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Airth v. Zurich American Insurance Co.

Court of Appeals of Colorado, Second Division

January 25, 2018

Rickey Airth, Plaintiff-Appellant,
v.
Zurich American Insurance Company, an Illinois corporation, Defendant-Appellee.

         City and County of Denver District Court No. 16CV30510 Honorable Jay S. Grant, Judge

          Law Firm of William Babich, LLC, William Babich, Denver, Colorado, for Plaintiff-Appellant

          Spies, Powers & Robinson, P.C., Jack D. Robinson, Ursula J. Honigman, Denver, Colorado, for Defendant-Appellee

          DAILEY JUDGE

         ¶ 1 In this claim for uninsured/underinsured motorist (UM/UIM) benefits, plaintiff, Rickey Airth, appeals the district court's entry of summary judgment in favor of defendant, Zurich American Insurance Company (Zurich). We affirm.

         I. Background

         ¶ 2 Airth was seriously injured in an accident while operating a semitruck owned by his employer, Sole Transport LLC, doing business as Solar Transport Company (Solar). He had been struck by a negligent, uninsured driver.

         ¶ 3 Solar had UM/UIM insurance coverage of $50, 000 for its employees through a policy issued by Zurich.

         ¶ 4 Airth brought a claim for declaratory relief seeking to reform Solar's policy to provide UM/UIM coverage of $1, 000, 000. He alleged in his complaint that he was entitled to the higher amount of coverage because Zurich had failed, as required by section 10-4-609, C.R.S. 2017, to (1) offer Solar UM/UIM coverage in an amount equal to its bodily injury liability coverage (i.e., $1, 000, 000) and (2) produce a written rejection by Solar of such an offer of UM/UIM coverage.

          ¶ 5 On cross-motions for summary judgment, the district court entered judgment for Zurich, ruling, as a matter of law, that

. Zurich's documents "put [Solar] on notice sufficient so that [it] could make an intelligent decision in opting to not obtain more coverage, and satisfied [Zurich's] duty to offer coverage to Solar, "[1] and adequately offered Solar UM/UIM coverage in an amount equal to the bodily injury liability limits of the policy; and
. "[t]here is no requirement that the rejection of UM/UIM limits in an amount equal to liability limits must be in writing."

         ¶ 6 On appeal, Airth contends that the district court's rulings on both issues were incorrect, and that the court therefore erred in granting Zurich's motion for summary judgment and denying his cross-motion.[2]

         II. Analysis

         ¶ 7 Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Geiger v. Am. Standard Ins. Co. of Wis., 192 P.3d 480, 482 (Colo.App. 2008). We review a grant or denial of summary judgment de novo. Id.

         ¶ 8 The "offer" and "rejection" issues presented on appeal turn on either an application or interpretation of subsections 10-4-609(1)(a) and (2), the texts of which are set forth in Appendix A to this opinion.

         ¶ 9 Subsection 10-4-609(1)(a) prohibits an insurer from issuing an automobile liability policy unless a minimum amount of UM/UIM coverage is included in the policy, except where the named insured rejects UM/UIM coverage in writing.[3] Subsection 10-4-609(2) requires an insurer, "[b]efore the policy is issued or renewed, " to "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."

         A. Facts

         ¶ 10 The facts are undisputed.

         ¶ 11 Prior to the renewal of Solar's policy, Zurich sent Solar correspondence along with a package of documents pertaining to Solar's rights related to UM/UIM coverage under the laws of all fifty states. A person representing himself as ...


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