Scoggins v. Unigard Insurance Co.

Judge JONES

dissenting.

I respectfully dissent.

Scoggins points out that even though none of the relevant provisions of § 10-4-707(1), C.R.S. (1987 Repl.Vol. 4A) applies to her, nevertheless, § 10-4-707(4), C.R.S. (1987 Repl.Vol. 4A) mandates her qualification for PIP benefits. I agree that she should be provided PIP benefits under the policy issued to the parents of Martinez.

Section 10-4-707(3), C.R.S. (1987 Repl. Vol. 4A) provides in part:

Except as provided in subsection (4) of this section, when a person insured is also an insured under a complying policy other than the complying policy insuring the vehicle out of the use of which the accident arose, primary coverage shall be afforded by the policy insuring said vehicle under § 10-4-706_

Section 10-4-707(4), C.R.S. (1987 Repl. Vol. 4A) provides in part:

When an accident involves the operation of a motor vehicle by a person who is neither the owner of the motor vehicle involved in the accident nor an employee of the owner, and the operator of the motor vehicle is an insured under a complying policy other than the complying policy insuring the motor vehicle involved in the accident, primary coverage as to all coverages provided in the policy under which the operator is an insured shall be afforded by the policy insuring the said operator, except as provided in subsection (6) of this section, and any policy under which the owner is an insured shall afford excess coverage.

Sections 10-4-707(3) and (4) coordinate benefits when an injured person would qualify for coverage, pursuant to § 10-4-707(1), under several different no-fault policies. Tate v. Industrial Claims Appeals Office, 815 P.2d 15 (Colo.1991).

The provisions of the No-fault Act are designed to accomplish multiple purposes, which include assuring that accident victims receive adequate compensation and limiting the number of common law tort actions that may be commenced. Hence, that statute must be liberally construed in light of its entire statutory scheme. Murphy v. Dairyland Insurance Co., 747 P.2d 691 (Colo.App.1987).

Unigard concedes that, if it is assumed that each individual in the vehicle had a complying policy under the No-fault Act, then § 10-4-707(4) would render the parents’ primary over the policy of the owner. However, under the interpretation advanced by Unigard, because of the fortuitous event that the owner of the vehicle was not insured, no coverage for PIP benefits is available to Scoggins. Further, under Unigard’s interpretation, one of the purposes of the No-Fault Act — assuring that accident victims receive adequate compensation — is frustrated.

In interpreting a statute, our purpose is to determine the intent of the General Assembly. In light of the legislative purpose to avoid inadequate compensation to victims of automobile accidents, § 10-4-702, C.R.S. (1987 Repl.Vol. 4A), I conclude that the policy of Martinez’ parents is the primary policy, albeit the only one, under the provisions of § 10-4-707(4) and that Scog-gins is entitled to PIP benefits under that policy.

Thus, I would affirm the judgment of the trial court.