*1 payable under uninsured amount motorist
coverage by any personal benefits Hughie Carol WOODSMALL and paid by the invalid because Bennett, insurer was Plaintiffs-Appellants, provide provision allowed an insurer v. statutorily mandated than the minimum REGIONAL TRANSPORTATION DIS coverage. Id. 197 uninsured Colo. motorist TRICT, a subdivision of the State held, also at 1043. We at 594 P.2d Colorado, Defendant-Appellee. Exchange, Insurance Morgan v. Farmers No. 89SA195. policy providing that an unin term one which not have vehicle was did sured Colorado, Supreme Court of applicable liability policy in at the effect En Banc. deny time the accident was ineffective Oct. 1990. insured uninsured motorist benefits to the As Modified Rehearing Denial of tortfeasor, despite subsequent insolven Nov. cy of the insurer. 182 Colo. at P.2d 905. The invalidated
Kral, Newton, directly Morgan limited recovery
the insured’s of uninsured motor benefits
ist where
intended that uninsured motorist benefits the full contem
be recoverable to extent Kral, Newton,
plated by section 10-4-609. Morgan did not involve circumstances seeking
where insured was uninsured pursuant
motorist benefits to the insured’s policy liability coverage
automobile when policy. excluded
was terms of
IV.
Summary judgment proper only where genuine
there is no issue of material fact the moving party judg- is entitled to 56(c). as a
ment law. C.R.C.P. parties stipulated
In this properly
material facts and trial court policy
held that the insurance not am- pub-
biguous and that it did not violate the policy Accordingly,
lic of this state.
judgment of the district court is affirmed. *2 (RTD) to their failure to com-
District due section ply provisions of 24-10-109 of the Colorado Governmental Act, 10A Immunity 24-10-101 to §§ (1988 dismissing Supp.). In & when sub- the district court ruled section 24-10-109 was amend- section of “compliance” with ed in 1986 to state that provisions of the Governmental Immunity pre- jurisdictional Act shall abe requisite against any brought action public entity, Assembly there- the General by stringent impose intended to a more requirement than preexisting “substan- compliance” tial standard and Woods- satisfy mall and Bennett failed to the more judg- stringent standard. We reverse the remand the case for ment of dismissal and because, view, in our proceedings further stringent imposed court a more the district legislatively than was intended standard amendment to section 24-10-109. the 1986 I.
The 1986 amendment to sec- 24-10-109(1) is central to the resolu- tion Prior to tion of this case. 24-10-109(1), 10 C.R.S. stated: claiming Any person to have suffered by an injury by an or of employee thereof while the course employment shall file a written no- such one provided tice as this section within eighty days after the date of the hundred discovery injury. Substantial provisions with the notice precedent shall a condition this section be provi- any under the action article, of sub- sions of this and failure P.C., Bucholtz, Mary Ewing, Ew- Bull & complete stantial shall be a Lampert, Brian ing, Law of Brian J. Office any defense action. such Denver, plaintiffs-appel- for Lampert, J. (Emphasis added). lants. section 24-10-109 to amended Ford, defendant-appel- for Gilman Carol read as follows: lee. Any claiming to person have suffered public entity injury by or QUINN Opinion Justice delivered employee while in the course of thereof of the Court. no- employment such shall file a written provided tice in this section within one plaintiff-appellants, Carol Woodsmall The Bennett, Hughie appeal eighty days the district hundred after the date of the injury, personal injury regardless their court’s dismissal of Regional person Transportation claims whether the then knew all elements a cause telephone nett’s call prepared by injury. Compliance such employee. RTD report included a de- time, with the of this section scription place, shall and circum- a jurisdictional prerequisite collision, stances of the name of the *3 driver, the under of RTD and the bus fact that Woods- article, of hospital this and failure to the mall went after the collision. any such shall forever bar action. then assigned The claim was to a RTD Hainesworth, claims Armonde adjuster, added). (Emphasis 166, 9, Ch. sec. investigation. 24-10-109(1), 873, 1986 Colo.Sess.Laws (presently 24-10-109(1), at codified days Over next the several Woodsmall (1988)). 24-10-109(2), 10A C.R.S. Section persistent the developed pain in areas of C.R.S. part 10A which was experienced her neck shoulder and and left original and Immunity Governmental Act temporal lobe headaches. was She treated amendment, not the by was affected symptoms medication, for these ultra- requires that the written notice pub- to the sound, shock, osteopathic electric and ma- entity following: lic contain the nipulative therapy. When Woodsmall’s (a) The symptoms worsened, name and address of claim- progressively the she was ant and the his physicians, including name address of referred several to attorney, any; if specialist temporal in joint mandibular (TMJ) syndrome. (b) A concise statement the factual claim, date, including basis the 18, 1987, Hainesworth, On March time, act, place, and circumstances of the adjuster, RTD claims forwarded to the at- omission, of; complained or event torney for both Woodsmall and Bennett a (c) The any public name and address of medical release authorization for Woods- known; employee involved, if signature. attorney rejected mall’s (d) A concise statement the nature releases, wrote adjuster April but on the extent claimed to 1, 1987, prepare and offered to appropriate suffered; have been forms, authorization and then stated in his (e) A statement the amount letter: of mone-
tary damages
being requested.
is
have,
time,
point
at
this
in
ordered
copies of Ms. Woodsmall’s medical
(3) of
statute
if
Subsection
states that
to date.
records
Whatever
information
against
public
is
other
regarding
we receive
her medical condi-
state,
than the
“the
shall be filed
provided
you.
appears
tion
be
It
will
body
governing
public
enti-
in
point
time
Ms.
Woods-
ty
attorney
representing
or
quite
injuries
mall’s
are
substantial. She
entity” and that
be
notice shall
“[s]uch
undergoing
treatment with Dr. Ben-
mailing
upon
by registered
effective
Mechanic,
neurologist
nett
in the Den-
24-10-109(3),
upon personal
or
service.” §
area,
ver
and he has referred her to a
10A C.R.S.
specialist
temporary
in
mendibular [sic]
January
Bennett
On
was driv-
joint syndrome.
get
As soon as I
infor-
wife,
ing a
motor
which his
vehicle
regarding
mation
inju-
the extent of her
Woodsmall, and their two minor children
ries,
certainly
provided
you.
it will
riding
were
Ben-
passengers.
as
While
very
We would
much like to resolve this
light,
nett’s vehicle
for a red
stopped
was
litigation.
short
Once Ms.
which,
turn,
RTD bus struck
a van
collid-
Woodsmall
reaches maximum medical
the rear
Af-
ed with
of Bennett’s vehicle.
improvement, able
we are
to deter-
ter the accident
Bennett took Woodsmall
complete
injuries,
mine
extent
her
hospital,
diagnosed
where she
as
we will be able to discuss settlement with
suffering
backsprain
from a
re-
and then
you.
without
leased
further treatment. Bennett
15, 1987,
reported
telephone
accident
May
to RTD
On
Woodsmall’s and Ben-
following
A
day.
report
attorney
of Ben-
nett’s
mailed a document to RTD
January
adjuster
to the claims
Pursuant
to warded
“Notice of Claim
entitled
describing
24-10-109,”
copy
letter
along
with a
RTD’s
with a detailed
stated:
injuries.
The document
It was
legal counsel.
the extent of Woodsmall’s
the at-
time,
January
at this
Transportation District
Regional
TO:
adjuster of
RTD claims
torney notified the
1600 Blake Street
loss of consortium.
Bennett’s claim for
Denver,
80202-1300
Colorado
failed,
negotiations
After
settlement
Armonde
Mr.
Haines-
Attention:
complaint
filed a
and Bennett
Woodsmall
worth
19, 1988. Woodsmall
April
RTD on
Injuries
Sustained
Personal
Re:
permanent
a result of
claimed
Hughie
Ben-
Woodsmall
Carol
*4
accident,
injuries
and Ben-
in the
sustained
nett, Claimants
consor-
nett’s claim
limited to loss of
Osceola
9002
tium. RTD
on the
filed a motion to dismiss
Westminster,
Colorado
RTD
basis
the notice of claim sent to
IT MAY CONCERN:
WHOM
TO
15, 1987,
May
personal
did not
the
list
hereby provide
The above Claimants
by Woodsmall,
injuries sustained
nor did it
24-10-
with C.R.S.
notice in accordance
one
specifically describe Bennett’s claim as
arising
of a
out
109 of their
consortium,
thereby
and
de-
for loss
occurring on or
accident
bus/automobile
jurisdic-
subject
prived the court
14, 1987, at the intersec-
January
about
complaint. The district court
tion over the
Streets, within
of Larimer and 15th
tion
dismiss, ruling that
granted the motion to
Denver,
County of
State of
City and
the
24-10-
1986 amendment
to section
Colorado.
109(1)
to create a more strin-
was intended
knowledge
the best of Claimants’
To
previously
than
gent standard of notice
belief,
rear-ended as a
they were
and
and that the notice of claim sent to
existed
RTD
negligence of an
bus.
result of the
comply
applicable
RTD did not
with
sitting
in a vehicle
The
were
Claimants
statutory
Woodsmall and Ben-
standard.1
forced a
light
red
and the bus
still at a
amend the
nett filed a motion to alter or
ve-
rear end of Claimants’
van into the
arguing that the court erred
judgment,
hicle.
or strict
imposing a standard of absolute
seeking
are
Claimants
compliance and that such a construction
Damages will be
injuries.
physical
equal pro-
and
process
due
of law
violated
determined
sought in an amount
the laws. The district court de-
tection of
on-going
and
date. Treatment
a later
motion, ruling
part
that sec-
their
nied
point in time to
impossible at this
it is
required that
tion
an amount.
determine
by registered of claim must be made
2, 1987,
at-
Woodsmall’s
September
On
and
personal service and
Woodsmall
reports
medical
torney forwarded
comply
failed to
with the notice
Bennett
adjuster,
RTD claims
medical bills to the
Immuni-
requirements of
Governmental
treatment
to Woods-
again repeating that
ty Act.
that a current
“on-going” and
mall was
thereafter
filed
and Bennett
Woodsmall
Approxi-
still unavailable.
prognosis was
appeal
claim that the district court
this
attor-
later Woodsmall’s
mately one month
construing
version of
erred
itemized
adjuster an
ney sent to the claims
imposing a standard
section 24-10-109 as
bills incurred
of all medical
statement
respect
to no-
of absolute
in the letter that he
and stated
Woodsmall
standard violates due
tice and that such
past dental
requested
had
Woodsmall’s
process
equal protection
of law and
were later
for-
These records
records.
and ex-
even if it
ment
be informed
the nature
also ruled that
The district court
injuries
days
all the written communications
within
after the
"were to view
tent of the
parties
to the no-
as amendments
injury.
light
between
date of the
May
information contained
tice" of
disposition
need not address
our
of this
we
would not sat-
in those written communications
ruling.
aspect
of the district court's
govern-
isfy
statutory requirement
that the
agree
laws. We
may
with Woodsmall’s and
consequences
par
consider
of a
“[t]he
Bennett’s claim that
district
court erred
ticular
2-4-203(l)(e),
construction.”
IB
§
construing
24-10-109 to
Finally,
mandate
pre
C.R.S.
while we must
absolute or strict
the no-
sume that a
interest is favored over
requirements.
tice
resolution
any private interest,
2-4-201(l)(e),
Our
IB
it
appeal
(1980),
on that
renders
unnecessary
basis
we also must be aware that
to address Woodsmall’s
legislature
just
Bennett’s con-
intends
and reason
“[a]
result,”
2-4-201(l)(c),
stitutional claims.2
able
IB C.R.S.
accordingly
and must
consider both
II.
presumptions in a manner consistent with
legislative
objective.
discernible
A.
statutory
Basic rules of
construc
B.
guide
analysis
tion must
our
of the nature
and effect of the 1986
amend
“Compliance” involves the act of
24-10-109(1).
ment to section
A
conforming
court’s
to formal or
require
official
primary
statutory
norms,
task in
construction is to ments or
Webster’s
In
Third New
*5
give
legislative
ascertain and
effect to the
(3rd
1961);
ternational Dictionary 465
ed.
purpose underlying
statutory
a
enactment.
see also Black’s
(5th
Law Dictionary
ed.
E.g.,
1979),
Meyer,
Colorado Common Cause v.
modification,
and without further
153,
(Colo.1988);
758 P.2d
160
Kern v. Ge
connotes an
degree.
element of
Compli
bhardt,
1340, 1344(Colo.1987).
ance,
746 P.2d
example, may
be absolute or
ascertaining
legislative purpose,
strict,
hand,
we
on the one
or somewhat less
statutory language
look first
em
substantial,
than absolute but nonetheless
ployed by the
Assembly
give
on the other.
In determining whether a
commonly accepted
words their
particular
and under
statutory requirement has been
meaning.
satisfied,
stood
E.g.,
v.
De
imposed
S.W.
we have
a degree of
Griffin
Co., Inc.,
555,
vanney and
compliance
775 P.2d
559
objective
consistent with the
(Colo.1989);
Guenther,
People
sought
v.
740
by
P.2d
to be achieved
legislation
971, 975 (Colo.1987).
statutory
When the
under
Compare
consideration.
Charnes v.
language is
unambiguous,
Inc.,
(Colo.
clear and
there
Leasing,
Norwest
2. Because of Woodsmall’s and Bennett's consti
6A C.R.S.
claims,
accepted jurisdiction
tutional
we
over
stated,
agreed
24-
with this observation and
requirements of section
The notice
permit public
enti
“We do
designed to
leave the court some discretion
10-109 are
investigation of the
prompt
using
letting
the word
ty
‘compliance’
to conduct
dangerous con
thereby remedy
means, and,
claim and
decide what
on the
court
dition,
arrange
fiscal
adequate
hand, taking
to make
out the word ‘substan-
other
liability, and to
any potential
what,
ments to meet
least,
couple
removes
in a
tial’
”
E.g.,
the claim.
Uber
prepare a defense to
cases,
has been
apparently
loophole....
Colorado,
713 P.2d
University
oi v.
Recording of House
Affairs
State
Tape
Regents
Uni
(Colo.1986); Fritz v.
Hearing on House Bill
Committee
335, 338-39,
Colorado, 196 Colo.
versity
Session,
Assembly, Second
55th General
the fact that
Given
P.2d
legislative colloquy
February
This
necessary to con
degree
compliance
sponsor
clearly
indicates that
may well
requirement
statutory
form to a
intend to create a
1986 amendment did not
objective sought
to be
depend upon
compliance
literal
standard of absolute or
specific legislation under
by the
achieved
rather in-
requirement,
but
consideration,
say that the term
we cannot
degree
tended a
version of section
“compliance” in the 1986
minimal
considerably more than
but
unambiguous
is so clear and
only
fair character-
than absolute.
only.
to one construction
to lend itself
degree
such a
ization of
appropriate
we
these circumstances
Under
compliance.”
legislative histo
ly may resort to available
consequences
must mindful of the
statutory con
interpretative rules of
ry and
impose
that would
a stan-
of a construction
meaning consist
arriving at a
struction in
compliance on a claimant
dard of absolute
the 1986 amend
purpose of
ent with the
*6
injured by public entity.
a
A
has been
who
24-10-109(1).
ment to section
require
compliance would
rule of absolute
during
legisla-
made
The statements
claimant,
a
the dismissal of a claim when
amend-
hearing on the 1986
committee
tive
discovery
days after the
within 180
24-10-109(1) provide us
ment to section
satisfy
good
faith effort to
injury, makes
the circum-
insight into
considerable
inadvertently
requirements
the notice
but
underlying the amendment
stances
detail,
an error
a minor
or makes
omits
by the
sought
to be achieved
objective
detail, notwithstand-
respect to such
the bill was before the
amendment. When
that
the omission or error
ing the fact
Committee, Represent-
Affairs
House State
public entity in the
prejudice the
cannot
the word
Skaggs moved to reinstate
ative
also,
least. So
a rule of absolute
response
In
to
into the bill.
“substantial”
mandate the dismissal of
ance would
motion,
Berry, who
Representative
public
serves the
claim when the claimant
bill,
that
the word
stated
sponsored the
timely
notice of the
entity with a
written
in the bill
had been deleted
“substantial”
specify
is unable to
the exact
claim but
interpreted
had
“certain cases
because
monetary
and the
val-
nature of the
allow suit to be
loosely, so as to
word too
beyond
the claim
of events
ue of
because
should have been
the notice
where
control,
as, for exam-
the claimant’s
such
Representative
fatally defective.” When
ple, the tentative nature of the claimant’s
that the deletion
Skaggs
a concern
voiced
unavailability of
medical condition and the
would indicate
“substantial”
word
inju-
diagnosis of the claimant’s
a definitive
compliance, a
require
intent
“absolute”
to
on
ry. Nothing
in the
comments
League
Municipal
representative of the
suggests
1986 amendment
that such deletion
to the committee
stated
a formal-
intended such
for the court
would “still leave room
requirement.
istic construction of the notice
determine whether substantial
sure,
requirements of
To be
prevent the
had occurred ...
would
[and]
public
to enhance a
section 24-10-109 serve
seizing
‘substan-
court from
on the word
remedy dangerous
con-
entity’s ability to
all manner of defective notice
tial’
allow
Berry
plan for and defend
Representative
dition and to
to be considered.”
any potential
liability
E.g.,
on a claim.
establishing by preponderance
Uberoi,
899; Fritz,
P.2d at
Colo.
evidence that Woodsmall and Bennett
338-39,
interests,
71 1986 both after the quire Act before and amend- no than compli “substantial ments and stated: See, e.g., ance.” Charnes v. Norwest Leas 145, (Colo.1990)(“There merely ing, states
Plaintiffs notice that 787 P.2d 148 seeking compensation for claimants are a presumption is that when a statute is “physical injuries” and that the amount change amended there is an intent to the aat later will be determined law.”) Hale, (quoting People 654 v. P.2d date. would Perhaps this notice letter (Colo.1982)); v. LaDuke CF & I have been sufficient old C.G. under the Steel Corp., (Colo.1990) 785 P.2d I.A. where the standard was (same); Contractors, Inc., Allee v. compliance” provision. the P.2d (Colo.1989)(where statutory However, the amend 1987 [sic] scheme creating rights substantial is ments, legislature obviously was amended in significant particulars par making stringent standard more tially repealed, “inescapable” conclusion is Act, compliance one. Under the current legislature that change pre-ex- intended to jurisdictional prerequisite. light is a In isting state of law). language, of this it does seem majority misreads the his- deprived subject juris Court is tory and concludes by deleting dispute diction to resolve the between “substantial” the sponsor really word in- parties. these The effect a nonclaim degree tended that statute is to bar substantive claims. should be “substantial.” At 68. Company Barnhill v. Public Service my view, In legislature if the had been 1982) (Colo.App. supra. P.2d 716 [649 ] satisfied with a standard of substantial Contrary expressed to the view compliance it would not have deleted “sub- majority opinion, see at I believe that not compli- stantial” would have made legislative colloquy in the set out ma- jurisdic- ance with the notice jority opinion supports reasoning prerequisite compli- tional and failure of that, by deleting trial court term “sub- action. ance bar to by making provi- stantial” and jurisdictional prerequisite, legis- Accordingly, respectfully sion I dissent. impose stringent lature intended to a more previous-
standard of than was short,
ly required. I believe that provision properly
ance with the notice greater
tested a standard than “sub- compliance.”
stantial To hold otherwise is suggest legislature engag- that the It
ing futility. an exercise is clear sponsor the 1986 intent of The PEOPLE of the State of deleting amendment in the word “substan- Colorado, Complainant, had tial” was “certain cases inter- because v. preted loosely, the word too so as to allow DOHE, Virgil Attorney-Respondent. D. suit to be where the notice should fatally have been defective.” At 68. No. 90SA288. *9 Moreover, legisla- notwithstanding the Colorado, Supreme Court of
ture’s in 1986 to delete “substan- decision En Banc. from phrase tial” ance,” majority nonetheless concludes Oct. “multiple public inter- that consideration than, requires nor “nothing ests” ” than, compliance.’ At 69. I ‘substantial that, agree legisla-
cannot face of “substantial,” deletion
ture’s subsection still may be construed to re-