Atencio v. Mid-Century Insurance Co. , 1980 Colo. App. LEXIS 748 ( 1980 )

PIERCE, Judge,

dissenting:

I do not agree with the majority’s interpretation of Newton v. Nationwide Mutual Fire Insurance Co., 197 Colo. 462, 594 P.2d 1042 (1979). I think it is significant that the court stated:

“[T]he ‘No Fault’ statute does not favor ‘double recovery’ of PIP benefits by the insured,”

and went on to say that:

“The proper method to preclude the possibility of recovery under PIP-type losses under both PIP and uninsured motorist coverages, would be to eliminate PIP paid benefits from the uninsured motorist claim, then allow recovery of the uninsured motorist benefits to the extent non-PIP benefits are proved, up to the policy limits.” (emphasis in original)

Although this statement may be dictum, I consider it to be instructive.

Because the arbitrator here subtracted the amount of PIP benefits paid from the total amount of damages of $19,564 rather than from the $15,000 limit of the appellant’s liability under the uninsured motorist clause, this arbitration award was arrived at in precisely the manner suggested by the court in Newton, and therefore did not constitute an error of law.

The “no fault” statute was in effect at the time this case was tried and its provisions are controlling here. The Supreme Court, in overruling the Court of Appeals in Newton, stated that this court had misinterpreted the statute. Where the Supreme Court has declared the public policy governing a statute that was in effect at the time the operative facts in a case occurred, then that public policy should be applied retroactively to correct the error made by the Court of Appeals. Ohio Casualty Insurance Co. v. Guaranty National Insurance Co., 197 Colo. 264, 592 P.2d 397 (1979). See Guaranty National Insurance Co. v. Ohio Casualty Insurance Co., 40 Colo.App. 494, 580 P.2d 41 (1978).

I would reverse the judgment and remand the cause to the trial court with directions to reinstate the arbitrator’s award.