Paso County District Court No. 14CV30936. Honorable G. David
Marion & Klaus, P.C., Gregory K. Falls, Denver, Colorado, for
Rector Law Firm, L. Dan Rector, Terry E. Rector, Colorado
Springs, Colorado, for Defendant-Appellant.
1] Defendant, Ryan D. Collins, appeals the summary
judgment entered against him and in favor of plaintiff, GEICO
Casualty Company (GEICO). Ryan was injured in a motorcycle
accident and sought underinsured motorist coverage under an
insurance policy issued by GEICO to Amanda Collins, his wife
at the time of the accident. GEICO denied coverage on
the ground that Ryan was not a " resident relative"
under the policy because he did not reside in Amanda's
household at the time of the accident. § 10-4-601(13),
C.R.S. 2015. This case thus presents the question whether
spouses may be considered residents of the same household for
purposes of insurance coverage when, although they remain
married, they live apart. The answer to that question may be
" yes," depending on the circumstances. Considering
the circumstances of this case, however, we conclude that
Ryan was not a resident of Amanda's household at the time
of the accident and therefore was not a resident relative
within the coverage provisions of the GEICO policy.
Consequently, we affirm the summary judgment in favor of
Factual and Procedural History
2] As both parties acknowledged in their
cross-motions for summary judgment, the material facts are
not in dispute. Ryan and Amanda were married in 2006 and
purchased a house in 2010. They lived in the house with their
children continuously, except for Ryan's periodic
military deployments, until January 2013.
3] In January 2013, a petition for dissolution of
their marriage was filed. At the same time, Amanda sought,
and a magistrate imposed, a temporary protection order
against Ryan. The order forbade him from " contact of
any kind" with her and the children. The order also
required him to stay away from the house.
4] Amanda continued to live at the house until it
was listed for sale in August 2013. After leaving the house
in January 2013, Ryan stayed with a friend for a week before
moving in with another pair of friends, with whom he stayed
for at least a year thereafter. He did not sign a rental
agreement or pay regular rent at either place. Although Ryan
never lived in the Collinses' house again after January
2013 and the house was sold to a third party in October 2013,
he did not seek to change his mailing address or the address
on his driver's license until mid-2014.
5] After January 2013, virtually all communications
between Ryan and Amanda were handled through their attorneys.
She did not know his whereabouts. She bagged up his mail and
transferred it to her attorney to give to Ryan's
attorney. Amanda changed the locks and garage door opener at
the house, and she did not give Ryan the new keys or opener.
She continued making payments related to the house; he did
not. Other than a brief law enforcement-authorized visit to
the house to retrieve some personal property, Ryan did not
enter the house again.
6] The couple co-owned two vehicles: a Jeep Cherokee
and a motorcycle. Amanda kept possession of the Jeep, and
Ryan took the motorcycle while the divorce was pending. She
continued paying insurance premiums on both vehicles.
7] In February 2013, Amanda purchased a new policy
from GEICO to cover the Jeep, which only she
drove. She informed the GEICO representative
that she and Ryan were separated. She explained that she did
not consider him to be a member of her household for purposes
of the GEICO policy. In reliance on her representations,
GEICO did not consider Ryan to be a resident of Amanda's
household. Accordingly, the GEICO representative did not rate
him for coverage under the policy, did not obtain his motor
vehicle record to investigate his insurability, and entered a
computer note stating that Amanda and Ryan were "
estranged" and " separated."
8] In May 2013, Ryan was served with notice that the
temporary protection order had become permanent. The
permanent order prohibited him from any contact with Amanda
and required him to stay away from the Collinses' house.
Later in May 2013, Ryan was driving the motorcycle when he
was injured in an accident with an underinsured motor
9] In July 2013, Amanda and Ryan's divorce
became final. In an affidavit, Ryan later asserted that,
before the divorce became final, he had been " willing
to explore reconciliation possibilities" but could not
speak to Amanda. He did not assert that he had actually
wished to reconcile with her or wished to move back into the
house before his accident in May 2013. Nor did Ryan claim
that he had communicated any such intentions to Amanda
through her attorney.
10] In a deposition, Amanda acknowledged that Ryan
once contacted her to say " sorry" but she refused
to speak with him. She also said that, after the
divorce was final and she had moved out of the house in
August 2013, Ryan asked a realtor if he could move into the
house (he could not because it was listed as "
vacant" ). (Ryan did not dispute these facts.) Amanda
repeatedly and unequivocally testified that she never had any
intention to reconcile with Ryan after January 2013.
Consistent with Ryan's statement, Amanda explained that
no discussion of reconciliation ever occurred, either
directly or through their attorneys.
11] In September 2013, Ryan filed a claim with GEICO
for underinsured motorist coverage related to his May 2013
accident. He alleged that, because he had been injured while
still married to Amanda and he had not established another
permanent residence, he was an insured under the terms of the
GEICO policy issued to her. GEICO denied the claim on
the ground that Ryan was not a resident relative because he
did not reside in Amanda's household at the time of the
accident and, therefore, he was not an insured under the
Relevant GEICO Policy Provisions
12] Pursuant to the underinsured motorist provisions
of the GEICO policy, GEICO " will pay damages for bodily
injury caused by accident which the insured is legally
entitled to recover from the owner or operator of an
uninsured motor vehicle, underinsured motor vehicle or
hit-and-run auto arising out of the ownership, maintenance or
use of that auto." (Alterations omitted.) As relevant
here, " insured" means " [t]he individual
named in the declarations and his or her spouse if a resident
of the same household" or any other person using an
" owned auto" with permission.
13] As pertinent here, " [o]wned auto"
means a " vehicle described in this policy for which a
premium charge is shown for these coverages." Because
the Jeep was the only vehicle described in the GEICO policy,
the motorcycle driven by Ryan was not an " owned
auto." As a result, the only way Ryan could be entitled
to underinsured motorist coverage under the GEICO policy
would be to show that he was a " resident of the same
household" as Amanda, which would qualify him as an
District Court Proceedings
14] Among other claims, GEICO and Ryan each sought
declaratory relief by way of complaint and counterclaim on
the issue of whether he was a resident of Amanda's
household at the time of the motorcycle accident. GEICO and
Ryan filed cross-motions for summary judgment on this
coverage issue, asserting that no genuine issues of material
15] The district court concluded that GEICO had
properly denied coverage because Ryan was not a member of
Amanda's household at the time of the accident.
Therefore, the court granted summary judgment in favor of
GEICO and denied Ryan's cross-motion for summary
judgment. When denying his motion for reconsideration, the
court modified its ...