*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 787 P.2d 145 1990) (“strict” interpretative is no need to resort to compliance necessary rules to sat construction, statutory of isfy statutory since in that in recording requirement creat reasonably may presumed stance it ing statutory exemption be for tax lien on the General meant what it equipment) People clear leased Camp with v. 559; ly Griffin, bell, (Colo.1987)(“substantial” said. 775 P.2d at 742 State P.2d 302 Equalization compliance Board v. adequate satisfy American Air notice re of lines, Inc., 1033, (Colo.1989). quirement 773 P.2d 1040 Mandatory Disposi of Uniform “If, however, statutory language Act, prisoner’s is un tion of Detainers act of scope, certain as to its making request intended with the disposition to court for of result that the statutory charges, text lends itself to untried rather than to district at constructions, may torney statute, alternative required by then court as constituted appropriately pertinent look to compliance) substantial City and Powers v. history,” 559, Griffin, Boulder, 558, 775 P.2d at as well 54 Colo. 131 P. 395 of (substantial as circumstances under which the compliance adequate satisfy “[t]he enacted,” 2-4-203(1)(b), statute, statute was IB notice-of-claim and service of writ (1980), determining upon which alterna ten mayor, notice of accident rather tive construction is upon city required statute, accordance than clerk as legislative purpose. with the substantially complied purpose When faced of stat statutory ambiguity, ute). awith a court also 13-4-102(1)(b), (1987). appeal.

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, 586 P.2d at 25. These substantially failed to comply with the no- however, only public are not the interests requirements tice of section 24-10-109. As implicated by the requirements. notice noted, previously the court may consider claimants permitting injured believe that whether and what extent omission public aby injuries seek redress for caused or adversely error in the notice affected entity public serves interest. These also If, RTD in its defense the claim. on view, interests, in our would multiple public dismiss, rehearing the motion to the district by engrafting a standard of not be served court is satisfied that RTD its has carried 24-10-109(1), section strict burden, grant it should the motion to dis- such a construction achieve a nor would Otherwise, miss. the motion de- should be reasonable result.3 the con just and On court, nied. discretion, The district in its believe trary, we that these interests can may permit parties to offer new affida- by interpreting the best be accommodated vits or evidence in support respec- of their “compliance” in term the 1986 version of positions. tive 24-10-109(1) requiring nothing section than, than, nor more com court, We also note that the district pliance.” in denying Woodsmall’s mo Bennett’s tion to judgment, alter or amend the ruled compliance requires a claim- Substantial required ant, days of an within notice of claim be served public on the file injury, to written notice with the entity by registered per means mail or good to make a faith effort to sonal The district misappre service. court notice, include within the extent meaning hended the of this statutory provi so, is reasonably claimant able to each do sion. Subsection of section 24-10-109 item of information listed 24-10- in section does not state that service registered 109(2). determining whether a claimant personal service is but mandatory substantially complied has with the notice only that the of claim ef “shall be requirement, may a court consider whether mailing by fective upon registered ormail public entity and to extent what has *7 upon personal (3) service.” Subsection is adversely ability been affected in to its conclusively intended as a method of estab against any defend the claim reason of lishing service, that the effective date of or error in omission the notice. purposes 180-day requirement, is III. registered mailing. the date of the Blue v. Boss, (Colo.App.1989). 781 P.2d 128 Al the instant the district court though to by regular resort service rejected expressly a standard of substantial carry does not with it the presumption that resolving motion to RTD’s service has been effected on the date and, instead, applied dismiss a standard of mailing, nothing (3) prohibits subsection compliance. In ruling, strict so the district utilizing a claimant from this method un appropriate court erred. believe it of service in filing other methods a claim der these circumstances to remand case entity. public with the to court to the mo the district reconsider tion under standard of substantial com reversed, is judgment The and the case is pliance adopted. herein remanded to the district court for further dismiss, RTD filed the proceedings Because motion to consistent here- views burden, expressed. it on remand of this must bear adopt judgment to a rule 3. Were we of absolute circumstances in order to avoid a respect concerning to the notice ance with amount of hardly dismissal. Such inflated notices serve monetary damages, we would be permitting entity purpose public to monetary inviting claimants to inflate the value engage planning respect fiscal in realistic of their claims to the maximum amount liability any potential to aon claim. might recoverable under the favorable most KIRSHBAUM, J., Immunity specially concurs. Governmental Colorado -120, (Act), 10A C.R.S. Act 24-10-101 to §§ ROVIRA, C.J., dissents. (1988 Supp.), pro- to & 1990 was enacted VOLLACK, J., participate. does not providing remedy vide a balance between persons to specially injured by the state its KIRSHBAUM Justice political subdivisions, protecting those concurring. entities of unlim- the fiscal burden circumstances of I believe that under the 24-10-102, liability. ited 10A C.R.S. Woodsmall’s plaintiff-appellant this case (1988). In protect public order entities to Regional of claim to defendant unanticipated liability, exposure from to (RTD) satisfied the Transportation District always has required person the Act that a 24-10- applicable provisions of section by public injured entity provide notice to 109(1), in- The notice 10A C.R.S. period within certain after the the information re- formed RTD of all of 24-10-109, injury was discovered. 10A 24-10-109(2), 10A C.R.S. quired by section (1988). In the General Assem- (1988), the information was to the extent substantially pro- amended the Act to bly prior expiration known to Woodsmall protection to entities. The vide more period. requisite time Section also to provision Act’s notice amended 109(2)(e) requires statement of the “[a] stringent. requirements make its damages being monetary is amount amendment, this subsection 24-10- Prior to added). (emphasis Woodsmall’s requested” 109(1) provided: that she was unable to ascertain statement claiming Any person to have suffered an damages that would precise amount of shall file a written notice as ... appropri- requested, together with later be provided in this section within one hun- inability, in effect explanations for such ate eighty days after the date of the dred specif- requesting a that she was not states injury. Substantial time. at that ic amount provisions of compliance with the notice circumstance, prece- Woodsmall this section shall be a condition Under any brought under the language of the complied plain with the dent article, failure of provisions of this right her to re- preserving statute while be a compliance shall com- substantial damage appropriate amount quest an plete such action. of the statu- future date. This view some defense early encourages notifica- tory requirement added.) (Emphasis being a defendant that tion to amendments, result of the 1986 sub- As a circumstances rather than some asserted 24-10-109(1), 10A C.R.S. delayed because of requiring notification provides: now specify pre- inability plaintiff’s claiming have suffered Any person *8 being damages that “is” amount of cise injury by public entity a is filed. at the time the notice asserted file a employee thereof ... shall written provided in this section within notice as reasons, foregoing agree I that For the eighty days one hundred after the date dismissing Woods- erred in the trial court regardless injury, of the claim. man’s person the knew all of of whether then dissenting: Chief Justice ROVIRA the elements of a claim or of cause of injury. Compliance such with action for accept I the state- respectfully I dissent. provisions the of this section shall be a majority facts set out the ment of the any jurisdictional prerequisite to and, accordingly, find no need to opinion brought provisions the this arti- under its disagree I however with restate them. cle, compliance shall and failure for- compli- “absolute underlying theme that any ever bar such action. compliance” synon- are ance” and “strict added.) (Emphasis applying erred in ymous and the trial court dismiss, stringent granting a standard more than “substan- In RTD’s motion to the language of the compliance.” trial court considered the tial

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-