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Geico Casualty Co. v. Collins

Court of Appeals of Colorado, Sixth Division

February 25, 2016

GEICO Casualty Company, Plaintiff-Appellee,
v.
Ryan D. Collins, Defendant-Appellant

          El Paso County District Court No. 14CV30936. Honorable G. David Miller, Judge.

         Deisch, Marion & Klaus, P.C., Gregory K. Falls, Denver, Colorado, for Plaintiff-Appellee.

         The Rector Law Firm, L. Dan Rector, Terry E. Rector, Colorado Springs, Colorado, for Defendant-Appellant.

          OPINION

         NAVARRO, JUDGE.

         [¶ 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.[1] 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 GEICO.

         I. Factual and Procedural History

         A. Relevant Facts

         [¶ 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.[2] 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.[3] 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 vehicle.

         [¶ 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.[4] 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 policy.

         B. 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 insured.

         C. 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 fact exist.

         [¶ 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 ...


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