and County of Denver District Court No. 17CV33797 Honorable
Robert L. McGahey, Jr., Judge
Killian Davis Richter & Mayle, PC, Nicholas W. Mayle,
Damon Davis, Grand Junction, Colorado, for
Rider Riter Tsai, P.C., Sophia H. Tsai, Kelly L. Kafer,
Denver, Colorado, for Defendant-Appellee
1 In this uninsured/underinsured motorist (UM/UIM) benefits
case, plaintiff, Kent Ryser, appeals the summary judgment
entered in favor of defendant, Shelter Mutual Insurance
Company, based on the exclusivity provision of the
Workers' Compensation Act of Colorado (WCA), section
8-41-102, C.R.S. 2018, and the related co-employee immunity
rule. The case requires us to decide whether this immunity
bars a person who was injured in the course and scope of
employment by a co-employee's negligence in driving a car
from receiving UM/UIM benefits under an insurance policy
maintained by another co-employee who owned the
Because of the tortfeasor's coworker immunity, we
conclude that Ryser cannot satisfy the UM/UIM statutory
requirement of being "legally entitled to recover."
On this basis, we affirm the summary judgment.
Undisputed Facts and Procedural Background
2 Ryser suffered serious injuries in a one-car accident.
Sherri Babion owned the car. Linda Forster was driving, with
Babion's permission. Ryser was a passenger, also with her
permission. When the accident occurred, all three of them
were Walmart employees acting in the course and scope of
their employment. According to Ryser, Forster's
negligence caused his injuries.
3 Babion maintained an auto insurance policy written by
Shelter. The policy provided UM/UIM coverage. Because Forster
was driving with Babion's consent and Ryser was a
permitted passenger, they were both insured under the policy.
But the policy's UM/UIM coverage applied only where
"the owner or operator of an uninsured/underinsured
motor vehicle is legally obligated to pay damages." As
well, the policy excluded from the definition of
uninsured/underinsured motor vehicle "[t]he described
auto," i.e., Babion's car.
4 Ryser received workers' compensation benefits. He also
obtained UM/UIM benefits under his own auto policy on the
basis that the co-employee immunity rule rendered Forster an
uninsured motorist. Still, he claimed UM/UIM benefits from
Shelter to the extent that Babion's UM/UIM coverage had a
higher limit than his own policy.
5 When Shelter rejected the claim, Ryser brought this action
for UM/UIM benefits. He also raised statutory bad faith and
unreasonable delay and denial of benefits claims, along with
a common law bad faith claim.
6 Shelter moved for summary judgment. It argued that
Forster's co-employee immunity precluded the claim, as
did the exclusion of Babion's car from UM/UIM coverage.
For purposes of summary judgment, it did not contest that
Ryser had been injured or that Forster's negligence had
caused his injuries.
7 Ryser opposed Shelter's motion on the described auto
exclusion and filed a cross-motion for partial summary
judgment on the co-employee immunity question. He did not
assert any negligence as to Babion.
8 Neither party opposed the other's motion based on
disputed issues of material fact. Nor was the co-employee
immunity of Forster disputed.
9 In a written order, the trial court ruled for Shelter and
against Ryser based on co-employee immunity, thus ending the
case. The court did not address the described auto exclusion.
On appeal, Shelter concedes preservation.
Standard of Review
10 Summary judgment is reviewed de novo, applying the same
standard as the trial court. City of Fort Collins v.
Colo. Oil & Gas Ass'n, 2016 CO 28, ¶ 9. It
is appropriate only when no genuine issue of material fact
exists and the moving party is entitled to judgment as a
matter of law. C.R.C.P. 56(c); Martini v. Smith, 42
P.3d 629, 632 (Colo. 2002). The opposing party is entitled to
the benefit of all favorable inferences that may reasonably
be drawn from the undisputed facts, and all doubts as to the
existence of a triable issue of fact must be resolved against
the moving party. Martini, 42 P.3d at 632.
11 Statutory interpretation is a question of law that is also
reviewed de novo. Cont'l Divide Ins. Co. v.
Dickinson, 179 P.3d 202, 204 (Colo.App. 2007). So is the
interpretation of an insurance policy. Smith v. State
Farm Mut. Auto. Ins. Co., 2017 COA 6, ¶ 5.
12 Although earlier decisions from divisions of this court
are not binding on another division, "the later division
should give the prior decision some deference."
People v. Oliver, 2018 COA 146, ¶ 24 n.1
(quoting People v. Bondsteel, 2015 COA 165, ¶
13 In Colorado, statutes regulate UM/UIM coverage. Under
section 10-4-609(1)(a), C.R.S. 2018, auto insurers must offer
UM/UIM coverage with all liability policies covering the same
class of persons who are included in the liability
provisions. UM/UIM benefits are available only to persons who
are "legally entitled to recover." Id.
This phrase is not defined. Coverage extends to permissive
users. § 10-4-620, C.R.S. 2018.
14 Nor do the statutes define "uninsured motorist"
or "uninsured automobile." An
"underinsured" motor vehicle is defined as "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." § 10-4-609(4). Under that
section, "[u]ninsured 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."