COLORADO COURT OF APPEALS                                          2017COA67


Court of Appeals No. 16CA0822
City and County of Denver District Court No. 15CV33216
Honorable Morris B. Hoffman, Judge


American Family Mutual Insurance Company,

Plaintiff-Appellee,

v.

Omar Ashour,

Defendant-Appellant.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                  Division VI
                        Opinion by CHIEF JUDGE LOEB
                        Kapelke* and Vogt*, JJ., concur

                           Announced May 18, 2017


Campbell Latiolais Averbach, LLC, Robyn B. Averbach, Colin C. Campbell,
Denver, Colorado, for Plaintiff-Appellee

Blanton Law Firm, Michael W. Blanton, Evergreen, Colorado; Gerash Steiner,
P.C., Daniel P. Gerash, Eric L. Steiner, Denver, Colorado, for Defendant-
Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1    In this insurance coverage action for declaratory judgment,

 defendant, Omar Ashour, appeals the district court’s denial of his

 motion for summary judgment and its entry of summary judgment

 in favor of plaintiff, American Family Mutual Insurance Company

 (AFI). Ashour contends that the district court erred by ruling, as a

 matter of law, that his claim for underinsured motorist (UIM)

 coverage under his automobile insurance policy with AFI was

 precluded because he was not legally entitled to sue his employer or

 co-employee in tort for his injuries based on their immunity under

 the Workers’ Compensation Act of Colorado (the Act). We agree

 with Ashour, reverse the judgment of the district court in favor of

 AFI, and remand with directions for entry of summary judgment in

 favor of Ashour.

              I.    Background and Procedural History

¶2    Ashour is an employee and co-owner of Nubilt Restoration &

 Construction (Nubilt). While employed with Nubilt, Ashour was

 severely injured when he was pinned by a thirty-foot truck to a

 nearby tractor-trailer. The accident was caused by the negligence

 of his co-employee, Rebecca Peake, who failed to set the airbrake on




                                   1
 the truck that rolled backward and pinned Ashour to the other

 vehicle.1

¶3    After the accident, Ashour submitted a claim to Nubilt’s

 workers’ compensation carrier and subsequently received benefits.

 He also submitted a claim to Nubilt’s corporate liability insurance

 provider and received a settlement for that claim based on a policy

 rider that allowed for coverage of workplace injuries. Ashour then

 made a claim under his personal automobile insurance policy with

 AFI for UIM benefits to recover the remainder of his alleged

 damages.

¶4    After receiving Ashour’s claim, AFI filed this action in district

 court seeking a declaratory judgment as to whether Ashour was

 owed UIM coverage when the plain language in the policy limited

 UIM benefits to those situations in which the insured was “legally

 entitled to recover” from the owner or operator of an uninsured or

 underinsured motor vehicle. AFI alleged that the Act provided

 Ashour with his exclusive remedy for damages and that, because

 the Act immunized Nubilt and Peake from tort suits brought by


 1 Peake was cited by the Colorado State Patrol for careless driving
 resulting in bodily injury.

                                    2
 Ashour for work-related injuries, Ashour was not “legally entitled to

 recover” under the AFI UIM policy.

¶5    In his answer, Ashour alleged that the phrase “legally entitled

 to recover” had been interpreted by Colorado courts to mean that

 an insured must only establish fault of the party causing the injury

 (the tortfeasor) and the extent of the insured’s damages, and that,

 accordingly, he was not required to show that he could proceed with

 a lawsuit against the tortfeasor(s). Ashour asserted as an

 affirmative defense that AFI was, therefore, estopped from denying

 coverage on the basis of the policy’s “legally entitled to recover”

 language.

¶6    Subsequently, Ashour filed a motion for summary judgment,

 relying on Borjas v. State Farm Mutual Automobile Insurance Co., 33

 P.3d 1265 (Colo. App. 2001), in which a division of this court

 defined the phrase “legally entitled to recover” and ultimately

 concluded that an insured was “legally entitled to recover” even

 when the tortfeasor was immune from suit under the Colorado

 Governmental Immunity Act (CGIA). In its response to Ashour’s

 motion for summary judgment, AFI distinguished Borjas and

 instead relied on Continental Divide Insurance Co. v. Dickinson, 179


                                    3
 P.3d 202 (Colo. App. 2007), in which another division of this court

 concluded that an independent contractor subject to a limited

 recovery provision in the Act was not entitled to claim benefits

 under his employer’s UIM policy.

¶7    The district court agreed with AFI’s interpretation of Colorado

 law and, in a written order, concluded that Dickinson was

 dispositive of Ashour’s claim if Peake had acted within the scope

 and course of her employment. At the conclusion of its order, the

 district court denied Ashour’s motion for summary judgment and

 allowed the case to proceed for a determination of whether Peake

 had been acting within the course and scope of her employment at

 the time of the accident.

¶8    Several weeks later, AFI filed its own motion for summary

 judgment asserting that, as a matter of law, Peake had been acting

 within the course and scope of her employment. After full briefing

 by both parties, the court entered a second written order,

 reaffirming its prior order on the coverage issue and concluding on

 undisputed facts that Peake was acting within the course and scope

 of her employment at the time of Ashour’s accident. Accordingly,

 the court granted AFI’s motion for summary judgment and declared


                                    4
  that AFI was not obligated under Ashour’s policy to pay Ashour UIM

  benefits.

¶9     Ashour now appeals. Specifically, he challenges the district

  court’s conclusion that he was not entitled to UIM benefits under

  his own insurance policy with AFI based on the immunity provided

  to Peake and Nubilt under the Act. He does not appeal the court’s

  ruling that Peake was acting within the course and scope of her

  employment.

                         II.   Standard of Review

¶ 10   We review the grant of a summary judgment motion de novo.

  W. Elk Ranch, L.L.C. v. United States, 65 P.3d 479, 481 (Colo. 2002).

  In reviewing a motion for summary judgment, the nonmoving party

  is afforded all favorable inferences that may be drawn from the

  allegedly undisputed facts. City of Longmont v. Colo. Oil & Gas

  Ass’n, 2016 CO 29, ¶ 8 (citing Bebo Constr. Co. v. Mattox & O’Brien,

  P.C., 990 P.2d 78, 83 (Colo. 1999)).

¶ 11   For our review, we apply the same standard as the district

  court. Id. at ¶ 9. “Thus, our task on review is to determine whether

  . . . the district court correctly applied the law” when it ruled that

  Ashour was barred from receiving UIM benefits from AFI because he


                                      5
  was not legally entitled to recover against his employer or co-

  employee under the Act. Id. In doing so, we review the district

  court’s legal conclusions de novo. Id.

                          III.   Applicable Law

¶ 12   This case involves the application and interaction of two

  bodies of Colorado law: workers’ compensation and uninsured or

  underinsured motorist (UM/UIM) coverage.

                   A.    Workers’ Compensation Law

¶ 13   The purposes of the Act are to protect employees who suffer

  injuries arising from their employment and to give injured workers

  a reliable source of compensation for their injuries. Engelbrecht v.

  Hartford Accident & Indem. Co., 680 P.2d 231, 233 (Colo. 1984).

  Employers subject to the Act, including Nubilt, are required to

  secure insurance to cover their employees’ claims for work-related

  injury. § 8-44-101(1), C.R.S. 2016.

¶ 14   An employer who has complied with the Act

            shall not be subject to the provisions of section
            8-41-101; nor shall such employer or the
            insurance carrier, if any, insuring the
            employer’s liability under said articles be
            subject to any other liability for the death of or
            personal injury to any employee . . . ; and all
            causes of action, actions at law, suits in


                                     6
            equity, proceedings, and statutory and
            common law rights and remedies for and on
            account of such . . . personal injury to any
            such employee and accruing to any person are
            abolished except as provided in said articles.

  § 8-41-102, C.R.S. 2016. There is no dispute that Nubilt was in

  compliance with the Act at the time of Ashour’s accident and that

  Ashour has received workers’ compensation benefits as a result of

  the accident.

¶ 15   Similarly, when an employer complies with the Act, such

  compliance is construed as

            a surrender by the employer, such employer’s
            insurance carrier, and the employee of their
            rights to any method, form, or amount of
            compensation or determination thereof or to
            any cause of action, action at law, suit in
            equity, or statutory or common-law right,
            remedy, or proceeding for or on account of
            such personal injuries . . . of such employee
            other than as provided in said articles, and
            shall be an acceptance of all the provisions of
            said articles, and shall bind the employee
            personally.

  § 8-41-104, C.R.S. 2016. Thus, Nubilt and its workers’

  compensation insurance carrier are immune from suit by Ashour

  for his injuries sustained in the course and scope of his

  employment.



                                    7
¶ 16   By extension, co-employees are also immune from suit for

  injuries to a fellow employee arising out of the scope of employment.

  Kandt v. Evans, 645 P.2d 1300, 1304-05 (Colo. 1982). Thus, here,

  Peake is also immune from suit.

¶ 17   The immunity from suit provided by the Act is often referred to

  as the exclusivity provisions because the Act has been interpreted

  to provide the exclusive remedy to a covered employee for injuries

  sustained while the employee is performing services arising in the

  course of his or her employment. Horodyskyj v. Karanian, 32 P.3d

  470, 474 (Colo. 2001) (“The exclusive-remedy provisions of the Act

  bar civil actions in tort against an employer for injuries that are

  compensable under the Act.” (citing §§ 8-41-102, -104)). However,

  this exclusive remedy is limited to suits by an injured employee

  against his or her employer or co-employee; an injured employee

  may receive workers’ compensation benefits and bring suit against

  a third-party tortfeasor. See § 8-41-203(1)(a), C.R.S. 2016; Frohlick

  Crane Serv., Inc. v. Mack, 182 Colo. 34, 38, 510 P.2d 891, 893

  (1973) (The “Act is not to shield third-party tort-feasors [sic] from

  liability for damages resulting from their negligence.”); see also

  Aetna Cas. & Sur. Co. v. McMichael, 906 P.2d 92, 100 (Colo. 1995).


                                     8
¶ 18      Thus, the Act’s exclusivity provisions can be summarized this

  way: the workers’ compensation system is an agreement by

  employers to provide benefits to employees, regardless of fault, and

  in exchange for assuming that burden, the employer is immunized

  from tort claims for injuries to its employees. § 8-40-102(1), C.R.S.

  2016 (“[T]he workers’ compensation system in Colorado is based on

  a mutual renunciation of common law rights and defenses by

  employers and employees alike.”); People v. Oliver, 2016 COA 180M,

  ¶ 22.

                              B.    UM/UIM Law

¶ 19      Colorado law requires that all automobile insurance policies

  insuring against loss resulting from bodily injury or death must

  provide UM/UIM coverage. § 10-4-609(1)(a), C.R.S. 2016. The

  statute sets out specific requirements for UM/UIM insurance

  policies, and if a policy violates those mandatory coverage

  requirements, courts will read those requirements into the policy.

  McMichael, 906 P.2d at 101.

¶ 20      Specifically, UIM coverage is intended to cover the difference, if

  any, between the amount of the limits of a tortfeasor’s legal liability

  coverage and the amount of the damages sustained by the injured


                                       9
  party, up to the policy limits. § 10-4-609(1)(c). A division of this

  court has interpreted this subsection to mean that an insurer’s

  obligation to pay UIM benefits is “triggered by exhaustion of the

  tortfeasor’s ‘limits of . . . legal liability coverage,’ not necessarily any

  payment from or judgment against the tortfeasor.” Jordan v. Safeco

  Ins. Co. of Am., Inc., 2013 COA 47, ¶ 29 (alteration in original)

  (citation omitted).

¶ 21   As relevant here, Colorado law limits UM/UIM coverage to

  “protection of persons insured thereunder who are legally entitled to

  recover damages from owners or operators of uninsured motor

  vehicles because of bodily injury, sickness, or disease, including

  death, resulting therefrom.” § 10-4-609(1)(a) (emphasis added).

  The statute also provides for payment of benefits when the party at

  fault is underinsured:

             Uninsured 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. An underinsured motor vehicle is 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
  § 10-4-609(4) (emphasis added).2 AFI’s policy tracks the “legally

  entitled to recover” language of the statute and explicitly provides

  coverage for underinsured vehicles: “We will pay compensatory

  damages for bodily injury which an insured person is legally

  entitled to recover from the owner or operator of an uninsured motor

  vehicle or an underinsured motor vehicle.” (Emphasis added.)

¶ 22   At issue in this case is the phrase “legally entitled to recover.”

  Colorado courts have considered the meaning of “legally entitled”

  language in the past, albeit not under the precise circumstances at

  issue in this case. For example, in Newton v. Nationwide Mutual

  Fire Insurance Co., in the context of deciding whether the insurer

  was entitled to reduce the UIM benefits paid to the insured by the

  amount of personal injury protection benefits paid out under the

  same policy, the supreme court stated that “[u]ninsured motorist

  recovery is available only to persons ‘legally entitled to recover

  2 While the statutory language in subsections (1)(a) and (4) varies
  slightly, we conclude there is no legally significant difference
  between the phrase “legally entitled to recover” and “legally entitled
  to collect.” See Borjas v. State Farm Mut. Auto. Ins. Co., 33 P.3d
  1265, 1267 (Colo. App. 2001) (analyzing a policy with language
  “legally entitled to collect” against a statutory provision with the
  phrase “legally entitled to recover” without distinguishing between
  those phrases); see also State Farm Mut. Auto. Ins. Co. v. Slusher,
  325 S.W.3d 318, 324 n.12 (Ky. 2010).

                                     11
  damages from owners or operators of uninsured motor vehicles.’”

  197 Colo. 462, 465, 594 P.2d 1042, 1043 (1979) (citation omitted).

  “Thus a claimant may not obtain payment under uninsured

  motorist coverage without first establishing that the uninsured

  motorist’s fault, normally negligence, caused the collision.” Id.

  (emphasis added). This fault-based concept was again articulated

  in DeHerrera v. Sentry Insurance Co., 30 P.3d 167, 173-74 (Colo.

  2001), in which the supreme court, in analyzing section 10-4-

  609(1)(a), interpreted subsection (1)(a) to mean that “an insured is

  entitled to recover UM/UIM benefits when a person who is at fault

  in an accident does not have any liability insurance” or is

  underinsured.

            C.   Interaction Between the Act and UIM Coverage

¶ 23     The “legally entitled to recover” requirement is central to this

  case because of the immunity provided to employers and co-

  employees under the exclusivity provisions of the Act. The precise

  question before us is whether Ashour is “legally entitled to recover”

  under the meaning of the UM/UIM statute when he cannot sue

  Nubilt or Peake, the tortfeasors, due to their immunity under the

  Act.


                                      12
¶ 24   Colorado courts have considered the interaction between the

  Act and the UM/UIM statute in very few instances. In a basic

  sense, courts have noted that claims for UM/UIM benefits and

  claims for workers’ compensation benefits are independent of one

  another. Benson v. Colo. Comp. Ins. Auth., 870 P.2d 624, 626 (Colo.

  App. 1994) (“We conclude that the trial court is the proper forum for

  resolution of plaintiff’s claim for uninsured motorist benefits and

  that this claim is independent of any workers’ compensation

  claim.”).

¶ 25   In McMichael, where an employee was injured on the job by a

  third-party tortfeasor who was underinsured, the Colorado

  Supreme Court held that the injured employee was entitled to

  benefits under both workers’ compensation and his employer’s UIM

  policy because “[t]he [UIM] benefits do not constitute workers’

  compensation benefits and do not result because of a suit brought

  by McMichael against [his employer].” McMichael, 906 P.2d at 100.

  That case, however, did not involve a claim for UIM benefits under

  the injured worker’s personal UIM policy.

¶ 26   Colorado courts have also tended to be protective of the

  benefits provided by UM/UIM coverage. For example, an insurance


                                    13
  policy provision for the reduction of UIM benefits by the amount

  paid by workers’ compensation is void. Nationwide Mut. Ins. Co. v.

  Hillyer, 32 Colo. App. 163, 165, 509 P.2d 810, 811 (1973).

  Colorado law also does not allow UIM benefits to be offset by any

  other coverage, including workers’ compensation benefits. § 10-4-

  609(1)(c); see also Adamscheck v. Am. Family Mut. Ins. Co., 818 F.3d

  576, 583-84 (10th Cir. 2016) (citing Hillyer, 32 Colo. App. at 165,

  509 P.2d at 811) (compiling Colorado cases allowing recovery in

  addition to workers’ compensation benefits without offset).

       D.    Borjas: UM/UIM Coverage and Sovereign Immunity

¶ 27   We now turn to an analysis of Borjas, the case relied on by

  Ashour and distinguished by AFI and the district court.

¶ 28   In Borjas, a division of this court concluded that a tortfeasor’s

  immunity under the CGIA did not bar an injured party from

  recovering UM/UIM benefits from her own insurer because the

  phrase “legally entitled to recover damages,” as used in section 10-

  4-609, simply “means that the insured must be able to establish

  that the fault of the uninsured motorist gave rise to damages and

  the extent of those damages.” Borjas, 33 P.3d at 1269. The




                                    14
  immunity of the uninsured tortfeasor under the CGIA was, thus,

  irrelevant for purposes of UM/UIM coverage.

¶ 29     Borjas was injured in a car accident when her personal vehicle

  was hit by a police car driven by an Alamosa police officer

  responding to an emergency. Id. at 1266.3

¶ 30     To recover damages, Borjas first attempted to sue the officer

  and the City of Alamosa, but her case was dismissed because the

  officer and the City were both immune from suit under the CGIA.

  Id. at 1266-67. Borjas then made a claim under her own insurance

  policy for UM benefits. Id. at 1267. State Farm denied the claim,

  and Borjas sued to enforce payment of benefits under her insurance

  policy. Id. The insurance policy, similar to the one here, restricted

  UM/UIM benefits to situations in which the insured was “legally

  entitled to collect” from the driver of an uninsured vehicle. Id. The

  district court dismissed the action because the officer and the City

  were immune under the CGIA, “and therefore [Borjas] was not

  legally entitled to collect damages from them.” Id.

¶ 31     On appeal, a division of this court defined the issue as:

  “whether § 10-4-609 requires coverage when an injured motorist

  3   Workers’ compensation was not at issue in that case.

                                     15
  cannot collect damages from a negligent motorist because the

  tortfeasor is immune from liability pursuant to the CGIA . . . .” Id.

  at 1268.

¶ 32   The division determined that the insurance company’s

  interpretation of the policy to deny coverage when the tortfeasor

  was immune from suit under the CGIA violated public policy. Id. at

  1267, 1268. Citing the policies underlying the UM/UIM statute, the

  division concluded that “[i]t is entirely consistent with this public

  policy to construe § 10-4-609 to require that UM insurance

  coverage apply even though the tortfeasor is immune from liability

  under the CGIA.” Id. at 1268. The court reasoned that, from the

  perspective of the injured party, the lack of legal responsibility had

  the same effect as being injured by an uninsured driver. Id.

¶ 33   The division in Borjas acknowledged a split in cases from other

  jurisdictions that had addressed the issue of UM/UIM coverage

  where the tortfeasor was protected from liability by some form of

  governmental immunity. Nevertheless, the division supported its

  outcome as follows:

             The courts that have held that UM coverage
             was mandated where the tortfeasor is
             protected by some form of governmental


                                     16
            immunity have all found that interpretation
            consistent with the purposes of their UM
            statutes, i.e., to provide that motorists may
            purchase insurance to protect themselves from
            negligent motorists who cannot or will not pay
            for the damages they have caused. The UM
            statutes discussed in these cases all have
            language similar to § 10-4-609. Thus, we find
            the holdings in these cases consistent with the
            purpose of § 10-4-609 described above.

            The contrary line of cases all give a strict
            interpretation to the statutory language
            “legally entitled to recover” that we find
            inconsistent with the public policy expressed
            in § 10-4-609.

  Id. at 1269.

¶ 34   The division also found further support for providing coverage

  in a prominent treatise on UM/UIM coverage, and it summarized

  the following three reasons why a

            tortfeasor’s immunity should not preclude a
            UM claim: (1) while tort immunity protects the
            tortfeasor as intended, it should have no effect
            on an insurance company providing first party
            UM insurance coverage; (2) it is consistent
            with the strong public policy of providing
            insurance coverage to protect drivers when no
            compensation is available from the negligent
            tortfeasor; and (3) tort immunities are personal
            to the tortfeasor and therefore cannot be raised
            by an insurer.




                                  17
  Id. (citing 1 Alan I. Widiss, Uninsured and Underinsured Motorist

  Insurance § 7.14, at 388-90 (2d ed. 2001)).

¶ 35        Importantly, the division also specifically noted that its

  conclusion did not contravene the public policy expressed in the

  CGIA because “[t]hose persons and entities who are immune from

  liability under the CGIA are unaffected by this holding.” Id.

¶ 36        In succinct terms, the court held

                 that the phrase “legally entitled to recover
                 damages,” as used in § 10-4-609, means that
                 the insured must be able to establish that the
                 fault of the uninsured motorist gave rise to
                 damages and the extent of those damages. We
                 further conclude that the public policy
                 expressed in § 10-4-609 requires that UM
                 insurance policies must provide coverage for
                 the protection of a motorist injured by the
                 negligence of a driver who is immune from
                 liability under the CGIA.

  Id. (citation omitted).

       E.    Dickinson: UM/UIM Coverage and Independent Contractors
                               Under the Act

¶ 37        Next, we turn to an analysis of Dickinson, the case relied on by

  AFI and found to be controlling by the district court.

¶ 38        Several years after Borjas, a division of this court was

  presented with the novel issue of determining whether an



                                         18
  independent contractor subject to capped tort damages from his

  employer by section 8-41-401(3), C.R.S. 2016, of the Act could

  recover on his claim for additional benefits from his employer’s

  UM/UIM policy. Dickinson, 179 P.3d at 203-04.

¶ 39   While on the job, Dickinson sustained injuries when he fell

  from a truck driven by his co-employee. Id. at 203. Dickinson was

  an independent contractor working for United Technical Services

  (UTS), and the co-employee/tortfeasor was an employee of UTS. Id.

¶ 40   An administrative law judge rejected Dickinson’s workers’

  compensation claim against UTS because he was an independent

  contractor, not an employee of UTS, and, therefore, was not

  protected under the Act. Id. To recover damages for his injuries,

  Dickinson then sued UTS and his co-employee in tort. Id. The trial

  court ruled that Dickinson’s recovery against his employer and co-

  employee was limited to $15,000 by section 8-41-401(3) of the Act

  because he elected in writing not to be covered by UTS’s workers’

  compensation policy and did not purchase his own workers’

  compensation insurance. Dickinson settled the tort case for

  $15,000. Id. at 204.




                                   19
¶ 41   To recover his damages in excess of $15,000, Dickinson then

  filed a claim under UTS’s UM/UIM auto insurance policy, claiming

  that the $15,000 statutory limit to his tort recovery rendered UTS

  and its employee underinsured. Id.

¶ 42   UTS’s auto insurer brought a declaratory action to determine

  whether Dickinson’s claim was precluded because of the limitation

  in section 8-41-401(3). Id. On cross-motions for summary

  judgment, the district court ruled in favor of the insurer. Id.

¶ 43   On appeal to this court, the division’s analysis focused on

  section 8-41-401(3) of the Act. As a matter of first impression, the

  division defined the issue as “whether the Act’s $15,000 limitation

  on certain tort claims precludes recovery against a UM/UIM insurer

  of an employer for damages suffered in a work-related accident in

  which the tortfeasor is in the same employ as the claimant.” Id.

¶ 44   As part of its analysis, the division broadly stated that “[t]he

  majority of jurisdictions that have addressed this issue hold that

  ‘an insured is not “legally entitled to recover” under the uninsured

  motorist provisions of an insurance policy if the exclusivity

  provisions of the workers’ compensation statute would bar an

  action against the tortfeasor.’” Id. (quoting Matarese v. N.H. Mun.


                                    20
  Ass’n Prop.-Liab. Ins. Tr., Inc., 791 A.2d 175, 180-81 (N.H. 2002)).

  The division agreed with this view and stated it was consistent with

  Colorado statutes. Id. at 205.

¶ 45    In considering the policy behind section 10-4-609, the division

  found that the statute recognizes that injured parties have the right

  to recover for losses caused by uninsured motorists in the same

  manner as if the motorist were insured. Id. “But because here the

  tortfeasor and UTS were insured, Dickinson’s public policy

  argument for avoiding the $15,000 limitation would place him in a

  better position. . . . Hence, we discern no absurdity in giving effect

  to the limitation in § 8-41-401(3), notwithstanding § 10-4-609(1),

  when the tortfeasor enjoys this immunity.” Id. at 206. Again, the

  division’s analysis focused on the recovery limitation and limited

  immunity in section 8-41-401(3).

¶ 46    Dickinson also specifically distinguished Borjas in three ways.

  First, the division noted that some of the out-of-state cases cited in

  Borjas reached different outcomes when workers’ compensation

  immunity was at issue rather than sovereign immunity. Id. at 206-

  07.




                                    21
¶ 47   Second, the division explained that Borjas allowed recovery by

  an insured who had purchased the statutorily mandated UM/UIM

  coverage and would have otherwise remained uncompensated if

  CGIA immunity had defeated coverage of such benefits. The

  division contrasted that scenario with the plaintiff in Dickinson, who

  could have protected himself from the $15,000 cap but chose not do

  so. Id. at 207.

¶ 48   Third, the division in Dickinson determined that while the

  public policies of the CGIA and the UM/UIM statute at issue in

  Borjas were not at odds with each other, the policies behind section

  8-41-401(3) and the exclusivity provisions of the Act were at odds

  with each other under the circumstances of the case. Id. at 208.

  To allow Dickinson to recover above the cap in section 8-41-401(3)

  through the employer’s UM/UIM insurance would, in the division’s

  view, “undercut” the policy of encouraging independent contractors

  to obtain workers’ compensation coverage, while unjustly burdening

  an employer or co-employee with additional liability based on an

  independent contractor’s choice to forego workers’ compensation

  coverage. Id. at 207. The division thus reasoned that it would be

  unjust to allow Dickinson to recover money from his employer


                                   22
  above the $15,000 cap through the employer’s insurance policy

  when that employer enjoyed immunity for any damages above

  $15,000 under section 8-41-401(3).

¶ 49   The division summarized its holding as follows:

             In sum, we hold that where an independent
             contractor fails to obtain his own workers’
             compensation insurance and does not dispute
             that he could have done so, § 8-41-401(3)
             precludes the independent contractor from
             recovering more than $15,000 in damages
             from the UM/UIM insurer of the employer of a
             tortfeasor who is in the same employ as the
             independent contractor.

  Id. at 208. As pertinent here, the division expressly recognized the

  narrow application of its holding and specifically noted that it might

  not be applicable to a claim for benefits by an injured independent

  contractor against his or her own UIM insurer: “Nevertheless, we

  acknowledge that the statutory policies which we have reconciled

  may interact differently if a claimant subject to § 8-41-401(3) sought

  UM/UIM benefits from the claimant’s own insurance carrier, and we

  express no opinion on such a scenario.” Id. (emphasis added.)

                             IV.   Discussion

¶ 50   Ashour contends that the district court erred as a matter of

  law by applying the very narrow and limited holding in Dickinson to


                                    23
  this case to preclude his claim for coverage of UM/UIM benefits

  from AFI. We agree and, for the reasons below, conclude that the

  district court misapplied the law in concluding that Dickinson

  should control the outcome of the case. Rather, we conclude that

  the holding and reasoning in Borjas are applicable here and should

  be extended to allow UM/UIM coverage to Ashour under his policy

  with AFI.

   A.   Dickinson is not Applicable to the Circumstances in this Case

¶ 51    Factually, Dickinson is not analogous to this case in several

  key respects.

               Dickinson was not an employee, but an independent

                  contractor without benefits under the Act. Dickinson,

                  179 P.3d at 203.

               Dickinson sought recovery of UIM benefits from his

                  employer’s policy, not his own personal policy. Id. at

                  204.

               Dickinson made the choice not to be covered by his

                  employer’s workers’ compensation policy and not to

                  protect himself with his own workers’ compensation

                  insurance. Id. at 203-04


                                      24
  In contrast, Ashour was an employee who was injured on the job,

  was fully covered under the Act, and opted to receive the protection

  of UM/UIM benefits through his personal auto insurance policy.

¶ 52   In our view, the fact that Ashour sought recovery of benefits

  under his own insurance policy is critical for two reasons. First,

  Ashour did not seek to recover additional damages from the

  immune parties in this case — his employer and co-employee. And,

  second, Dickinson expressly acknowledged that the outcome may be

  different where the injured party (in that case an independent

  contractor) made a claim with his or her own insurer, and the

  division, accordingly, expressed no opinion on the applicability of its

  holding to the situation present in this case. Id. at 208.

¶ 53   Analytically, Dickinson is also distinguishable because it did

  not consider the meaning of “legally entitled to recover” under

  section 10-4-609. Instead, it considered only the recovery cap for

  independent contractors provided in section 8-41-401(3). Id.

  Indeed, the division limited its holding to the circumstances where

  an independent contractor had chosen not to be covered by the Act

  and was subject to the recovery cap in section 8-41-401(3). Id.

  Section 8-41-401(3) is not relevant here because Ashour is not an


                                    25
  independent contractor, but rather an employee of Nubilt. The

  issue and holding in Dickinson were limited by three factors that

  were present in that case: the applicability of section 8-41-401(3) to

  the injured party; the request by the injured party for coverage

  under an employer’s UM/UIM insurer; and the presence of a co-

  employee tortfeasor. The only one of those factors present here is

  that Ashour was also injured by a co-employee. Thus, contrary to

  the district court’s conclusion, much of Dickinson’s reasoning does

  not apply to the circumstances of this case.

¶ 54   Dickinson is also distinguishable from a policy standpoint. As

  noted by the division in Dickinson, the policy behind section 8-41-

  401(3) is to encourage independent contractors to choose workers’

  compensation coverage under their employer’s policy or in a

  personal policy by capping tort recovery at $15,000. Id. at 207.

  That statutory cap and the policy underlying it are simply not

  relevant to Ashour’s case. Moreover, the division in Dickinson

  emphasized that the employer and co-employee were subject to

  immunity from damages exceeding $15,000 and that it would have

  been unjust to subject them to additional liability (i.e., a payout by

  the employer’s insurance company) based on Dickinson’s election


                                    26
  not to obtain coverage. Id. That concern also has no bearing here

  because Ashour sought recovery of benefits from his own insurer,

  which would not subject his employer or co-employee to further

  liability.4

¶ 55    We therefore conclude that Dickinson is not applicable to

  Ashour’s case. Hence, we also conclude that the district court

  misapplied the law when it found Dickinson controlling.

           B.     Borjas is Analogous to the Circumstances Here

¶ 56    In contrast to Dickinson, the reasoning and holding in Borjas

  have a broader application. We start, again, with a basic

  comparison between the facts in this case and those in Borjas.

                 Both Ashour and Borjas sought to recover benefits

                  under their personal UM/UIM insurance policies and

                  thus chose to protect themselves from otherwise

                  unrecoverable damages. Borjas, 33 P.3d at 1266.

  4 Our analysis also leads us to reject AFI’s assertions that the
  exclusivity provisions of the Act are broad enough to preclude any
  compensation to an injured employee from other sources in excess
  of those provided by the formulas under the Act. As discussed
  above, Colorado law allows injured employees to receive workers’
  compensation benefits and benefits or payouts from sources other
  than their employer or co-employee. See Aetna Cas. & Sur. Co. v.
  McMichael, 906 P.2d 92, 100 (Colo. 1995); Benson v. Colo. Comp.
  Ins. Auth., 870 P.2d 624, 626 (Colo. App. 1994).

                                     27
             The tortfeasor in each case was cloaked in immunity

               from tort, one under the CGIA and the other through

               the exclusivity provisions of the Act. Id. at 1267.

             Both cases required the court to interpret the phrase

               “legally entitled to recover” in section 10-4-609(1)(a).

               Id. at 1268.

¶ 57   From a policy standpoint, Borjas focused on the policies

  behind the UM/UIM statute and the immunity provided under the

  CGIA. While the CGIA is not at issue here, we discern that the

  reasoning in Borjas is nonetheless applicable because both the

  CGIA and the Act provide complete immunity from tort actions.

  Thus, AFI’s argument that Borjas is distinguishable because it did

  not address the exclusivity provisions of the Act (i.e., employer and

  co-employee immunity) simply misses the mark.

¶ 58   AFI also attempts to distinguish Borjas because the immunity

  provided by the CGIA left the plaintiff in that case with no means of

  recovery (as if the tortfeasor were uninsured), whereas here, even

  though Nubilt and Peake were immune from suit, Ashour received

  benefits from Nubilt’s workers’ compensation insurer. We are not

  persuaded. This argument ignores the fact that the language of

                                    28
  AFI’s UM/UIM policy, consistent with section 10-4-609, provides

  coverage where the tortfeasor is underinsured. The statute defines

  underinsured tortfeasors simply and broadly as those who are

  covered by insurance at the time of the accident. § 10-4-609(4).

  Thus, Nubilt and Peake are effectively underinsured in that Ashour

  received benefits up to Nubilt’s workers’ compensation insurance

  limits but still has additional damages from his workplace injury. It

  is the exhaustion of Nubilt’s and Peake’s limits of liability coverage

  (i.e., workers’ compensation insurance) that triggers AFI’s obligation

  to pay UM/UIM benefits. Jordan, ¶ 29. From the “perspective of

  the injured innocent” employee, “the lack of legal responsibility has

  the same effect” as that of an underinsured driver. Borjas, 33 P.3d

  at 1268.

                 C.   Analysis and Application of Borjas

¶ 59   Although we conclude Borjas is guiding and instructive here,

  we recognize that it is not directly on point because it does not

  address workers’ compensation or the issue of co-employee

  tortfeasors. Hence, the question to be resolved is whether the

  immunity provided to government employees by the CGIA is

  somehow distinguishable from the immunity provided to employers


                                    29
  and co-employees under the Act. We conclude there is no such

  meaningful distinction. We agree with Borjas’s broad interpretation

  of the phrase “legally entitled to recover,” because it is consistent

  with the underlying policies of both the Act and the UM/UIM

  statute, and, thus, we conclude that immunity under the Act, like

  immunity under the CGIA, does not bar an injured employee’s

  recovery of UM/UIM benefits from his or her personal insurer.

¶ 60   As a threshold matter, we consider AFI’s basic argument that

  its UM/UIM policy language is unambiguous and consistent with

  the UM/UIM statute, and that a plain reading of that language

  results in an insured such as Ashour falling outside of the policy’s

  UM/UIM coverage because he is not “legally entitled to recover”

  from Peake, the tortfeasor. AFI, however, concedes that no

  Colorado case law is directly on point under the circumstances of

  this case and, accordingly, relies on out-of-state case law that

  purportedly represents the “majority view.” We acknowledge this

  argument but are unpersuaded.

¶ 61   We give the words of an insurance contract their plain

  meanings, avoiding strained and technical interpretations.

  Progressive Specialty Ins. Co. v. Hartford Underwriters Ins. Co., 148


                                     30
  P.3d 470, 474 (Colo. App. 2006). However, in the context of

  UM/UIM coverage, if a UM/UIM policy violates the statutory

  coverage requirements, courts will read those requirements into the

  policy. McMichael, 906 P.2d at 101. Similarly, Colorado courts

  have required UM/UIM coverage in instances where the insurance

  carrier’s interpretation of its UM/UIM policy denying coverage

  violated the public policy behind the UM/UIM statute. Borjas, 33

  P.3d at 1267, 1268; see also Huizar v. Allstate Ins. Co., 952 P.2d

  342, 344 (Colo. 1998) (stating that courts have a “heightened

  responsibility” to scrutinize insurance policies that unduly

  compromise the insured’s interests; any provision of an insurance

  policy that violates public policy is unenforceable).

¶ 62   As AFI points out, and as we discuss in more detail below,

  some out-of-state cases have concluded that the phrase “legally

  entitled to recover” is unambiguous and means more than simply

  showing that the uninsured/underinsured motorist was “at fault.”

  However, we choose to adopt the Borjas interpretation of that

  phrase because it is consistent with the policies underlying the

  UM/UIM statute, the purpose of which is to compensate the injured

  party “for injuries received at the hands of one from whom damages


                                    31
  cannot be recovered.” Borjas, 33 P.3d at 1267 (quoting Farmers

  Ins. Exch. v. McDermott, 34 Colo. App. 305, 308-09, 527 P.2d 918,

  920 (1974)).

¶ 63   Specifically, the division in Borjas held that “legally entitled to

  recover” under section 10-4-609(1)(a) “means that the insured must

  be able to establish that the fault of the uninsured motorist gave

  rise to damages and the extent of those damages.” Id. at 1269. The

  division did not limit its interpretation of that language or tie its

  interpretation to situations where the injured party has no other

  means of recovery.

¶ 64   It necessarily followed from Borjas’s fault-based approach that

  “the public policy expressed in § 10-4-609 requires that [UM/UIM]

  insurance policies must provide coverage for the protection of a

  motorist injured by the negligence of a driver who is immune from

  liability.” Id. And, of course, the immunity at issue in that case

  was that provided under the CGIA.

¶ 65   Thus, we must consider whether the policy considerations

  articulated in Borjas are equally applicable where, as here, the

  plaintiff was injured by the negligence of parties who are immune

  under the Act. We conclude that the policies underlying the Act’s


                                     32
  exclusivity provisions and the UM/UIM statute do not conflict and

  that, therefore, Ashour is entitled to make a claim for UM/UIM

  benefits against AFI, his personal auto insurer.

¶ 66   The essential purpose of the Act is to protect employees who

  sustain injuries arising out of their employment. Bellendir v. Kezer,

  648 P.2d 645, 647 (Colo. 1982). The Act is intended to provide a

  reliable and speedy source of compensation, and consequently, it

  does not require proof of fault before the worker can recover

  benefits. Id.

¶ 67   “In order to effectuate the Act’s basic goals of speedy and

  reliable compensation of injured workers, the General Assembly has

  enacted a formula which calculates awards to an injured worker

  based on loss of earning power at the time of injury.” Id. For

  example, the temporary benefits Ashour was awarded were

  calculated as sixty-six and two-thirds percent of his average weekly

  wage while he was working at Nubilt. § 8-42-105(1), C.R.S. 2016.

  There are also caps and limits on the amount of disability benefits

  provided each year. § 8-42-107.5, C.R.S. 2016. Thus, the district

  court accurately stated in its order that the “General Assembly has

  made the decision to exchange a comprehensive, prompt, fault-free


                                   33
  and largely determinate compensation system for the vagaries of the

  common law’s fault-based tort system, at the price of sometimes

  undercompensating injured parties.” (Emphasis added.)

¶ 68   The UM/UIM statutory scheme implicates other compelling

  policy considerations. The UM/UIM statute was enacted in 1965 to

  ensure adequate compensation to victims injured in vehicular

  accidents. See Ch. 91, sec. 2, § 72-12-19, 1965 Colo. Sess. Laws

  333-34. Since then, Colorado courts have consistently concluded

  that the prime concern of the UM/UIM statute is the “need to

  compensate the innocent driver for injuries received at the hands of

  one from whom damages cannot be recovered.” Borjas, 33 P.3d at

  1267 (quoting McDermott, 34 Colo. App. at 308-09, 527 P.2d at

  920). This “legislative purpose is satisfied when an insurance policy

  provides coverage for injury caused by an uninsured [or

  underinsured] motorist to the same extent as for injury caused by

  an insured motorist.” Peterman v. State Farm Mut. Auto. Ins. Co.,

  961 P.2d 487, 492 (Colo. 1998).

¶ 69   Concisely stated, “the public policy of Colorado requires that

  insurance coverage be available to protect motorists from losses

  caused by other negligent drivers who cannot or will not pay for the


                                    34
  damages they have caused.” Borjas, 33 P.3d at 1268; see also Ch.

  91, sec. 1, 1965 Colo. Sess. Laws 333.

¶ 70   The division in Borjas explained that the strict interpretation

  of “legally entitled to recover” advocated by the insurance company

  was not consistent with the public policy of section 10-4-609 as

  outlined above.5 33 P.3d at 1269. The division further reasoned

  that the policies behind section 10-4-609 did not adversely affect

  the immunity provided under the CGIA because “[t]hose persons

  and entities who are immune from liability under the CGIA are

  unaffected by this holding.” Id.




  5 We assume that the General Assembly is cognizant of the
  division’s 2001 decision in Borjas and that the division’s
  interpretation of section 10-4-609(1)(a), C.R.S. 2016, in that case
  was approved by the legislature because the statute has been
  amended twice since that decision and subsection (1)(a) has
  remained unchanged. Ch. 413, secs. 1, 2, § 10-4-609(1)(c), (2), (4),
  (5), 2007 Colo. Sess. Laws. 1921-22; Ch. 196, sec. 1, § 10-4-609(6),
  (7), 2010 Colo. Sess. Laws. 845-46; People v. Sandoval, 2016 COA
  57, ¶ 36 (“The General Assembly is presumed cognizant of relevant
  judicial precedent when it enacts legislation in a particular area.
  And, when a statute is amended, the judicial construction
  previously placed upon that statute is deemed approved by the
  General Assembly to the extent the provision remains unchanged.”
  (quoting U.S. Fid. & Guar., Inc. v. Kourlis, 868 P.2d 1158, 1162-63
  (Colo. App. 1994))); see also Jordan v. Safeco Ins. Co. of Am., Inc.,
  2013 COA 47, ¶ 28.

                                     35
¶ 71   Similar to the analysis in Borjas, the policies behind the Act

  and behind the UIM statute are not in conflict. To preclude Ashour

  from claiming benefits from his own insurance carrier under his

  UM/UIM policy would effectively deny him the full protection for

  injuries caused by underinsured negligent drivers contrary to the

  intent of the General Assembly. Moreover, allowing him to claim

  benefits from his own insurance carrier would not in any way affect

  the immunity provided to his employer and co-employee by the Act.

  Unlike the plaintiff in Dickinson, Ashour did not seek to recover

  additional damages from his immune employer or co-employee;

  instead, he sought only to enforce the terms of his insurance policy

  and recover benefits from his own insurer.

¶ 72   In addition, the policies behind the Act are focused on the

  protection of the injured worker (here, Ashour), not the protection of

  a third-party auto insurance company. Similarly, the UM/UIM

  statute is focused on protecting injured motorists, not the

  insurance companies who are statutorily required to offer the

  coverage. In our view, AFI should not be allowed to deny coverage

  to Ashour when the purpose of the UM/UIM statutory mandate is to

  protect those with coverage from the financial burdens imposed by


                                   36
  tortfeasors who are unable to pay for the full scope of damages they

  cause.

¶ 73   In sum, we conclude that Ashour’s claim for UIM benefits

  under his policy with AFI is not barred by the exclusivity provisions

  of the Act, or by the “legally entitled to recover” language of the

  policy.

                       D.    Out-of-State Authority

¶ 74   Both parties discuss non-Colorado case law in their briefs on

  appeal, and, in addition, both Borjas and Dickinson cite foreign

  cases in support of their respective holdings. Indeed, AFI even

  urges us to adopt what it perceives to be the “majority rule” that

  workers’ compensation exclusivity provisions are a bar to recovery

  of UM/UIM benefits where the tortfeasor is a co-employee.6 Thus,

  we address some of the out-of-state cases pertinent to our analysis.




  6 Based on our review of non-Colorado authority, we are skeptical
  that the “majority rule” is that articulated by AFI. In that regard,
  we note that while courts in various jurisdictions are split on this
  issue, the opinions and reasoning in most cases are very nuanced,
  such that we are unable to discern a clear majority; the facts and
  analyses vary so widely that they do not lend themselves to a
  straight comparison. Thus, we disagree with Continental Divide
  Insurance Co. v. Dickinson, 179 P.3d 202, 204 (Colo. App. 2007), to
  the extent it stands for the proposition that denying UM/UIM

                                     37
¶ 75   Courts in a number of states have found no bar to recovery of

  UM/UIM benefits, and in so holding, they have used the same fault-

  based definition of the phrase “legally entitled to recover”

  articulated in Borjas. For example, as in the case here, in Barfield

  v. Barfield, 742 P.2d 1107, 1109 (Okla. 1987), an employee was

  injured by a co-employee during the course and in the scope of

  their employment and then applied for UM/UIM benefits from his

  personal auto insurer. The insurer argued that UM/UIM coverage

  was not available to the injured employee because the alleged

  tortfeasor was immune from tort liability under Oklahoma’s

  workers’ compensation statute, and the insured was, therefore, not

  “legally entitled to recover.” Id. at 1111. The court in Barfield relied

  on existing Oklahoma precedent to determine that the phrase

  “legally entitled to recover” meant that the insured “must be able to

  establish fault on the part of the uninsured motorist which gives

  rise to damages and prove the extent of those damages.” Id. at

  1112 (quoting Uptegraft v. Home Ins. Co., 662 P.2d 681, 685 (Okla.

  1983)). The Barfield court explicitly stated that the phrase did not


  coverage to employees covered by workers’ compensation who are
  injured by a co-employee is the “majority” view.

                                    38
  mean “that an insured must be able to proceed against an

  uninsured/underinsured in tort in order to collect uninsured

  motorist benefits.” Id. The Oklahoma Supreme Court subsequently

  extended its decision in Barfield by reaffirming the fault-based

  definition of “legally entitled to recover” and determining that there

  was no distinction between an employee who sought to recover from

  his own policy or his employer’s UM/UIM policy. Torres v. Kan. City

  Fire & Marine Ins. Co., 849 P.2d 407, 411 (Okla. 1993).

¶ 76   Similarly, in Southern Farm Bureau Casualty Insurance Co. v.

  Pettie, 924 S.W.2d 828, 831 (Ark. Ct. App. 1996) (citing Hettel v.

  Rye, 475 S.W.2d 536, 537-38 (Ark. 1972)), the court noted that the

  phrase “legally entitled to recover” only requires “a showing of fault

  on the part of the uninsured motorist.” Accordingly, the court held

  that the exclusive remedy provision of the Arkansas workers’

  compensation statutes did not bar the injured worker from being

  “legally entitled to recover” UM/UIM benefits. Id. at 832; see also

  Jenkins v. City of Elkins, 738 S.E.2d 1, 12-14 (W. Va. 2012)

  (identifying Borjas as a leading case that illustrated the majority

  interpretation of the phrase “legally entitled to recover,” and holding

  such phrase to mean that an insured is entitled to UM/UIM


                                    39
  coverage merely by establishing fault on the part of the tortfeasor

  and the amount of the insured’s damages).

¶ 77   We are persuaded by these cases because they are consistent

  with the reasoning and holding in Borjas and with the public

  policies articulated in Colorado’s UM/UIM statutory framework.

¶ 78   In contrast, those courts in other states that have found the

  workers’ compensation exclusivity provisions to be a bar to

  UM/UIM coverage have relied on a much stricter definition of

  “legally entitled to recover.” For example, in Wachtler v. State Farm

  Mutual Automobile Insurance Co., 835 So. 2d 23, 26 (Miss. 2003),

  the Mississippi Supreme Court found that the Mississippi workers’

  compensation exclusivity provision barred an injured employee

  from recovering UM benefits under the employee’s own insurance

  policy based on its determination in a prior case that the phrase

  “legally entitled to recover” meant “those instances where the

  insured would be entitled at the time of the injury to recover through

  legal action.” Id. (emphasis added). The court distinguished

  Barfield, in part, on the grounds that its holding was contrary to

  already existing Mississippi precedent interpreting the phrase

  “legally entitled to recover.” Id. at 27; see also Allstate Ins. Co. v.


                                      40
  Boynton, 486 So. 2d 552, 555-56 (Fla. 1986) (relying on a definition

  of “legally entitled to recover” requiring that the case against the

  tortfeasor be able to be “reduced to judgment”); State Farm Mut.

  Auto. Ins. Co. v. Slusher, 325 S.W.3d 318, 322 (Ky. 2010)

  (distinguishing prior cases that determined that “legally entitled to

  recover” required proof of fault and damages and deciding that the

  phrase was not ambiguous under the circumstances of Slusher’s

  case).

¶ 79   We are simply not persuaded by the analysis in cases such as

  Wachtler7 because they are not consistent with the policies

  underlying Colorado’s UM/UIM statute or the division’s analysis in

  Borjas.

                             V.    Conclusion

¶ 80   The district court’s judgment is reversed. The case is

  remanded with directions to enter summary judgment in favor of

  Ashour, declaring, as a matter of law, that AFI must provide

  coverage of UM/UIM benefits to Ashour upon his proof that Peake

  7Indeed, we are much more persuaded by the dissenting opinion in
  Wachtler v. State Farm Mutual Automobile Insurance Co., 835 So. 2d
  23, 28-29 (Miss. 2003) (Diaz, J., dissenting), based on its emphasis
  of the importance of the public policies and purposes of UM/UIM
  coverage.

                                     41
was at fault for causing his injuries and of the extent of his

damages in excess of the coverage offered him under the Act.

     JUDGE KAPELKE and JUDGE VOGT concur.




                                  42
