“Keep your friends close, and your enemies closer.” Machiavelli. At a YMCA basketball game, Vaughn, the father of a player, hit Miller, a referee, and injured him. Miller sues and Vaughn’s insurer, Shelter, defends under a reservation of rights because its policy excludes coverage for intentional acts. Vaughn is found negligent. Vaughn then assigned his rights in his insurance coverage to Miller, in a Bashor Agreement. Shelter brought a declaratory judgment action denying coverage and wins. Vaughn and Miller argued that Shelter was precluded from disclaiming coverage because Vaughn was found to have acted negligently, not intentionally. The court disagreed, affirming judgment for Shelter. Shelter was not collaterally estopped, because 1) Vaughn’s and Shelter’s interests conflicted and 2) Shelter could not have argued Vaughn acted intentionally while defending him.
Tag Archives: Coverage
Sometimes good law goes bad. It gets on a motorcycle, crashes and kills a passenger. And then the Supreme Court holds that the passenger was only covered by the liability portion of an insurance policy, but not the uninsured/underinsured motorist (UM/UIM) portion of the same policy. And then the legislature amends the law that the Supreme Court interpreted to permit “same policy” exclusions. Once again, a passenger is injured and is paid under the liability portion, but denied UM/UIM coverage. Did that Supreme Court case go bad? No. Here, as in the companion case, the types of covered events an insurer can validly restrict include “same policy” exclusions that do not violate stacking amendments or the prohibition on setoffs. Nor are such exclusions contrary to public policy, because the new statute does not require full indemnification. Thus, the denial of coverage was upheld.
Uninsured/underinsured motorist (UM/UIM) coverage has recently been hotly disputed both in court and in legislatures. This case, together with a companion case, addresses the situation where a passenger is injured by the insured in the insured’s vehicle. Passenger obtains liability coverage insufficient to cover losses, but is denied UM/UIM payments. The policy contains a “same policy” exclusion denying UM/UIM coverage when a person has liability coverage under the same policy. Passenger claims the exclusion is statutorily invalid. The court of appeals disagreed and held that the statute, CRS 10-4-609, does allow a policy to stack liability and UM/UIM coverage, but does not prohibit “same policy” exclusions. Although setoff provisions are prohibited, the court held the exclusion is not a “setoff.” Thus, the exclusion was valid and so was the denial of UM/UIM coverage.
Auto accidents hurt everyone. Wife became the named insured on an auto policy originally issued to her ex-husband. She got into an accident and obtained a sizable verdict against the insurer based on its failure to offer personal injury protection (PIP) options anew at the time she became insured. The core holding of the court of appeals was to uphold reformation of the policy to include the maximum PIP benefits that would have been offered had they been offered at the time the policy was issued to the ex-wife. But two other holdings may have wider applicability. One, a motion for a new trial does not preserve an issue for appeal presented as an issue of law. For that, a motion for “judgment notwithstanding verdict” is required. Second, a complaint may be amended to include punitive damages at the close of evidence if the defendant presented evidence contradicting the claim during trial.
Everyone looks for a loophole to the American Rule that parties bear their own costs and fees. One is CRCP 54(b), allowing cost awards to the “prevailing party.” Here, defendant successfully opposed class certification. The plaintiffs’ own claims are still pending. The trial court awarded defendant fees and costs, related to class certification, under CRCP 54(b). This appeal, the third so far, addressed that award. Though the case is still ongoing, the appeals court held it had jurisdiction to decide the costs issue, because the class certification issues were finally decided, and the cost award being appealed related only to the class certification claims. The court then reversed the award of costs because defendant’s procedural victory, which did not dispose of either the plaintiffs’ substantive claims, or even those of the putative class, did not make it a prevailing party.
National Farmers Union Property and Casualty Company v. Garfinkel, et. al. 2012COA46 (March 15, 2012)
With wildfires burning, this Homeowner’s Insurance coverage case is timely. The Insurer brought a coverage action disclaiming liability under a Homeowner’s policy for a wildfire started on property owned by a LLC operated by the homeowners. The trial granted summary judgment for the insureds, holding 2 exclusions did not apply, and coverage existed. The court of appeals disagreed in part. First, under the “Business Pursuits” exclusion, it held the test is 1) continuity or regularity of the activity, and 2) profit motive. Applying that test, the court reversed. Leasing a farm to homeowners may be a “business pursuit,” but is a question of fact requiring a trial. Second, the policy excluded uninsured property “owned” but not “controlled” by the insured. But it applies only where the insured is the title owner. Here title was in the LLC, so the exclusion did not apply to the homeowners.