound “We are contract, North-West, a and that extension, surance suggest dence does insured, to offer construction, named judicial of the insurance laws every involving an as- uninsured motorist benefits to Passamano. govern contract insured, Nelson, controlling a vehicle as an and 10-4- status of a renter of statute 706, insured, (1973), governing no-fault bene- cannot be diminished. not as a named Nevertheless, distinction between the fits. 1331 (a) pas- of the private motor B. vehicle wagon type senger or station that is not performs majority a laborious statuto- livery public conveyance a for used as or of ry analysis and examination construction passengers nor rented others[.] Title legislative history behind Part 6 of 4, 10, consequently digresses Article and (1994), 10-4-608, 4A C.R.S. which meaning statu- plain from the of relevant exempts protection part of 6 those from the tory provisions. insuring policies more than four vehicles or well-accepted agencies, Pursuant to rules of statuto covering garages, automobile sales construction, ry interpreted is to be statute enterprises, provides and similar commercial give meaning to all applied so as to as follows: thereof, mean portions upon plain based Exemptions. part ap- 6 This shall not Group, Inc. v. ing of its terms. Farmers any ... than ply insuring more (Colo.1991); Williams, 419, 805 P.2d automobiles, any policy covering four or Press, City Inc. v. A.B. Hirschfeld repair garage, agency, sales automobile (Colo. Denver, 917, P.2d County of station, public shop, parking or service 1991). Further, legislature defines when the hazard, place operation any policy or to term, give to that meaning courts must per- principally insurance issued to cover definition, it definition use that wherever premises liability of an insured sonal City R.E.N. appears in the statute. though may pro- even such insurance also (Colo. 1359, Springs, P.2d Colorado vide some incidental for 1992). Moreover, that, axiomatic when it is maintenance, ownership, arising out unambig statutory language clear is premises of the motor vehicle on the or use uous, interpret the statute the courts should insured, ways or on the immediate- of such not resort the rules written need adjoining ly premises. Cox, 828 statutory construction. Jones v. (1994), gov- 609(1),4A C.R.S. Section 10-4— 218, (Colo.1992); Board P.2d Bloomer v. benefits, and dic- erns County, County Boulder Comm’rs tates under what circumstances such benefits (Colo.1990). provided: must be policy” is defined The term “automobile liability or vehicle No automobile motor 10-4-601, 4A within section liability policy insuring against result- loss provides “policy” definition of which bodily ing liability imposed from law for 6 of Article is to be utilized Part Title by any person injury or death suffered requires”: “unless context otherwise maintenance, ownership, arising out of the Definitions. As used of a vehicle shall be delivered or use requires: unless the context otherwise delivery this state or issued respect motor vehicle licensed (2) “Policy” an automobile insur- means use highway in this state unless all or policy providing supplemental there- therein Collision, following coverages: any of the persons protection insured to ... for liability, bodily injury comprehensive, legally entitled to re- who are thereunder liability, pay- property damage medical damages operators owners or cover ments, coverage, and uninsured motorist because of uninsured motor vehicles policy provid- or a combination sickness, disease, injury, includ- bodily liability, damage bodily injury property ing death, therefrom; resulting except that ing *19 liability, payments, mo- medical may reject cover- the named insured torist, damage physical coverage, de- age writing. in state, delivery in this livered or issued for view, individual, statutory is un- my In insuring single or husband wife, we are bound residing ambiguous in therefore family members insured, Only by con- household, as written. apply the statutes as named the same statutory provisions part in struing the therein which the insured vehicles meaning plain following only: we effectuate types together do designated are of the part apply to also my cy” articulated within Based on read- of the relevant statutes. 10-4-601, 10-1-608, coverage. Nothing con- and 10—1- uninsured motorist ing of sections re- within section 10-4-609 “otherwise together, I conclude that the uninsured tained “policy” apply quires” a car that a different definition provision does not motorist provided in section 10-4- covering apply vehicles from that agreement 601(2). Assembly If had not the General are rented to or to an automobile others in provided definitions 10^4- insuring more than four ve- intended the policy insurance 10-4-608, in exemptions provided hicles.7 10-4-609, Assembly apply to the General majority The concludes that the rental in easily have stated so when could liability agreement constitutes automobile again amend- uninsured motorist section policy pursuant to section 10-4- present form. The General As- ed into its 609(1). majority this conclusion The reaches however, express sembly, made no effort to determining “policy” that the definition of part rest isolate 10-4-609 from the 10-4-601(2) applies only to sections in section -608, defining “policy” in section 10- 10-4- In the term 10-4-601 to and not to section 4-601(2) liability in- devising holding, majority to mean an automobile 609. In this insuring types hoops certain of vehi- jumps through endless to reach this surance excluding motor vehicles rented to cles but result. others, I conclude that section 10-4-609 does majority the lan- The does construe apply to the rental issued exempting in lia- guage section 10-4-601 My North-West to Passamano. conclusion policies covering bility insurance rental vehi- by examining reinforced the other further provisions of 10—4- cles from the section statutory provisions part in 6 and relevant 609(1). looking Maj. op. at 1318. I do. In (1994), 10-1-102(7), 4A 10-1- sections C.R.S. agreement only, majority at the rental so 102(8),4A 4A C.R.S. quickly forgets that 10-4-601 defines section C.R.S. ” “policy as an automobile majority exemp- policy providing also discounts rented to tions created in section 10-4-608 constru- to an insured vehicle which is not ing in from the rental isolation others. North-West’s majority’s chronologi- emphasis on the performing with Travelers. history Poli- cal of the Automobile Insurance maneuver, majority creative mechanical cy Cancellation Act—first articulated casually undisputed passes off the fact that -8, 72-30-1 to and recodified in as sections North-West, by being car virtue of a rental -608, 4 sections 10-4-601 to agency, than four automobiles.8 insured more (1973) unin- to convince me that the —fails plain language pro- 10-4-608 section provision originally codified sured motorist — 6, including part that no vides (1965 72-12-19 Perm. 1965 as section 10-4-609, require shall an automobile insurer Supp.), and later removed from the Motor policy insuring more than four who issues a Responsibility Financial section and Vehicle provide or offer uninsured automobiles to amendment to the Automo- added majori- coverage. Contrary to the section, Regulations Insurance as section bile ty’s analysis, exemptions I believe (1973 Supp.)— 4 C.R.S. & 1979 apply 10^V608 to the separately the other should be read facts of this case. majori- Contrary part 6. contention, view, majority’s my decision is also ty’s the decision of the General plain language of sec- Assembly in 1979to reenact section 72-12-19 irreconcilable with stat- As- tion 10-4-609. The uninsured motorist as section 10-4^609 reflects General provides au- sembly’s “poli- requires ute an insurer who intent to have the definition owned, majority 8. The states the obvious: the rental 7. The record indicates leased, operated approximately between North-West and Passamano a fleet of and/or *20 only vehicle. vehicles in the course of its rental activities. covers one (If accepted, a higher is and offer S.L.I. offered liability insurance tomobile provided liability limit of will be coverage to the named uninsured motorist brochure[.]) applicable described in the as may re- although be insured such the named insured.9 jected writing automatically coverages A. A1 conform to any no requires that requirements 10-4-609 the basic “No- Section delivered, applicable. may Fault” be policy be issued law which renewed, RENTER UNINSURED coverage is WAIVES delivery, unless AND UNDERINSURED MOTOR- against uninsured motor- provided protect IST, SUPPLEMENTAL NO-FAULT explicitly statutory language The ad- ists. AND COVER- OTHER OPTIONAL of the rights and duties insurer dresses AGES. contract of under a and insured require- any a coverages ance. To into the B. If herein cannot be ex- read waived, agrees cluded or Renter ment that a car rental under automatically coverages such shall be must terms of requirements minimum reduced to the its would distort responsibili- applicable financial meaning. unambiguous clear and ty coverages law that such shall and applicable any other in- be excess to III. surance. Budget. Kent rented an automobile self-insured, Budget neither and of- following rele- contained provided motorist fered nor uninsured cover- provisions: vant self-insurer, Budget age to Kent. As a is 6) IF LIABILITY INSURANCE: provide only statutorily obligated to mandat- THERE VIOLATION OF ANY IS NO benefits, namely, liability and ed no-fault IN THE RESTRICTIONS OF USE required Auto benefits as under Colorado ABOVE, Renter and PARAGRAPH 10-4-716, Reparations Act. Accident shall, operating while Authorized Driver obligations sets forth Vehicle, cov- be pertinent part provides self-insurers and pro- erage in with the standard accordance as follows: Liability In- of Basie Automobile visions (1) Any person name in whose more Policy in accordance with the surance twenty-five regis- vehicles are than requirements qualified self-insurer may qualify as a self-insurer ob- tered protection coverage, for stead of such taining a of self-insurance issued certificate causing bodily injury against liability for by the director. death) damage (including property and (2) discretion, may, in his director following applicable cover- with one of the application person, of such issue a upon age limits: he when is sat- certificate of self-insurance by the fi- imposed state —coverage limits possessed and person is isfied such law where responsibility nancial possessed ability to be will continue place; takes OR transaction sec- pay direct benefits pay any judg- and all and to tion 10-4-706 $100,000 per- —coverage limit of each may obtained ments which $300,000 son, than for each but not more person. occurrence, damage property limits $25,000 if a up to for each occurrence Budget’s majority status discounts Renter, rental, possessed valid at time finds the relation- a self-insurer and instead Budget controlling. CorpRate Budget or Sears Checklist and Kent ship between credentials, view, Kent is the named Charge majority’s and such rental In the under the CorpRate is the insurer charged insured at a valid Kent and executed between Charge rate. Sears Checklist Travelers, rejection case, satis- The offer In the instant company, coverage properly fy requirements offered valid North-West, insured, named to its effective. which its exercised *21 1334 statutory in the absence of Maj. Consequently, insurer’s vehicles
Budget. op. at 1323. electing contrary. In re- majority concludes that rule, appeals rejecting majority the court of quired offer Kent the follow the coverage pursuant to sec- uninsured motorist stated: 10-4-609(1). majority The makes an
tion
in
Assembly’s failure to
The General
Budget’s
unconvincing attempt
downplay
of self-
any reference to a certificate
clude
my
which in
view
status as a self-insurer
dealing
any
the statutes
required to offer
dictates whether
is
coverage evi
with uninsured motorist
coverage to its customers.
uninsured motorist
require
intent not to
self-insur
dences its
coverage.
Indemnity
Travelers
ers to obtain uninsured
Passamano v.
(1986
(Colo.App.1991), the court of
Cum.
The issue whether self-insurer Servs., (quoting at cover 606 So.2d quired provide uninsured motorist Diversified 1007). em Lipof, Because the passengers of a self- 596 So.2d age to the driver Lipof compa already ployer in was not an insurance vehicle has been resolved insurer’s ny, employment Regional Trans the court concluded by our courts. In White v. (Colo. District, agreement did not fit within the definition portation 735 P.2d liability policy.” a “motor vehicle Conse App.1987), determined court 10-4-609(1) court held apply quently, Senices does not that section Diversified Budget’s agreement was not a appeals noted The court of self-insurers. Budget, insurance and as a self- majority who have ad of courts insurer, duty to offer or had no issue have held that a certificate dressed this motorist benefits to its renters. policy, of self-insurance is not holdings. thus, courts have reached similar are not to Other self-insurers Ill.App.3d Corp., Hertz coverage for the See Robinson v. obtain (1986) Ill.Dec. 489 N.E.2d passengers of a self- benefit of drivers and *22 auto rental com (holding that a self-insured provide pany EVANS, Angela Romero, not uninsured motorist need Lin Richard G. renters); Transport Lapp v. In coverage to Fowler, Brown, Ink da Paul Priscilla Co., Cal.Rptr. Cal.App.3d dem. Miller, Valley pen, The John Boulder (1985) (finding company that a car rental Re-2, City School District legally waived Denver, Boulder, County City vehicle); renter of and such waiver binds City City Aspen, and The Council Ky. Wright Taylor, &
Reeves v. Plaintiffs-Appellees, Aspen, (“[T]he (1949) 1007, 1010 owner of S.W.2d engaged not in the the leased automobiles is procures he certif insurance business when Roy ROMER, of the State Governor Department insurance from the
icate of self Colorado, Colorado, and the State of in lieu of a of Revenue Defendants-Appellants. merely he policy. The certificate shows that responsi financial produced has evidence of 94SA48, Nos. 94SA128. Tel. bility.”); States Tel. & Co. v. Mountain Casualty Surety 116 Ariz. Aetna Colorado, Supreme Court (finding (App.1977) P.2d 1123 En Banc. duty employer no self-insured had employee uninsured motorist 11, 1994. Oct. injured job notwithstanding Arizona’s on requirement statutory motor
ist be included insurance). motor vehicle
Although Budget’s as a self-insurer status why it
provides an additional reason was not protec-
required to offer uninsured customers, my analysis of
tion its
statutory provisions discussed su- equal
pra, governs with force situation
presented Accordingly, exemption here. 10-4-608, 4A
contained within section
(1994), excluding part applying to a automobiles,
policy insuring more than four Budget,
applies to these facts since self-insurer, possess more
certified had twenty-five pursuant to the
than automobiles
requirements in section 10-4-716. Based on coverage required exemption, Therefore, apply. does
section 10-4-609
for the same reasons that North-West was to offer uninsured motorist cov- required to
erage, also was not offer coverage pursuant to sec- I affirm
tion would therefore 10-4-609. entry summary judgment in
trial court’s Budget.
favor of say
I authorized to that Chief Justice am joins in this dissent.
ROVIRA