By: Alan Schindler, Esq. and Anna Goldman, Esq.
The Court of Appeals finds “excluded from coverage” means excluded from coverage.
Farmers Ins. Exch. V. Kretzer , 2023COA94
Division Vi, Opinion by Judge Welling, Judge Lipinksy and Judge Gomez concur
Decision: Affirmed
Procedure: On appeal from District Court, Larimer County, Judge Gregory M. Lammons
Factual Background and District Court Holding:
In this insurance coverage dispute, Farmers Insurance sought a declaration that it was not required to provide uninsured and underinsured Medpay benefits to a member of the insured’s household who was subject to a “Named Driver Exclusion Endorsement” and was identified as “Excluded” on the declaration page of the insured’s policy. The “excluded” member was injured while using a vehicle not listed on the policy. The district court granted summary judgment for the plaintiff, ruling that the insurance policy unambiguously excluded one of the defendants from coverage and that the exclusion is not prohibited by statute.
Issue: Whether the insurance policy was ambiguous and prohibited by statute.
The Court first addressed whether the insurance policy, taken as a whole, was ambiguous as to the scope of the exclusion endorsement. When “an insurer seeks to restrict coverage, the limitation must be clearly expressed.” Ryder Truck Rental, Inc. v. Guar. Nat’l Ins. Co ., 770 P.2d 1380, 1382 (Colo. App. 1989). Here, the policy’s “Declaration Page” contains a “Household Drivers” section, which provides that one defendant is “Covered” and the other defendant is “Excluded.” Further, under the section related to bodily injury or property damage as a result of an accident, the policy expressly states that an ““[i]nsured person does not mean . . . [a]ny named excluded driver.”
Colorado law permits an insurer “to exclude from coverage, by name, [any] person whose claim experience or driving record would have justified the cancellation or nonrenewal” of an automobile liability insurance policy under which more than one person is insured. § 10-4-630(1). Under this statute, insurance providers are authorized to exclude all coverage, which is precisely what the plaintiff did in this case. Following, the Court held that the insurance policy at issue unambiguously excludes the injured household member from coverage under these circumstances.
The Court then addressed whether, under section 10-4-630(2), named driver exclusions apply only when a claim arises out of the operation or use of an insured motor vehicle listed on the policy. Citing Massingill v. State Farm Mutual Automobile Insurance Co., 176 P.3d 816, 819 (Colo. App. 2007), the Court ruled that interpreting section 10-4-630(2) this way produces “illogical,” “unreasonable,” and “absurd” results. The Court further rejected the defendants’ argument that interpreting an exclusion to apply when a purportedly excluded household member is using a vehicle not listed on a policy violates section 10-4-630(2).
Book Banning Comes to Gunnison County, Colorado
Brookhart v. Reaman , 2023COA93
Division Vi, Opinion by Judge Lipinsky, Judge Shutz concurs and Judge Taubman dissents
Decision: Affirmed
Procedure: On appeal from District Court, Gunnison County, Judge J. Steven Patrick
Factual Background and District Court Holding:
Four individuals asked the plaintiff, a public library in Gunnison County, to remove a book titled “Gender Queer: A Memoir” from its shelves or, alternatively, to prevent children from accessing it. The individuals used the plaintiff’s “Request for Reconsideration of Materials” form (the reconsideration form) to submit their requests. The defendant, the editor of a newspaper, submitted a request under the Colorado Open Records Act, §§ 24-72-200.1 to -205.5, C.R.S. 2023 (CORA), to the library district to obtain unredacted copies of the individuals’ reconsideration forms. The library district responded by filing this case in district court under section 24-72-204(6)(a), C.R.S. 2023, to obtain guidance on how it should respond to the CORA request. That statute allows “the official custodian of any public record” to “apply to the district court of the district in which such record is located for an order permitting him or her to restrict . . . disclosure [of the record] or for the court to determine if disclosure is prohibited,” if, for purposes of this case, “the official custodian is unable, in good faith, after exercising reasonable diligence, and after reasonable inquiry, to determine if disclosure of the public record is prohibited” under CORA. § 24-72-204(6)(a). The district court entered an order holding that the editor was entitled to obtain the reconsideration forms, but only with the individuals’ identifying information redacted. The editor appealed the judgment. The library agreed with the editor’s position but was unsure whether they could disclose the unredacted reconsideration forms under section 24-72-204(6)(a).
Issue: Whether the library was required to keep the individuals’ identifying information confidential under section 24-90-119(1).
The Court addressed the narrow issue of whether CORA section 24-90-119(1) required the library to keep the individuals’ identifying information confidential. Section 24-72-204(3)(a)(VII) links section 24-90-119(1) to CORA, providing that a records custodian shall deny disclosure of “[l]ibrary records disclosing the identify of a user as prohibited by section 24-90-119.” This case involves the apparent conflict between two principles embodied in the Colorado Revised Statutes: the mandate that “all public records . . . be open for inspection by any person at reasonable times,” except as “specifically provided by law,” § 24-72-201, C.R.S. 2023, and library users’ right of privacy protected through section 24-90-119(1).
The Court first noted that both parties agreed the editor should receive unredacted copies of the reconsideration forms. The Court found even though the parties agreed, the Court had jurisdiction over the issue because the appeal implicates the unresolved issue of the editor’s entitlement to receive, and the library’s duty to disclose, unredacted versions of the individuals’ reconsideration forms.
After agreeing with the parties that the reconsideration forms qualified as “public records” under CORA, the Court interpreted the term “user” in section 24-72-204(3)(a)(VII) to be inclusive of any person using library services. Section 24-72-204(3)(a)(VII) unequivocally provides that a library “user” is a person who satisfies the requirements of section 24-90-119: a “person [who] requested or obtained specific materials or service or . . . otherwise . . . used the library.” § 24-90-119(1). Thus, if a person’s identifying information is protected under any clause of section 24-90-119(1), such information is necessarily exempt from disclosure under CORA pursuant to section 24-72-204(3)(a)(VII).
Following, the Court held that the identifying information in the requesters’ reconsideration forms may not be disclosed under the second category of section 24-90-119(1): persons who “requested or obtained [a] specific . . . service.”
Dissent:
In his dissent, Judge Taubman posited because the library changed its position on appeal to argue that the identifying information should be disclosed, there was no case or controversy between the parties, and therefore the appeal should be dismissed, and the district court’s judgment should be vacated.
