2021 Colorado Code
Title 10 - Insurance
Article 4 - Property and Casualty Insurance
Part 6 - Automobile Insurance Policy - Regulations
§ 10-4-609. Insurance Protection Against Uninsured Motorists - Applicability

1. 1. No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance, or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle licensed for highway use in this state unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in section 42-7-103 (2), C.R.S., under provisions approved by the commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; except that the named insured may reject such coverage in writing.
   2. This subsection (1) shall not apply to motor vehicle rental agreements or motor vehicle rental companies.
   3. The coverage described in paragraph (a) of this subsection (1) shall be in addition to any legal liability coverage and shall cover the difference, if any, between the amount of the limits of any legal liability coverage and the amount of the damages sustained, excluding exemplary damages, up to the maximum amount of the coverage obtained pursuant to this section. A single policy or endorsement for uninsured or underinsured motor vehicle coverage issued for a single premium covering multiple vehicles may be limited to applying once per accident. The amount of the coverage available pursuant to this section shall not be reduced by a setoff from any other coverage, including, but not limited to, legal liability insurance, medical payments coverage, health insurance, or other uninsured or underinsured motor vehicle insurance.

2. Before the policy is issued or renewed, the insurer shall offer the named insured the right to obtain uninsured motorist coverage in an amount equal to the insured's bodily injury liability limits, but in no event shall the insurer be required to offer limits higher than the insured's bodily injury liability limits.
3. Notwithstanding the provisions of subsection (2) of this section, after selection of limits by the insured or the exercise of the option not to purchase the coverages described in this section, no insurer nor any affiliated insurer shall be required to notify any policyholder in any renewal or replacement policy, as to the availability of such coverage or optional limits. However, the insured may, subject to the limitations expressed in this section, make a written request for additional coverage or coverage more extensive than that provided on a prior policy.
4. Uninsured motorist coverage shall include coverage for damage for bodily injury or death that an insured is legally entitled to collect from the owner or driver of an underinsured motor vehicle. An underinsured motor vehicle is a land motor vehicle, the ownership, maintenance, or use of which is insured or bonded for bodily injury or death at the time of the accident.
5. (Deleted by amendment,L. 2007, p. 1921, § 2, effective January 1, 2008.)
6. An alleged tortfeasor shall be deemed to be uninsured solely for the purpose of allowing the insured party to receive payment under uninsured motorist coverage, regardless of whether the alleged tortfeasor was actually insured, if:
   1. The alleged tortfeasor cannot be located for service of process after a reasonable attempt to serve the alleged tortfeasor; and
   2. 1. Service of process on the insurance carrier as authorized by section 42-7-414 (3), C.R.S., is determined by a court to be insufficient or ineffective after reasonable effort has failed; or (b) (I) Service of process on the insurance carrier as authorized by section 42-7-414 (3), C.R.S., is determined by a court to be insufficient or ineffective after reasonable effort has failed; or
      2. (A) The report of a law enforcement agency investigating the motor vehicle accident fails to disclose the insurance company covering the alleged tortfeasor's motor vehicle; and

7. Nothing in subsection (6) of this section voids the alleged tortfeasor's policy if the alleged tortfeasor was actually insured.

History. Source: L. 79: Entire section added, p. 377, § 11, effective July 1. L. 83: Entire section R&RE, p. 454, § 1, effective November 5. L. 92: (2) amended, p. 1759, § 4, effective June 5. L. 95: (1) amended, p. 143, § 4, effective April 7. L. 2007: (1)(c) added and (2), (4), and (5) amended, p. 1921, §§ 1, 2, effective January 1, 2008. L. 2010: (6) and (7) added,(HB 10-1164), ch. 196, p. 845, § 1, effective January 1, 2011.

Law reviews. For article “‘Underinsurance' Coverage in Automobile Accidents”, see 15 Colo. Law. 417 (1986). For article, “The ‘Catch 22' of Underinsured Motorist Settlements”, see 17 Colo. Law. 49 (1988). For article, “Recent Developments in the Law of Underinsured Motorist Coverage”, see 22 Colo. Law. 2273 (1993). For article, “When an Automobile Policy Coverage Exclusion or Limitation is Valid”, see 25 Colo. Law. 103 (Aug. 1996). For article, “Bringing the Uninsured and Underinsured Motorist Case”, see 26 Colo. Law. 111 (Nov. 1997). For article, “New Uninsured Motorist Legislation Changes the Rules”, see 37 Colo. Law. 67 (Sept. 2008).

Annotator's note. The following annotations include cases decided under former provisions similar to this section.

Trial court is proper forum to resolve claim for uninsured motorist benefits and to resolve independent claim of any workers' compensation claim. Failure of plaintiff to exhaust administrative remedies regarding workers' compensation is not relevant to the issue of uninsured motorist coverage. Benson v. Colo. Comp. Ins. Auth., 870 P.2d 624 (Colo. App. 1994).

Protection from loss caused by uninsured motorists is authorized. Nationwide Mut. Ins. Co. v. Hillyer, 32 Colo. App. 163, 509 P.2d 810 (1973).

Section compels companies to extend uninsured motorist coverage. This section compels insurance companies writing motor vehicle liability policies to extend uninsured motorist coverage unless the insured shall reject such coverage. Morgan v. Farmers Ins. Exch., 182 Colo. 201 , 511 P.2d 902 (1973); Nationwide Mut. Fire Ins. Co. v. Newton, 40 Colo. App. 425, 579 P.2d 1178 (1978), rev'd on other grounds, 197 Colo. 462 , 594 P.2d 1042 (1979).

This section requires that insurance companies issuing policies on motor vehicles registered or principally garaged in this state offer uninsured motorist coverage. Alliance Mut. Cas. Co. v. Duerson, 184 Colo. 117 , 518 P.2d 1177 (1974).

However, this section does not mandate that a driver carry uninsured motorist coverage. Individual insureds are free to decline such coverage. Cruz v. Farmers Ins. Exch., 12 P.3d 307 (Colo. App. 2000).

Insurance policy exclusion of resident relatives who own a vehicle from uninsured/underinsured motorist (UM/UIM) coverage violates Colorado public policy. Pacheco v. Shelter Mut. Ins. Co., 583 F.3d 735 (10th Cir. 2009) (decided under law in effect in 2000).

Where former § 10-4-703 (6) defined “insured” to include “relatives of the named insured who reside in the same household as the named insured”, a policy that attempted to exclude from UM/UIM coverage vehicle-owning relatives meeting that definition is void and unenforceable. Pacheco v. Shelter Mut. Ins. Co., 583 F.3d 735 (10th Cir. 2009) (decided under law in effect in 2000).

The legislature, by enacting this section, did not abrogate the common law agency principles of implied actual authority and apparent authority, and thus they remain in effect in the context of UM/UIM coverage rejections. State Farm Mut. Auto. Ins. Co. v. Johnson, 2017 CO 68, 396 P.3d 651.

An agent has apparent authority to affect a principal's relations with a third party when the third party reasonably believes, based on the principal's manifestations, that the agent has authority to act on behalf of the principal. Apparent authority thus flows only from the acts and conduct of the principal. State Farm Mut. Auto. Ins. Co. v. Johnson, 2017 CO 68, 396 P.3d 651.

In comparison, an agent acts with actual authority when, at the time of taking action that has legal consequences for the principal, the agent reasonably believes, in accordance with the principal's manifestations to the agent, that the principal wishes the agent so to act. Actual authority thus incorporates concepts of both express and implied authority. State Farm Mut. Auto. Ins. Co. v. Johnson, 2017 CO 68, 396 P.3d 651.

Express authority exists when the principal directly states that the agent may perform a particular act on the principal's behalf. State Farm Mut. Auto. Ins. Co. v. Johnson, 2017 CO 68, 396 P.3d 651.

Implied authority embraces the authority to perform acts that are incidental to or are necessary, usual, and proper to accomplish or perform the main authority expressly delegated to the agent. State Farm Mut. Auto. Ins. Co. v. Johnson, 2017 CO 68, 396 P.3d 651.

Nothing precludes an agent from exercising either apparent or implied authority to reject UM/UIM coverage on behalf of a principal. State Farm Mut. Auto. Ins. Co. v. Johnson, 2017 CO 68, 396 P.3d 651.

The UM/UIM statute does not require each named insured to reject such coverage. One named insured's rejection is binding on all. State Farm Mut. Auto. Ins. Co. v. Johnson, 2017 CO 68, 396 P.3d 651.

Automobile insurance policy cannot narrow the class of individuals who were required to be covered under the former no fault act. If a person seeking coverage was one for whom coverage was required by statute, an insurer cannot limit its statutory obligation by a contractual provision contrary to the requirements of the no fault act. Pacheco v. Shelter Mut. Ins. Co., 583 F.3d 735 (10th Cir. 2009) (decided under law in effect in 2000).

Because UM/UIM coverage must be offered to a class coextensive with the class covered under the policy's liability provision, the exclusion of resident relatives owning vehicles is also void and unenforceable for purposes of UM/UIM coverage. The appropriate remedy is to consider the offending provision void and provide coverage to the limits of the policy. Pacheco v. Shelter Mut. Ins. Co., 583 F.3d 735 (10th Cir. 2009) (decided under law in effect in 2000).

This section incorporates the minimum limits for bodily injury or death as set forth in the financial responsibility act. Nationwide Mut. Ins. Co. v. Hillyer, 32 Colo. App. 163, 509 P.2d 810 (1973).

If uninsured motorist coverage is not rejected by the insured, the minimum amount of coverage required is as provided in the motor vehicle financial responsibility law. Alliance Mut. Cas. Co. v. Duerson, 184 Colo. 117 , 518 P.2d 1177 (1974).

Limitation on recovery allowable. As long as a policy assures payment of the statutory minimum, a limitation on recovery is not repugnant to the motor vehicle financial responsibility law. Arguello v. State Farm Mut. Auto. Ins. Co., 42 Colo. App. 372, 599 P.2d 266 (1979).

Coverage satisfying legislative intent. The legislative intent is satisfied by coverage which assures that one injured by an uninsured motorist will be compensated at least to the same extent as one injured by a motorist who is insured in compliance with the motor vehicle financial responsibility law. Alliance Mut. Cas. Co. v. Duerson, 184 Colo. 117 , 518 P.2d 1177 (1974).

Section does not apply to umbrella policies. An umbrella liability insurance policy that includes excess liability coverage for the ownership or operation of motor vehicles is not an “automobile liability or motor vehicle liability policy” under the plain language of the section; therefore, insurer is not subject to the requirement to offer UM/UIM coverage as part of an umbrella policy. Apodaca v. Allstate Ins. Co., 232 P.3d 253 (Colo. App. 2009), aff'd, 255 P.3d 1099 (Colo. 2011).

There is a clear statutory basis for the use of a per occurrence limit on liability when two or more persons are injured. Subsection (2) sets both per person and per accident limits for the amount of uninsured motorist coverage an insurer is required to offer an insured. Application of per occurrence limit coupled with an anti-stacking provision is not inconsistent with the purpose of Colorado's underinsured motorist statute -- to place the insured in the same position as if the underinsured had liability limits in an amount equal to an insured's coverage. Shean v. Farmers Ins. Exch., 934 P.2d 835 (Colo. App. 1996).

Attorney fees and expenses are not recoverable pursuant to this section. Thurman v. State Farm Mut. Auto. Ins. Co., 942 P.2d 1327 (Colo. App. 1997); Loar v. State Farm Mut. Auto. Ins. Co., 143 P.3d 1083 (Colo. App. 2006).

An insurance policy provision violates this section only if it directly limits the benefits to which the insured is entitled. Terranova v. State Farm Mut. Auto. Ins. Co., 800 P.2d 58 (Colo. 1990); Peterman v. State Farm Mut. Auto. Ins. Co., 948 P.2d 63 (Colo. App. 1997), rev'd on other grounds, 961 P.2d 487 (Colo. 1998).

And the mere act of specifying a procedure for determining the insured's right to recover UM benefits from the insurer does not directly limit such benefits, at least so long as the procedure specified is not unduly burdensome. Peterman v. State Farm Mut. Auto. Ins. Co., 948 P.2d 63 (Colo. App. 1997), rev'd on other grounds, 961 P.2d 487 (Colo. 1998).

The phrase “bodily injury, sickness, or disease” in subsection (1)(a) does not include emotional distress absent a physical manifestation of the injury. Hence, this section does not require an insurer to provide benefits for purely emotional harm. Williams v. State Farm Mut. Auto. Ins. Co., 195 P.3d 1158 (Colo. App. 2008).

Where a motor vehicle is being used in a manner reasonably foreseeable at the time the parties contracted for insurance and the “use” of the vehicle is inextricably linked to a plaintiff's injury, plaintiff is entitled to recover under the policy. State Farm Mut. Auto. Ins. Co. v. Kastner, 77 P.3d 1256 (Colo. 2003).

Limiting underinsured benefits to bodily injuries or deaths sustained by a person insured by the policy is not void as against public policy. Jones v. AIU Ins. Co., 51 P.3d 1044 (Colo. App. 2001).

The key to the application of this section is the inability of the innocent injured party to recover for a loss caused by another's negligence, whether that person is known or unknown. Farmers Ins. Exch. v. McDermott, 34 Colo. App. 305, 527 P.2d 918 (1974).

Section requires coverage for hit-and-run drivers. While the language of this section focuses on the problems of an uninsured motor vehicle, its applicability is not limited to those situations in which the identity of the negligent party is known. Furthermore, the declaration of public policy expresses the general assembly's prime concern as the need to compensate the innocent driver for injuries received at the hands of one from whom damages cannot be recovered. Thus, this section does require coverage for hit-and-run drivers. Farmers Ins. Exch. v. McDermott, 34 Colo. App. 305, 527 P.2d 918 (1974).

Section requires coverage for accidents involving drivers having governmental immunity. The phrase “legally entitled to recover damages”, as used in this section, means that the insured must be able to establish that the fault of the uninsured motorist gave rise to damages and the extent of those damages. But where recovery from the driver is precluded solely because of the Colorado Governmental Immunity Act, denial of coverage would contravene legislative intent. Borjas v. State Farm Mut. Auto. Ins. Co., 33 P.3d 1265 (Colo. App. 2001).

Where recovery from the driver is precluded solely because of the Worker's Compensation Act of Colorado, denial of coverage would contravene legislative intent. Am. Family Mut. Ins. v. Ashour, , 410 P.3d 753 .

A “named insured” under subsection (1)(a) is the person or entity listed as the named insured on the policy or the purchaser of the policy. Maxwell v. James River Ins. Co., 401 F. Supp. 3d 1183 (D. Colo. 2019 ).

Based on that definition, automobile insurers have no duty to provide notice of the availability of UM/UIM to additional insureds that are covered by the policy. Maxwell v. James River Ins. Co., 401 F. Supp. 3d 1183 (D. Colo. 2019 ).

Insurance company discharged its duties under subsection (1)(a) by obtaining a written waiver of UM/UIM coverage from the named insured of the policy. Maxwell v. James River Ins. Co., 401 F. Supp. 3d 1183 (D. Colo. 2019 ).

Provision requiring physical contact held invalid. Uninsured motorist provision of an insurance policy, insofar as it required a physical contact between the insured vehicle and the “hit-and-run” vehicle, was invalid as an impermissible restriction upon the coverage which is required by this section. The physical contact rule is inconsistent with the public policy of the state. Farmers Ins. Exch. v. McDermott, 34 Colo. App. 305, 527 P.2d 918 (1974).

Gunshot injuries sustained during a traffic altercation were “caused by accident” and, therefore, subject to uninsured motorist coverage. State Farm Mut. Auto. Ins. Co. v. McMillan, 925 P.2d 785 (Colo. 1996).

Phrase “caused by accident” was ambiguous, and must be construed against the drafter of the insurance policy. State Farm Mut. Auto. Ins. Co. v. McMillan, 925 P.2d 785 (Colo. 1996).

“Use of an automobile” held not to include the defendant's action of blocking the path of the plaintiffs' vehicle with his own vehicle, exiting his vehicle, and then assaulting the plaintiffs with a golf club. Roque v. Allstate Ins. Co., 2012 COA 10 , 318 P.3d 1.

Passenger who was injured after exiting a vehicle to approach the occupant of another vehicle in a road rage incident was not “using” the vehicle as contemplated by the insurance policy when he was injured. Further, because he had voluntarily left the vehicle for a purpose that was not inherent to transportation and was not avoiding imminent injury, his injuries did not arise out of the use of the vehicle. Boyle v. Bristol W. Ins. Co., 2020 COA 102 , 480 P.3d 716.

The insurance commissioner cannot by any of his actions vary the requirements of this section or change the public policy of this state determined by the general assembly as specified in former § 10-4-320 . Nationwide Mut. Ins. Co. v. Hillyer, 32 Colo. App. 163, 509 P.2d 810 (1973).

Provision in insurance policy that allows the insurer to set off benefits received from workmen's compensation is, in effect, the reduction of uninsured motorist coverage in contravention of the established minimums, and this result is contrary to public policy. Nationwide Mut. Ins. Co. v. Hillyer, 32 Colo. App. 163, 509 P.2d 810 (1973).

An employee injured during the course of employment cannot claim benefits under his or her employer's UM/UIM policy in addition to workers' compensation. Markel Ins. Co. v. Hollandsworth, 400 F. Supp. 3d 1155 (D. Colo. 2019 ).

Double recovery is not contemplated by the uninsured motorist statute. Alliance Mut. Cas. Co. v. Duerson, 184 Colo. 117 , 518 P.2d 1177 (1974).

“Other insurance” clause not offensive to public policy. A person purchasing a motor vehicle insurance policy has three options: That of rejecting uninsured motorist coverage; that of purchasing it in a minimum amount; or that of purchasing it in an amount greater than that specified by statute. In view of these options, there is nothing offensive to public policy in an “other insurance” clause which denied recovery of additional sums over and above that provided by the primary insurance carrier. Alliance Mut. Cas. Co. v. Duerson, 184 Colo. 117 , 518 P.2d 1177 (1974).

Validity of arbitration clauses. While courts in other jurisdictions have held that insurance policy clauses requiring arbitration of coverage under the uninsured motorist provisions cannot be reconciled with statute requiring protection against uninsured motorists, the Colorado appellate court has declined to adopt this view in light of the discernible policy supporting arbitration in this state. Wales v. State Farm Mut. Auto. Ins. Co., 38 Colo. App. 360, 559 P.2d 255 (1976).

An arbitration clause that compels an insured to arbitrate a claim for UM benefits does not directly limit the insured's right to such benefits and is thus enforceable. Peterman v. State Farm Mut. Auto. Ins. Co., 948 P.2d 63 (Colo. App. 1997), rev'd on other grounds, 961 P.2d 487 (Colo. 1998).

Requirement for enforceability of arbitration clause. C.R.C.P. 109, which requires that the parties execute a written agreement to arbitrate a dispute, that an arbitrator be named, and that the award may be filed as a basis of a judgment, must be satisfied as a requisite to enforceability of an arbitration clause in an insurance policy. Wales v. State Farm Mut. Auto. Ins. Co., 38 Colo. App. 360, 559 P.2d 255 (1976).

Personal injury protection and uninsured motorist coverage compared. Newton v. Nationwide Mut. Fire Ins. Co., 197 Colo. 462 , 594 P.2d 1042 (1979).

For decisions under former § 10-4-320 relating to legislative declaration as to uninsured motorist coverage, see Nationwide Mut. Ins. Co. v. Hillyer, 32 Colo. App. 163, 509 P.2d 810 (1973); Alliance Mut. Cas. Co. v. Duerson, 184 Colo. 117 , 518 P.2d 1177 (1974); Farmers Ins. Exch. v. McDermott, 34 Colo. App. 305, 527 P.2d 918 (1974); Granite State Ins. Co. v. Dundas, 34 Colo. App. 382, 528 P.2d 961 (1974); Wales v. State Farm Mut. Auto. Ins. Co., 38 Colo. App. 360, 559 P.2d 255 (1976); Newton v. Nationwide Mut. Fire Ins. Co., 197 Colo. 462 , 594 P.2d 1042 (1979).

This section regulates the availability of insurance protection against uninsured motorists and is designed to protect persons from the often devastating consequences of motor vehicle accidents. Kral v. Am. Hardware Mut. Ins. Co., 784 P.2d 759 (Colo. 1989); Thurman v. State Farm Mut. Auto. Ins. Co., 942 P.2d 1327 (Colo. App. 1997); DeHerrera v. Sentry Ins. Co., 992 P.2d 629 (Colo. App. 1999), rev'd on other grounds, 30 P.3d 167 (Colo. 2001).

This section requires insurers to offer their customers the opportunity to protect themselves from loss caused by negligent conduct of drivers who have not obtained insurance to pay for such loss. The coverage enables the insured to gain compensation for loss due to the negligent conduct of non-insured motorists in the same manner as the insured would be compensated for loss due to the negligent conduct of insured motorists. Kral v. Am. Hardware Mut. Ins. Co., 784 P.2d 759 (Colo. 1989); Thurman v. State Farm Mut. Auto. Ins. Co., 942 P.2d 1327 (Colo. App. 1997).

Purpose of section is to provide insurance protection against injuries and damages caused by financially irresponsible uninsured motorists. Shelter Mut. Ins. Co. v. Thompson, 852 P.2d 459 (Colo. 1993) (decided prior to 1992 amendment); Freeman v. State Farm Mut. Auto. Ins. Co., 946 P.2d 584 (Colo. App. 1997).

The purpose of underinsured motorist coverage is to enable an insured to receive coverage to the extent necessary to compensate fully for a loss caused by the conduct of a financially irresponsible driver. Freeman v. State Farm Mut. Auto. Ins. Co., 946 P.2d 584 (Colo. App. 1997).

This section is to assure that a person injured by an uninsured motorist is compensated to the same extent as one injured by a motorist who is insured in compliance with the law. Section 10-4-711 requires coverage only for accidents that occur within the United States, its territories or possessions, Canada, and Puerto Rico. Gonzales v. Allstate Ins. Co., 51 P.3d 1103 (Colo. App. 2002).

This section does not allow a plaintiff to recover benefits in excess of the total amount of damages. Subsection (1)(c) limits UM/UIM benefits to “the difference, if any” between the defendant's policy limits and the actual damages sustained. Bailey v. State Farm Mut. Auto. Ins. Co., 2018 COA 133 , 429 P.3d 109.

Where defendant's insurer sent him a letter agreeing to pay “any compensatory damage award which may be awarded at trial, regardless of amount”, the UM/UIM statute was not triggered and plaintiff was not entitled to collect any amount exceeding the $300,000 awarded by the jury and paid by the defendant's insurer. Bailey v. State Farm Mut. Auto. Ins. Co., 2018 COA 133 , 429 P.3d 109.

This section contains no provision expressly authorizing insurers to limit their liability for uninsured motorist benefits. Kral v. Am. Hardware Mut. Ins. Co., 784 P.2d 759 (1989).

Liability of insurer for underinsured motorist coverage is not contingent upon insured's full recovery under tortfeasor's policy. State Farm Mut. Auto. Ins. Co. v. Bencomo, 873 P.2d 47 (Colo. App. 1994).

Whether an insurer has made a sufficient offer requires an analysis of whether the notification was commercially reasonable, the limits of the coverage were specified, the insured was intelligibly advised as to the nature of the coverage so as to allow an assessment of the offer, and whether the insured was advised that the optional coverage was available for a modest increase in the premium. Parfrey v. Allstate Ins. Co., 815 P.2d 959 (Colo. App. 1991), aff'd in part and rev'd in part, 830 P.2d 905 (Colo. 1992).

The plain language of subsection (1)(c) renders any “actual exhaustion” requirement in a UIM policy void and unenforceable. An exhaustion clause purports to condition UIM coverage on the insured actually recovering the maximum amount under the other driver's legal liability coverage. Because the exhaustion clause imposes a condition precedent on coverage mandated by the statute, the clause is void and unenforceable. Tubbs v. Farmers Ins. Exch., 2015 COA 70 , 353 P.3d 924.

Subsection (1)(c) requires an insurer to cover an insured for damages sustained in excess of the other driver's legal liability limit, in an amount up to the limit of insured's UIM coverage, regardless of how much, if any, the insured actually recovered under the other driver's legal liability coverage. Tubbs v. Farmers Ins. Exch., 2015 COA 70 , 353 P.3d 924.

An insurer is liable for prejudgment interest pursuant to § 5-12-102 for underinsured motorist coverage from the date of the insurer's wrongful refusal or failure to pay, notwithstanding a policy provision that provided that liability and the amount of damages were to be determined by agreement of the parties or by arbitration. Bowen v. Farmers Ins. Exch., 929 P.2d 14 (Colo. App. 1996).

Insurer is liable for prejudgment interest in excess of an uninsured motorist policy limit pursuant to § 5-12-102 where the interest is a damage item that did not arise out of the accident but arose instead out of the insurer's breach of the insurance contract. Peterman v. State Farm Mut. Auto. Ins. Co., 8 P.3d 549 (Colo. App. 2000).

Insurer is not liable for prejudgment interest in excess of the underinsured motorist policy limits. If the insurer has paid the maximum allowed under the policy, prejudgment interest may not be added. Vaccaro v. Am. Family Ins. Group, 2012 COA 9 M, 275 P.3d 750.

The purpose of subsection (2) is to provide the prospective policyholder an opportunity to make an informed decision regarding the appropriate level of uninsured/underinsured motorist (UM/UIM) coverage. Richardson v. Farmers Ins. Exch., 101 P.3d 1138 (Colo. App. 2004).

In furtherance of that purpose, the subsection imposes a duty on the insurance company to offer the prospective policyholder the opportunity to purchase UM/UIM coverage in an amount equal to the policyholder's bodily injury liability limits up to $100,000 per person and $300,000 per accident. DeHerrera v. Sentry Ins. Co., 30 P.3d 167 (Colo. 2001); Richardson v. Farmers Ins. Exch., 101 P.3d 1138 (Colo. App. 2004).

Subsection (2) creates a one-time duty upon an insurer to notify an insured of the nature and purpose of uninsured and underinsured motorist coverage and to give such insured the opportunity to purchase such coverage in accordance with the insurer's rating plan. Allstate Ins. Co. v. Parfrey, 830 P.2d 905 (Colo. 1992).

But the insurer's duty of notification and offer must be performed in such a manner as is reasonably calculated to permit the insured to make an informed choice as to whether to purchase uninsured and underinsured motorist coverage in an amount which exceeds the minimum statutory liability limits. Allstate Ins. Co. v. Parfrey, 830 P.2d 905 (Colo. 1992); Richardson v. Farmers Ins. Exch., 101 P.3d 1138 (Colo. App. 2004).

An insurer's failure to provide a stated premium (or formula for determining the premium) for optional, enhanced UM/UIM coverage does not in and of itself render insurer's offer insufficient under subsection (2). Airth v. Zurich Am. Ins. Co., 2018 COA 9 , __ P.3d __.

Subsection (2) does not make the obligation to inform contingent upon the insured's purchase of bodily injury liability coverage in excess of the statutory minimum. Loar v. State Farm Mut. Auto. Ins. Co., 143 P.3d 1083 (Colo. App. 2006) (decided prior to 2007 amendment).

Absent any special relationship of “entrustment” in which an insurer assumes a greater duty of care for an insured, the insurer has no obligation to offer or recommend UM/UIM coverage in an amount greater than the statutorily set limits. Kaercher v. Sater, 155 P.3d 437 (Colo. App. 2006).

The determination as to whether an insurer adequately performed its duty of notification and offer will be based on a consideration of the totality of the circumstances. Factors to consider include the clarity of the explanation, whether the explanation was oral or written, the specificity of the options explained to the insured, the price of the different levels of coverage, and any other circumstances regarding the adequacy and clarity of the notification and offer. Allstate Ins. Co. v. Parfrey, 830 P.2d 905 (Colo. 1992).

Where the insurer does not comply with the statutory requirement to offer the prospective policyholder the opportunity to purchase UM/UIM coverage in an amount equal to the policy's bodily injury liability limits for a class of insureds coextensive with the class of insureds covered under the liability provisions, a step-down endorsement limiting UM/UIM coverage for permissive users of the covered individual's vehicle is unenforceable. Richardson v. Farmers Ins. Exch., 101 P.3d 1138 (Colo. App. 2004).

Under subsection (2), insureds are not entitled to obtain enhanced UM/UIM coverage without raising their own bodily injury liability limits. Loar v. State Farm Mut. Auto. Ins. Co., 143 P.3d 1083 (Colo. App. 2006) (decided prior to 2007 amendment).

Former § 10-4-712 (3)(c)(II) (H) contained an exception to this section's rule that an insurer does not have a duty to offer higher UM/UIM coverage when the insured makes a change to a policy. The exception required the insurer to offer new UM/UIM coverage pursuant to subsection (2) if there is an increase in bodily injury liability limits and the limits of the uninsured motorist coverage would be less than such limits. Pacheco v. Shelter Mut. Ins. Co., 583 F.3d 735 (10th Cir. 2009) (decided under law in effect in 2000).

Former § 10-4-712 (3)(c)(II) (H) required insurer to offer higher UM/UIM coverage when insureds increased their bodily injury liability limits, regardless of whether the policy was a new policy, a replacement policy, or a renewal policy. Pacheco v. Shelter Mut. Ins. Co., 583 F.3d 735 (10th Cir. 2009) (decided under law in effect in 2000).

Factors to consider in determining, under a totality of the circumstances approach, whether the insurer satisfied its duty to notify and offer higher UM/UIM coverage include the clarity with which the purpose of UM/UIM coverage was explained to the insured; whether the explanation was made orally or in writing; the specificity of the options made known to the insured; the price at which the different levels of UM/UIM coverage could be purchased; and any other circumstances bearing on the adequacy and clarity of the notification and offer. Pacheco v. Shelter Mut. Ins. Co., 583 F.3d 735 (10th Cir. 2009) (decided under law in effect in 2000).

A written rejection of coverage is required only with respect to the minimum UM/UIM coverage available under subsection (1) and not to the additional UM/UIM coverage available under subsection (2). Airth v. Zurich Am. Ins. Co., 2018 COA 9 , __ P.3d __.

“Stacking” provisions harmonized. Subsection (2) allows an insurer to prohibit stacking of UM/UIM limits only as to policies issued to the insured, not as to policies covering the insured but not issued to the insured or a resident relative. Therefore, under subsection (4)(a), the policy limits of two policies could be combined to determine whether the tortfeasor was underinsured. Progressive Spec. Ins. Co. v. Hartford Und. Ins. Co., 148 P.3d 470 (Colo. App. 2006).

Where a policy lawfully excludes liability coverage in a specific circumstance, the insurance company has no obligation to provide UM/UIM coverage for that circumstance, and the exclusion is not void against public policy. Maxwell v. James River Ins. Co., 401 F. Supp. 3d 1183 (D. Colo. 2019 ).

Exclusion of a vehicle insured under the liability terms of a policy from uninsured motor vehicle coverage does not violate the legislative purposes and the public policy underlying this section. The insured vehicle exclusion prevents the transformation of uninsured coverage into liability coverage when a claim is made for uninsured motorist benefits to compensate injuries that result from the operation of a vehicle insured for liability. Terranova v. State Farm, 800 P.2d 58 (Colo. 1990); Jacox v. Am. Family Mut. Ins. Co., 2012 COA 170 , 317 P.3d 1242; Rivera v. Am. Family Ins. Group, 2012 COA 175 , 292 P.3d 1181.

Exclusions for coverage based on vehicles being owned by the policyholder but insured by a different automobile insurance policy are void and against the public policy of this section. Jaimes v. State Farm Mut. Auto. Ins. Co., 53 P.3d 743 (Colo. App. 2002).

Owned-but-not-insured exclusion is misleading. In UM/UIM policy, an exclusion for owned-but-not-insured vehicles is void. Therefore, an insurer who includes such an exclusion in its policies fails to satisfy its disclosure obligations. Briggs v. Am. Nat'l Prop. & Cas. Co., 209 P.3d 1181 (Colo. App. 2009).

A clause limiting coverage to incidents corroborated by someone other than the named insured are void against the public policy of this section. This section does not include a corroboration clause or permit a policy to have such a provision. Therefore, the use of such clauses violates the public policy. Mavashev v. Windsor Ins. Co., 72 P.3d 469 (Colo. App. 2003).

Uninsured motorist benefits unavailable to insured when policy definition excludes from uninsured motorist protection an automobile insured under the policy's liability coverage and policy also denies liability coverage under a household exclusion. Allstate v. Feghali, 814 P.2d 863 (Colo. 1991).

Insurance coverage under this section is not based on the number of uninsured or underinsured tortfeasors causing an accident, nor is it significant that one driver was uninsured and the other was underinsured. Farmers Ins. Exch. v. Star, 952 P.2d 809 (Colo. App. 1997); Am. Family Mut. Ins. Co. v. Murakami, 169 P.3d 192 (Colo. App. 2007).

Holders of certificates of self-insurance are not required by subsection (1) to carry uninsured motorist coverage. White by Scott v. Reg'l Transp. Dist., 735 P.2d 218 (Colo. App. 1987).

A car rental agreement constitutes an insurance policy for purposes of this section, where the rental company offers to sell the lessee various types of insurance coverage for specified prices. The lessee is the named insured and the rental company is required to provide the lessee the option of purchasing uninsured motorist coverage. Passamano v. Travelers Indem. Co., 882 P.2d 1312 (Colo. 1994).

The fact that the car rental company is self-insuring is not controlling. The car rental company still constitutes an insurer and must offer the lessee, as the named insured, the option of rejecting uninsured motorist protection. Passamano v. Travelers Indem. Co., 882 P.2d 1312 (Colo. 1994).

The definition of “policy” in § 10-4-601 (2) does not apply to this section. Application of the definition to this section would conflict with the legislative intent that all purchasers of automobile liability insurance policies must be afforded the opportunity to purchase uninsured motorist coverage. Passamano v. Travelers Indem. Co., 882 P.2d 1312 (Colo. 1994).

Subrogation and release-trust agreements allowed. With regard to an award under uninsured motorist coverage, an insurer can be subrogated to the rights which the insured has against those persons responsible for his injuries. Likewise, a trust release agreement entered into between the insured and the insurer is not void as against public policy. Granite State Ins. Co. v. Dundas, 34 Colo. App. 382, 528 P.2d 961 (1974); Kral v. Am. Hardware Mut. Ins. Co., 754 P.2d 411 (Colo. App. 1987), rev'd on other grounds, 784 P.2d 759 (Colo. 1989).

Subsection (1) of this section and § 42-7-103 (2) , when read together, clearly establish the intent of the general assembly to provide a mechanism by means of which an insured might purchase insurance coverage for protection against loss caused by the conduct of a negligent and financially irresponsible motorist. This legislative intent is further reflected in subsections (4) and (5) of this section which provisions were added to the uninsured motorist coverage statute in 1983. Kral v. Am. Hardware Mut. Ins. Co., 784 P.2d 759 (Colo. 1989); Briggs v. Am. Family Mut. Ins. Co., 833 P.2d 859 (Colo. App. 1992).

Subsection (4) permits an injured insured to recover for loss caused by an underinsured motorist to the same extent the insured would recover if the underinsured motorist had no insurance. Subsection (5) measures the maximum limits of the insurer's liability by the extent of the insured's loss. When considered together, subsections (1), (4), and (5) of this section and § 42-7-103 (3) reflect a clear legislative purpose to place an injured party having uninsured motorist coverage in the same position as if the uninsured motorist had been insured. Kral v. Am. Hardware Mut. Ins. Co., 784 P.2d 759 (Colo. 1989); Briggs v. Am. Family Mut. Ins. Co., 833 P.2d 859 (Colo. App. 1992).

Subsection (5) allows an insurer to aggregate all amounts received by the insured from all parties liable for his or her injuries, and such a policy would not violate public policy by impermissibly diluting or limiting statutorily mandated coverage. Carlisle v. Farmers Ins. Exch., 946 P.2d 555 (Colo. App. 1997); Am. Family Mut. Ins. Co. v. Murakami, 169 P.3d 192 (Colo. App. 2007).

Primary insurer is first to receive the offset under subsection (5). As between a primary insurer and an excess insurer, the primary insurer faced the greater risk. Had the tortfeasor been uninsured, the primary insurer would have been required to pay the claim up to the full amount of its policy limits before the excess insurer was required to pay anything. Therefore, the primary insurer should be the first to receive the benefit of the offset. Progressive Spec. Ins. Co. v. Hartford Und. Ins. Co., 148 P.3d 470 (Colo. App. 2006).

In the case of two competing insurance policies, the excess clauses, even if tied to a vehicle, do not erode the mandate that insurers provide UIM coverage. Therefore, both policies are valid under state law. Baker v. Allied Prop. & Cas. Ins. Co., 939 F. Supp. 2d 1091 (D. Colo. 2013 ).

Where there are competing excess clauses, a court must treat the clauses as mutually repugnant and void. Therefore, both insurers are co-primary and must share any losses on a dollar-for-dollar basis until the policy limits of one are exhausted. Baker v. Allied Prop. & Cas. Ins. Co., 939 F. Supp. 2d 1091 (D. Colo. 2013 ).

The purpose of underinsurance is to place the injured party in the same position as if the underinsured had liability limits in amounts equal to the insured's coverage. This will not necessarily result in the injured being compensated to the full extent of such injured person's injuries. Leetz v. Amica Mut. Ins. Co., 839 P.2d 511 (Colo. App. 1992); Prudential Prop. and Cas. Ins. Co. v. LaRose, 919 P.2d 915 (Colo. App. 1996); McCord v. Affinity Ins. Group, Inc., 13 P.3d 1224 (Colo. App. 2000).

The purpose of the uninsured/underinsured motorist coverage available pursuant to this section is to compensate fully an innocent insured for loss, subject to policy limits, caused by financially irresponsible motorists. Farmers Ins. Exch. v. Walther, 902 P.2d 930 (Colo. App. 1995).

This section does not specify how legal entitlement to uninsured motorist benefits is to be determined in regard to the liability of an insurer. It is the insurance policy that specifies the process for determining whether the insured is “legally entitled” to collect damages so as to bind the insurer. Peterman v. State Farm Mut. Auto. Ins. Co., 948 P.2d 63 (Colo. App. 1997), rev'd on other grounds, 961 P.2d 487 (Colo. 1998).

This section requires insurers to offer uninsured motorist coverage to a class of individuals coextensive with the class covered by the liability provision of the respective policy. Aetna Cas. & Sur. Co. v. McMichael, 906 P.2d 92 (Colo. 1995); Richardson v. Farmers Ins. Exch., 101 P.3d 1138 (Colo. App. 2004); Farmers Ins. Exch. v. Anderson, 260 P.3d 68 (Colo. App. 2010).

Section does not impose a right to be offered UM/UIM insurance on a per vehicle basis. Neither the statute nor case law interpreting the statute expressly or impliedly requires that insurance be offered for each vehicle owned by the policyholder. Briggs v. Am. Nat'l Prop. & Cas. Co., 209 P.3d 1181 (Colo. App. 2009).

The enforcement of a subrogation clause and release-trust agreement placing the insured in the position of having no greater protection against her loss than if uninsured motorist coverage had not been purchased contravened the strong policy adopted by the general assembly to enable an insured who purchases uninsured motorist protection to receive the benefits of that coverage to the extent necessary for full compensation for loss caused by the negligent conduct of a financially irresponsible motorist. Kral v. Am. Hardware Mut. Ins. Co., 784 P.2d 759 (Colo. 1989).

To the extent any reduction of benefits payable to the insured under the uninsured motorist provision of the contract of insurance because of the terms of the subrogation clause and release-trust agreement would result in the insured's inability to obtain full compensation for the loss she sustained, the agreements would directly violate that legislative policy and would therefore be unenforceable. Kral v. Am. Hardware Mut. Ins. Co., 784 P.2d 759 (Colo. 1989).

The general assembly's decision to allow insureds to decline to purchase uninsured motorist protection does not mean the legislature has exempted subrogation of uninsured motorist benefits from its general policy of requiring full compensation to insureds for loss sustained in automobile accidents. Kral v. Am. Hardware Mut. Ins. Co., 784 P.2d 759 (Colo. 1989).

Arbitration provision in no-fault policy with uninsured motorist coverage requiring each party to pay its own fees and expenses of arbitration held void as against public policy and unenforceable. Garceau v. Iowa Kemper Ins. Co., 859 P.2d 243 (Colo. App. 1993).

Where clause of an uninsured motorist policy permits either party to demand trial on merits after the completion of arbitration if amount awarded exceeds specified amount, clause violates public policy by diluting uninsured motorist coverage and is unenforceable. Huizar v. Allstate Ins. Co., 952 P.2d 342 (Colo. 1998).

“Actual trial” clause in insurance contract violates public policy by diluting uninsured motorist coverage and is unenforceable. State Farm Mut. Auto. Ins. Co. v. Brekke, 105 P.3d 177 (Colo. 2004).

Denial of coverage in cases where the uninsured motorist's liability is determined in a default judgment needlessly requires the insured to re-litigate issues already decided. State Farm Mut. Auto. Ins. Co. v. Brekke, 105 P.3d 177 (Colo. 2004).

The general assembly has established that a person who purchases uninsured motorist coverage and sustains loss caused by the negligent conduct of an uninsured motorist is entitled to the benefits of such coverage to the extent necessary to fully compensate the insured for the loss, subject to the limits of the insurance contract. However, the general assembly did not intend to grant windfall profits to insureds by authorizing them to obtain double recovery for the same loss. To the extent payment of all or part of the authorized uninsured motorist benefit to the insured would, when added to the settlement proceeds she received, result in her receiving sums in excess of her total loss, the insurer should be entitled to enforce the terms of a release-trust agreement. Kral v. Am. Hardware Mut. Ins. Co., 784 P.2d 759 (Colo. 1989).

Allowing an insurance company to reduce the amount to be paid in UM/UIM coverage by the amount of social security disability benefits received by the insured contravenes public policy which allows insureds full recovery within policy limits. Barnett v. Am. Family Mut. Ins. Co., 843 P.2d 1302 (Colo. 1993).

Subsection (1)(c) bars the setoff of medical payments from the amount actually paid pursuant to UM/UIM coverage. Calderon v. Am. Family Mut. Ins. Co., 2016 CO 72, 383 P.3d 676.

“The amount of the [UM/UIM] coverage available pursuant to this section” in subsection (1)(c) refers not to the coverage limit but rather to the amount of UM/UIM coverage available on a particular claim. Calderon v. Am. Family Mut. Ins. Co., 2016 CO 72, 383 P.3d 676.

Workers' compensation benefits may not be offset against UIM coverage under Colorado law. Adamscheck v. Am. Family Mut. Ins. Co., 818 F.3d 576 (10th Cir. 2016).

While insureds should not be deprived of benefits for which they pay premiums, they should not be given a double recovery. Where plaintiff is fully compensated for medical expenses, it is not unlawful for insurer to deduct from UM/UIM benefits the amount of medical payments insurer paid. Levy v. Am. Family Mut. Ins. Co., 293 P.3d 40 (Colo. App. 2011).

This section has been construed to allow certain offsets of amounts that the insured receives from the tortfeasor's carrier and the uninsured/underinsured motorist benefits the insured receives under a policy other than his or her own when injured by an uninsured motorist, except that insurer may not offset amounts an insured receives under “separate and distinct” insurance or other agreements. Farmers Ins. Exch. v. Walther, 902 P.2d 930 (Colo. App. 1995).

Under this section, an injured person covered by an underinsured motorist policy who settles in good faith with a tortfeasor or liability carrier for less than the tortfeasor's policy limits, and who is eligible for underinsured motorist benefits, is entitled to compensation in an amount not exceeding the difference between the amount paid to the insured by or on behalf of the tortfeasor and the limits of underinsured motorist coverage. State Farm Mut. Auto. Ins. Co. v. Tye, 931 P.2d 540 (Colo. App. 1996) (decided under law in effect prior to the 2007 amendment).

Under this section, as amended in 2007, an insured motorist covered by an underinsured motorist policy is not entitled to coverage for the difference between a settlement amount obtained from the tortfeasor and the limit of the tortfeasor's liability policy coverage. Where the insured motorists, a husband and wife, were injured in a car accident and they settled with the other motorist for less than $100,000, they were not entitled to receive from their insurance company the difference between the settlement amount and the $100,000 limit of the other motorist's liability policy coverage. Jordan v. Safeco Ins. Co. of Am., Inc., 2013 COA 47 , 348 P.3d 443.

Phrase “legally liable for the bodily injury” refers only to the tortfeasor who caused such bodily injury or death. Carrier liable for underinsured motorist benefits that sought to offset amount owed to insured with amount insured received as heir to the decedent, who was not the tortfeasor, was not eligible for such offset, as liability for amount insured received as heir to the decedent was not “imposed by law”; rather, liability was imposed pursuant to a contract of insurances between decedent and her carrier that insured against losses resulting from bodily injury or death caused by someone legally liable for such bodily injury or death. McCord v. Affinity Ins. Group, Inc., 13 P.3d 1224 (Colo. App. 2000).

This section does not prohibit an auto policy provision that excludes coverage for personal injury to an insured's relative who occupied a vehicle owned by the insured but which was not covered by the insured's auto policy. Williams-Diehl v. State Farm, 793 P.2d 587 (Colo. App. 1989).

Nor does this section prohibit an exclusion for a vehicle that is not insured under the policy. An exclusion that does not cover any vehicle that is provided for the insured's use does not violate this section. Cruz v. Farmers Ins. Exch., 12 P.3d 307 (Colo. App. 2000).

There is a private cause of action based on violations of this section. Preventing an insured's right of relief for failure to provide the coverage would circumvent the statutory duty imposed upon insurers to include the coverage in every policy, unless the insured expressly rejects it. Parfrey v. Allstate Ins. Co., 815 P.2d 959 (Colo. App. 1991), aff'd in part and rev'd in part, 830 P.2d 905 (Colo. 1992).

Tort claim against the uninsured motorist is distinct from the contract claim against the insurer. In the former case, where the uninsured motorist's liability is determined by default, the insurer may not insist upon a jury trial. In the latter case, however, the amount of damages payable under the contract is an issue, and the insurer may demand a jury trial. State Farm Mut. Auto. Ins. Co. v. Brekke, 105 P.3d 177 (Colo. 2004).

The term “replacement policy” used in subsection (3) refers to a policy issued to replace a prior policy which has been lost or destroyed or to a new policy which incorporates provisions different from those in a prior policy. Allstate Ins. Co. v. Parfrey, 830 P.2d 905 (Colo. 1992).

Consent to sue clauses are void as against public policy. Briggs v. Am. Family Mut. Ins. Co., 833 P.2d 859 (Colo. App. 1992).

Consent to sue clause in uninsured motorist provisions of an insurance contract was void as against the statutory mandate of this state regarding uninsured motorist coverage. Peterman v. State Farm Mut. Auto. Ins. Co., 961 P.2d 487 (Colo. 1998).

Consent to settle clause does not violate public policy. Such clause, designed to protect the legitimate right of an insurer to pursue its subrogation rights, serves a valid purpose and does not diminish the protection of this statute. Estate of Harry v. Hawkeye-Security Ins. Co., 972 P.2d 279 (Colo. App. 1998).

Possibility of fraud or collusion is not justification for upholding consent to sue clauses and the multiplicity of lawsuits that result therefrom. Insurer can intervene in tort action between the insured and the uninsured for protection from such multiplicity of suits. Briggs v. Am. Family Mut. Ins. Co., 833 P.2d 859 (Colo. App. 1992).

An insurer will be bound by the resolution of issues in a tort action between the insured and an uninsured motorist as long as the insurer has notice and an opportunity to intervene, even if the insurer fails to seek intervention. Briggs v. Am. Family Mut. Ins. Co., 833 P.2d 859 (Colo. App. 1992).

“Consent to sue” clause in uninsured policy found void as against public policy. Briggs v. Am. Family Mut. Ins. Co., 833 P.2d 859 (Colo. App. 1992).

Anti-stacking provisions contained in underinsured motorist insurance policies do not violate the public policy underlying this section. Shelter Mut. Ins. Co. v. Thompson, 852 P.2d 459 (Colo. 1993).

Anti-stacking provisions contained in insurance policies are valid and the claimant was not entitled to stack the underinsured motorist benefits of his three separate policies. Colo. Farm Bureau Mut. Ins. v. Kehr, 853 P.2d 1155 (Colo. 1993); Farmers Ins. Exch. v. Stever, 854 P.2d 1230 (Colo. 1993).

Anti-stacking provisions do not include exclusionary provisions and “other insurance” provisions in the uninsured/underinsured policy concerning limitations on coverage when other automobile liability or uninsured/underinsured motorist coverage applies. Farmers Ins. Exch. v. Walther, 902 P.2d 930 (Colo. App. 1995).

Anti-stacking provision in subsection (2) does not apply where it was enacted after the policy was issued and after the accident on which the case was based occurred. Farmers Ins. Exch. v. Walther, 902 P.2d 930 (Colo. App. 1995); Sellers v. Allstate Ins. Co., 82 F.3d 350 (10th Cir. 1996).

Because the anti-stacking provisions of seven insurance policies applied only to policies issued by the same company, and the petitioners' motorcycle policy was not issued by the same company as their car policies, the existing record failed to support the district court's order in its entirety. The question of different insurance companies should have been addressed when noticed by the appellate court regardless of the petitioners' failure to raise it in the trial court or on appeal. Roberts v. Am. Family Mut. Ins. Co., 144 P.3d 546 (Colo. 2006).

Adding a new vehicle to a UM/UIM policy does not constitute the issuance of a new policy because a policy applies to the individuals insured and not the vehicles, therefore statutory amendments that became effective January 1, 2008, and applied only to policies issued or renewed on or after that date were not incorporated into an existing policy by the addition of coverage for a new vehicle. Snell v. Progressive Preferred Ins. Co., 260 P.3d 37 (Colo. App. 2010).

By its terms subsection (2) prohibits stacking a policy issued to a named insured upon another policy issued to the named insured or a resident relative of the named insured. The statute prohibits stacking a policy issued to injured child's mother upon a policy issued to the child or a policy issued to injured child's father upon a policy issued to the child. Because injured child's mother and father are not resident relatives of one another, the statute does not prohibit the stacking of a policy issued to the mother upon a policy issued to the father. Am. Std. Ins. Co. v. Savaiano, 298 F. Supp. 2d 1092 (D. Colo. 2003 ).

For purposes of uninsured motorist provisions, plaintiff's automobile was uninsured while under control of uninsured thief and therefore the owner who was injured while trying to stop theft of car was entitled to recover damages under uninsured motorist coverage. State Farm Mut. Auto. Ins. Co. v. Nissen, 835 P.2d 537 (Colo. App. 1992), aff'd, 851 P.2d 165 (Colo. 1993).

Policy requirement that plaintiff “occupy” vehicle at time of accident against public policy. Since plaintiff was using vehicle at time of accident even though not occupying it, he is entitled to recover. McMichael v. Aetna Ins. Co., 878 P.2d 61 (Colo. App. 1994).

Restrictions on kind of vehicle also against public policy. This act requires that UM/UIM insurance apply to an insured person when injured by a financially irresponsible motorist. The act places no geographical limits on coverage, nor does it purport to tie protection against uninsured motorists to occupancy in any kind of vehicle. DeHerrera v. Sentry Ins. Co., 30 P.3d 167 (Colo. 2001).

UM/UIM coverage follows the insured, not the vehicle. Wagner v. Travelers Prop. Cas. Co. of Am., 209 P.3d 1119 (Colo. App. 2008); Farmers Ins. Exch. v. Anderson, 260 P.3d 68 (Colo. App. 2010).

While section does not require insurer to advise insured of the implications of court decisions affecting UM/UIM coverage under automobile insurance policies, summary judgment in favor of insurer was not appropriate because there is a genuine question of material fact as to whether a reasonable consumer could believe insurer sold UM/UIM coverage on a vehicle basis rather than a policy basis, thereby requiring the consumer to purchase UM/UIM coverage on all vehicles in order to protect the named insured and residential family members. Wagner v. Travelers Prop. Cas. Co. of Am., 209 P.3d 1119 (Colo. App. 2008).

Insurer's policy was not misleading because it: (1) Does not list a separate UM/UIM premium for each of plaintiff's insured vehicles; (2) includes a total premium section specifically for UM/UIM insurance that provides coverage for class one insureds and class two insureds; (3) contains a declaration page identified as “Additional Coverage”; and (4) shows a single charge for the entire policy regardless of the number of vehicles covered. Mullen v. Allstate Ins. Co., 232 P.3d 168 (Colo. App. 2009).

Insurer did not fraudulently conceal a material fact from insured that in equity and good conscience should have been disclosed. Insurer is not required to provide information regarding the business practices of other insurance companies, specifically, that per-vehicle coverage was available from other insurance companies, and plaintiff and other insureds received the benefit of UM/UIM coverage under their policy for class two insureds in all vehicles listed on the policy. Mullen v. Allstate Ins. Co., 232 P.3d 168 (Colo. App. 2009).

Insurer did not commit negligent misrepresentation by omission. Insurer was not obligated to provide information about other types of coverage; insurer's policy did not include an owned but not insured exclusion; and insurer's UM/UIM coverage on additional vehicles provided an additional benefit by insuring class two insureds. Mullen v. Allstate Ins. Co., 232 P.3d 168 (Colo. App. 2009).

Insurer did not engage in bad faith where policy informed customers that purchase of UM/UIM coverage provided UM/UIM coverage for all class one and class two insureds in all vehicles. An offer that includes accurate information about additional benefits provided is sufficient, and those benefits do not need to be specifically identified as additional benefits. Mullen v. Allstate Ins. Co., 232 P.3d 168 (Colo. App. 2009).

Insurer's practices comply with Colorado law, and, therefore, its practices were not unreasonable. Mullen v. Allstate Ins. Co., 232 P.3d 168 (Colo. App. 2009).

In determining whether the tortfeasor's vehicle was underinsured, the trial court correctly used the per accident bodily injury liability limit in the tortfeasor's policy for comparison where the plaintiff's insurance policy specified only a single limit. Leetz v. Amica Mut. Ins. Co., 839 P.2d 511 (Colo. App. 1992).

A tortfeasor's motor vehicle is underinsured under subsection (4)(a) whenever the limits of insurance liability on that motor vehicle are less than the sum of the underinsured motorist coverage declared in the injured party's policy and the underinsured motorist coverage declared in all other applicable policies. The word “limits” contained in subsection (4)(a) refers to the full amount of underinsured motorist coverage allowed by the injured party's entire policy, including those terms and conditions that permit the “stacking” of the underinsured portions of a policy issued to the injured party and the underinsured portions of other policies covering the injured party that were not issued to either the injured party or one of his or her resident relatives. Therefore, the initial determination of whether a tortfeasor's motor vehicle is underinsured under subsection (4)(a) is determined by comparing the liability limits of the tortfeasor's vehicle with the sum of the underinsured portions of the injured party's policy and the underinsured portions of any other applicable policies. State Farm Mut. Auto. Ins. Co. v. Progressive Mut. Ins. Co., 148 P.3d 117 (Colo. 2006).

The legislative directive in this section to find coverage for “innocent insureds” should not be construed to provide coverage for non-insureds even when a non-insured person has relied on such coverage. Gen. Ins. Co. of Am. v. Smith, 874 P.2d 412 (Colo. App. 1993).

Public policy not violated for failure to carry uninsured motorist coverage for a particularly excluded driver or his or her innocent passenger. Lopez v. Dairyland Ins. Co., 890 P.2d 192 (Colo. App. 1994).

A policy for UM/UIM coverage, negotiated at specific request of the insured, that is more narrow than general liability coverage does not impermissibly dilute, condition, or limit the coverage that must be offered pursuant to this section. Bernal v. Lumbermens Mut. Cas. Co., 97 P.3d 197 (Colo. App. 2003).

The provisions of this section do not include an express restriction on the policyholder's freedom to modify the scope of UM/UIM coverage. Bernal v. Lumbermens Mut. Cas. Co., 97 P.3d 197 (Colo. App. 2003).

Public policy prohibits restricting UM/UIM coverage according to the type of vehicle. Where an employee operated a company truck within the course and scope of the employee's employment and for which the employer elected UM/UIM coverage for employee's occupying private passenger autos only, the court found restricted UM/UIM coverage an impermissible restriction on coverage. Bernal v. Lumbermens Mut. Cas. Co., 97 P.3d 197 (Colo. App. 2003).

The exclusion of uninsured motorist coverage for the wrongful death of a person who is not insured under the terms of an insurance policy does not violate the public policy underlying uninsured motorist insurance as required by this section. Farmers Ins. Exch. v. Chacon, 939 P.2d 517 (Colo. App. 1997).

Injuries sustained by police officer, who was attacked by dog that leapt from vehicle during stop and arrest of dog's owner who was uninsured, are not covered under officer's uninsured motorist coverage. Transporting of dog, in and of itself, insufficient to support a finding that the injury arose from the use of the automobile. Sanchez v. State Farm Mut. Auto. Ins. Co., 878 P.2d 31 (Colo. App. 1994).

Summary judgment in favor of insured defendant was proper where plaintiff was injured while a passenger in a vehicle driven by a person specifically excluded from insurance coverage under this section, and no obligation to provide uninsured motorist coverage exists. Lopez v. Dairyland Ins. Co., 890 P.2d 192 (Colo. App. 1994).

Summary judgment in favor of insurance company defendant was affirmed where claimant was not a named insured under her parents' policy, her claim for emotional distress was based on a provision that applied only to persons with derivative claims, and she sought damages as a result of her own direct injuries and not those of her mother. Wieprzkowski v. State Farm Mut. Auto. Ins. Co., 976 P.2d 891 (Colo. App. 1999).

An action against an insurance company is barred by res judicata where claimant's initial claim for UIM benefits arising from an accident and the subsequent bad faith breach of contract claim against the company derive from the same “transaction”. Salazar v. State Farm Mut. Auto. Ins. Co., 148 P.3d 278 (Colo. App. 2006).

Road repair truck used as barricade between worker and on-coming traffic was in “use” for purposes of recovery under underinsured motorist provisions of employer-truck owner's motor vehicle insurance policy. Liability coverage was extended to anyone using the insured vehicle with the permission of the named insured and since plaintiff had permission to use the vehicle, he was entitled to UIM coverage to the extent that his injuries arose out of the “use” of the truck. McMichael v. Aetna Ins. Co., 878 P.2d 61 (Colo. App. 1994).

Death not causally related to use of uninsured motor vehicle, therefore, uninsured motorist benefits not available under insurance policy. State Farm Mut. Auto. Ins. Co. v. Fisher, 618 F.3d 1103 (10th Cir. 2010).

“[U]se” does not include a sexual assault inside a motor vehicle. Using the interior of a motor vehicle for sexual assault is not a reasonably foreseeable use of a motor vehicle; therefore, it does not have a sufficient causal nexus to injuries caused by such act. State Farm Mut. Auto. Ins. Co. v. Kastner, 77 P.3d 1256 (Colo. 2003).

Insurer is entitled to aggregate damages from multiple insureds under this section in calculating amount owed under a per-accident policy. Union Ins. Co. v. Houtz, 883 P.2d 1057 (Colo. 1994).

Insurer's method of aggregating damages under the per-accident policy is not contrary to public policy. Union Ins. Co. v. Houtz, 883 P.2d 1057 (Colo. 1994).

Insurance policy coverage is not rendered illusory simply by crediting an insurer with payments it has made, even if payments might reduce available UM/UIM coverage. Levy v. Am. Family Mut. Ins. Co., 293 P.3d 40 (Colo. App. 2011).

Insurance policy exclusion for motorcycles does not violate public policy. Allstate Indem. Co. v. Gonzales, 902 P.2d 953 (Colo. App. 1995); DeHerrera v. Sentry Ins. Co., 992 P.2d 629 (Colo. App. 1999), rev'd on other grounds, 30 P.3d 167 (Colo. 2001).

Insured entitled to collect uninsured motorist benefits need not be person who suffered bodily injury or death. Where plaintiff sought to collect uninsured motorist benefits as an heir to the decedent under a wrongful death claim arising from a death caused by an underinsured motorist, plaintiff was an “insured” for the purposes of subsection (4). McCord v. Affinity Ins. Group, Inc., 13 P.3d 1224 (Colo. App. 2000).

Where divorced parents' son was killed in an automobile accident, and each parent had a separate policy applicable to the accident that provided up to $100,000 for damages arising from an accident involving an underinsured motor vehicle, and the driver's policy had a liability limit of $100,000, the driver was obligated to pay $50,000 to each parent. As a result, for purposes of each parent's policy, $50,000 was paid to a person “other than an insured injured person in the accident”, namely, the other parent. Hence, the driver's vehicle was underinsured under the terms of each policy. Under the wrongful death statute, each parent could recover up to $75,000 in uninsured motorist (UIM) benefits, and insurer was potentially liable under each parent's UIM policy for such amount. Kline v. Am. States Ins. Co., 924 P.2d 1150 (Colo. App. 1996).

An insurer may require judgment or settlement from the underinsured driver as a precondition to a claim for UIM benefits without diluting, conditioning, or unduly limiting statutorily mandated UIM coverage. Freeman v. State Farm Mut. Auto. Ins. Co., 946 P.2d 584 (Colo. App. 1997).

It is not bad faith for an insurer to not pay underinsured motorist coverage while related action is pending. The insurer's reliance on the plain meaning of the section and case law indicating that the amount of underinsured motorist coverage is unknown until recovery is made from the at-fault party was reasonable. Pham v. State Farm Mut. Auto. Ins. Co., 70 P.3d 567 (Colo. App. 2003).

Nothing in this section suggests the general assembly considered loss of consortium to be a separate bodily injury that must be insured against in all insurance policies. Thus an insurer need not offer either liability or uninsured motorist insurance which separately covers a loss of consortium claim to be in compliance with this section. Spaur v. Allstate Ins. Co., 942 P.2d 1261 (Colo. App. 1996).

Loss of consortium is not a “sickness” of the noninjured spouse any more than it is a “bodily injury”, it is merely an element of consequential damages arising out of the bodily injury to the spouse injured in the accident. Spaur v. Allstate Ins. Co., 942 P.2d 1261 (Colo. App. 1996).

This section does not require full indemnification of losses suffered at the hands of the uninsured motorists under all circumstances without regard to policy limits. Spaur v. Allstate Ins. Co., 942 P.2d 1261 (Colo. App. 1996).

Independent contractor who elects not to obtain a policy of workers' compensation insurance covering himself is precluded from recovering more than the $15,000 statutory limit in damages from a UM/UIM insurer of the employer of a tortfeasor who is in the same employ as the independent contractor. Cont'l Divide Ins. Co. v. Dickinson, 179 P.3d 202 (Colo. App. 2007).

Applied in O'Sullivan v. Geico Cas. Co., 232 F. Supp. 3d 1170 (D. Colo. 2017 ).