GUTHRIDGE v. TRAVELER'S PROPERTY CASUALTY COMPANY OF AMERICA
ENTRY ON MOTION FOR SUMMARY JUDGMENT: Accordingly, Defendant Travelers' motion for summary judgment is GRANTED ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge William T. Lawrence on 2/17/2012. (DW)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TRAVELER’S PROPERTY CASUALTY
COMPANY OF AMERICA,
) CAUSE NO. 1:11-cv-0209-WTL-MJD
ENTRY ON MOTION FOR SUMMARY JUDGMENT
This cause is before the Court on the Defendant’s motion for summary judgment. The
motion is fully briefed, and the Court, being duly advised, GRANTS the Defendant’s motion for
the reasons set forth below.
Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate if
“the pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” In ruling on a motion for summary judgment,
the admissible evidence presented by the non-moving party must be believed and all reasonable
inferences must be drawn in the non-movant’s favor. Hemsworth v. Quotesmith.com, Inc., 476
F.3d 487, 490 (7th Cir. 2007). The court “is not required to scour the record in search of
evidence to defeat the motion”; rather, the non-moving party must identify with reasonable
particularity the evidence upon which it relies. Id. Further, “[a] party who bears the burden of
proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by
specific factual allegations, that there is a genuine issue of material fact that requires trial.” Id.
This cause concerns whether an insurance policy provides underinsured motorist
coverage. The following facts are undisputed.
Defendant Traveler’s Property Casualty Company of America (“Traveler’s”) issued
commercial liability primary policy P-810-297X5566-COF-08 (the “Primary Policy”) and
commercial excess liability policy PSM-CUP-755G6213-TIL-08 (the “Excess Policy”) to the
insured, Wendy’s of Colorado Springs. Both policies have effective dates from July 1, 2008, to
July 1, 2009.
The Primary Policy provides commercial automobile liability coverage for vehicles
garaged in Colorado, including eighteen private passenger vehicles, thirteen light trucks, four
heavy trucks, two extra heavy trucks, and eight trailers. The Primary Policy also provides
uninsured/underinsured motorist (“UM/UIM”) coverage. The premium for the Primary Policy
was calculated based on the number of vehicles insured.
The Excess Policy provides coverage for losses in excess of the limits of specific
underlying primary policies, including the Primary Policy, a comprehensive general liability
policy, and an employee benefits liability policy. The Excess Policy specifically lists the Primary
Policy in its “Schedule of Underlying Insurance.” Section XYZ of the Excess Policy provides
coverage for “auto hazards.” Unlike the premium for the Primary Policy, which was based on the
number of insured vehicles, the premium for the Excess Policy is a flat charge.
Section (1)(3)(n) of the Excess Policy specifically excludes UM/UIM coverage: “This
insurance does not apply to: . . . (n) . . . Any liability imposed on the insured, or the insured’s
insurer, under any of the following laws: (1) Uninsured Motorists; (2) Underinsured Motorists;
(3) ‘Auto’ No-Fault laws or other first party personal injury laws; or (4) Medical Expense
Benefits and Income Loss Benefits Laws of any applicable state or jurisdiction.”
The Plaintiff-insured, Randy Guthridge, a Colorado resident, was driving a vehicle
owned by Wendy’s and registered in Colorado when he was involved in a collision with another
motorist on February 15, 2009. Following the collision, the other motorist’s liability carrier
tendered the limits of its policy and Travelers tendered the UIM limits of the Primary Policy to
Guthridge. Guthridge now brings this action against Traveler’s to recover additional damages
from the Excess Policy and Traveler’s has moved for summary judgment.
In spite of the Excess Policy’s exclusionary language, Guthridge argues that the
“(umbrella) insurance policy issued by Defendant constitutes an ‘automobile liability or motor
vehicle liability’ policy under Colorado statutory law, and thereby requires a mandatory offering
of underinsured motorist coverage with limits equal to the liability limits of the policy.”
As a preliminary matter, the parties agree that Colorado law governs Guthridge’s claim.
This Court can accept such an agreement so long as it is reasonable. E.g., Speakers of Sport, Inc.
v. ProServ, Inc., 178 F.3d 862, 864 (7th Cir. 1999). Indeed, the agreement is reasonable given
that (1) both the Primary Policy and the Excess Policy were purchased by the insured, Wendy’s,
which is domiciled in Colorado, (2) the Primary Policy and the Excess Policy were purchased
through an insurance agent located in Colorado, and (3) Plaintiff is a Colorado resident who was
driving a vehicle registered in Colorado at the time of the accident. Thus, Colorado law applies.
Colorado law requires insurers to offer UM/UIM coverage with every automobile or
motor vehicle liability policy sold in Colorado. C.R.S. 10-4-609(1)(a).1 If an insurer fails to offer
the required coverage, or if the policy holder does not reject the offered coverage in writing, the
policy will be interpreted to include UM/UIM coverage. Apodaca v. Allstate Insurance
Company, 255 P.3d 1099, 1104 (Colo. 2011) (citing Aetna Cas. & Sur. Co. v. McMichael, 906
P.2d 92, 101 (Colo. 1995)). However, the Colorado Supreme Court has held that this statute does
not apply to umbrella policies. Apodaca, 255 P.3d at 1105.
While Traveler’s proceeds on the assumption that the policy at issue is an umbrella
policy, Guthridge argues that the Excess Policy is an “automobile liability or motor vehicle
liability policy” under the meaning of the Colorado UM/UIM statute2 because (1) the underlying
commercial automobile policy insures a specific fleet of vehicles; (2) the Excess Policy lists the
underlying commercial automobile policy in the “Schedule of Underlying Insurance”; and (3)
the Excess Policy provides liability coverage for “auto hazards.”
The characterization of a policy “is not predicated on the superficial labeling or
packaging of a policy;” rather, the plain language of the policy controls. Id. at 1107. “[A] policy
governed by the UM/UIM statute is one that provides liability coverage for specific, identified
automobiles or motor vehicles.” Id. at 1105. Such policies “are inherently tethered to the
Although section 10-4-609(1)(a) refers only to owners or operators of uninsured motor
vehicles, subsection (4) explains that uninsured motorist coverage includes underinsured
Contrary to the Defendant’s interpretation, the Court does not read Guthridge’s
argument as conceding that the Excess Policy is an umbrella policy. The confusion stems from
Guthridge’s use of the shorthand phrase “(umbrella) policy” at times in his brief. However, because
Apodaca so clearly forecloses application of the statute to umbrella policies, the Court reads
Guthridge to argue that the policy at issue is an “automobile liability or motor vehicle liability
policy” under the purview of the Colorado statute.
ownership of a particular motor vehicle and the activity of driving.” Id.
Guthridge has not set forth any evidence establishing that the policy at issue falls with the
purview of the statute. Neither the underlying commercial automobile policy that is referenced in
the “Schedule of Underlying Insurance,” nor the single provision in the Excess Policy covering
“auto hazards” establishes that the Excess Policy is “inherently tethered” to the ownership of
specific motor vehicles and the activity of driving. Rather, these provisions simply (1) identify
the underlying insurance, and (2) describe the scope of merely one aspect of coverage under the
Excess Policy, coverage that also includes commercial general liability and employee benefits
liability. Thus, Guthridge has not shown that the policy at issue is an automobile liability or
motor vehicle liability policy. As the Excess Policy otherwise excludes underinsured motorist
coverage by its terms, Traveler’s motion for summary judgment is GRANTED.
This holding is further bolstered by undisputed facts produced by Traveler’s. Traveler’s
has shown that (1) the premium for the Excess Policy was a flat charge not based on the number
of insured vehicles; and (2) the Excess Policy covers three separate policies, which together
provide commercial general liability, employee benefits liability, and automobile liability
coverage. This facts render the policy at issue indistinguishable from the umbrella policy at issue
in Apodaca, which the Colorado Supreme Court held did not constitute an “automobile liability
or motor vehicle liability policy.” 255 P.3d at 1105. Umbrella policies are not inherently tied to
particular motor vehicles or the activity of driving, calculate basic liability premiums without
respect to specific aspects of the policyholder’s automobiles or their use, and provide a broad
“umbrella” of general excess third-party coverage to protect the insured from catastrophic
liability coverage should the insured incur legal liability to others. Id.
Plaintiff Randy Guthridge has failed to establish that the policy at issue is an “automobile
liability or motor vehicle liability policy” within the purview of Colorado Statute 10-4-609. The
policy at issue otherwise explicitly excludes underinsured motorist coverage. Accordingly,
Defendant Travelers’ motion for summary judgment is GRANTED.
SO ORDERED: 02/17/2012
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
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