     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                June 13, 2019

                                2019COA88

No. 18CA0748, Ryser v. Shelter Mutual Insurance — Insurance
— Motor Vehicles — Uninured/Underinsured; Workers’
Compensation — Coverage and Liability

     In this uninsured/underinsured motorist (UM/UIM) benefits

case, a division of the court of appeals concludes that the

exclusivity provision of the Workers’ Compensation Act of Colorado,

section 8-41-102, C.R.S. 2018, and the related co-employee

immunity rule, bar a person who was injured in the course and

scope of employment by a co-employee’s negligence in driving a car

from receiving UM/UIM benefits under an insurance policy

maintained by another co-employee who owned the car.
COLORADO COURT OF APPEALS                                        2019COA88


Court of Appeals No. 18CA0748
City and County of Denver District Court No. 17CV33797
Honorable Robert L. McGahey, Jr., Judge


Kent Ryser,

Plaintiff-Appellant,

v.

Shelter Mutual Insurance Company,

Defendant-Appellee.


                            JUDGMENT AFFIRMED

                                 Division III
                          Opinion by JUDGE WEBB
                       Furman and Márquez*, JJ., concur

                           Announced June 13, 2019


Killian Davis Richter & Mayle, PC, Nicholas W. Mayle, Damon Davis, Grand
Junction, Colorado, for Plaintiff-Appellant

Morgan Rider Riter Tsai, P.C., Sophia H. Tsai, Kelly L. Kafer, Denver, Colorado,
for Defendant-Appellee


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶1    In this uninsured/underinsured motorist (UM/UIM) benefits

 case, plaintiff, Kent Ryser, appeals the summary judgment entered

 in favor of defendant, Shelter Mutual Insurance Company, based on

 the exclusivity provision of the Workers’ Compensation Act of

 Colorado (WCA), section 8-41-102, C.R.S. 2018, and the related

 co-employee immunity rule. The case requires us to decide whether

 this immunity bars a person who was injured in the course and

 scope of employment by a co-employee’s negligence in driving a car

 from receiving UM/UIM benefits under an insurance policy

 maintained by another co-employee who owned the car. 1 Because

 of the tortfeasor’s coworker immunity, we conclude that Ryser

 cannot satisfy the UM/UIM statutory requirement of being “legally

 entitled to recover.” On this basis, we affirm the summary

 judgment.




                       ———————————————————————
 1Answering this question fills a gap between cases in which
 divisions of this court have addressed the interplay between
 UM/UIM coverage and tortfeasor immunity in different contexts,
 such as where the insurance policy belonged to the claimant and
 where immunity arose under the Colorado Governmental Immunity
 Act (CGIA) rather than under the WCA.

                                  1
           I. Undisputed Facts and Procedural Background

¶2    Ryser suffered serious injuries in a one-car accident. Sherri

 Babion owned the car. Linda Forster was driving, with Babion’s

 permission. Ryser was a passenger, also with her permission.

 When the accident occurred, all three of them were Walmart

 employees acting in the course and scope of their employment.

 According to Ryser, Forster’s negligence caused his injuries.

¶3    Babion maintained an auto insurance policy written by

 Shelter. The policy provided UM/UIM coverage. Because Forster

 was driving with Babion’s consent and Ryser was a permitted

 passenger, they were both insured under the policy. But the

 policy’s UM/UIM coverage applied only where “the owner or

 operator of an uninsured/underinsured motor vehicle is legally

 obligated to pay damages.” As well, the policy excluded from the

 definition of uninsured/underinsured motor vehicle “[t]he described

 auto,” i.e., Babion’s car.

¶4    Ryser received workers’ compensation benefits. He also

 obtained UM/UIM benefits under his own auto policy on the basis

 that the co-employee immunity rule rendered Forster an uninsured

 motorist. Still, he claimed UM/UIM benefits from Shelter to the


                                   2
 extent that Babion’s UM/UIM coverage had a higher limit than his

 own policy.

¶5    When Shelter rejected the claim, Ryser brought this action for

 UM/UIM benefits. He also raised statutory bad faith and

 unreasonable delay and denial of benefits claims, along with a

 common law bad faith claim.

¶6    Shelter moved for summary judgment. It argued that Forster’s

 co-employee immunity precluded the claim, as did the exclusion of

 Babion’s car from UM/UIM coverage. For purposes of summary

 judgment, it did not contest that Ryser had been injured or that

 Forster’s negligence had caused his injuries.

¶7    Ryser opposed Shelter’s motion on the described auto

 exclusion and filed a cross-motion for partial summary judgment on

 the co-employee immunity question. He did not assert any

 negligence as to Babion.

¶8    Neither party opposed the other’s motion based on disputed

 issues of material fact. Nor was the co-employee immunity of

 Forster disputed.

¶9    In a written order, the trial court ruled for Shelter and against

 Ryser based on co-employee immunity, thus ending the case. The


                                   3
  court did not address the described auto exclusion. On appeal,

  Shelter concedes preservation.

                          II. Standard of Review

¶ 10   Summary judgment is reviewed de novo, applying the same

  standard as the trial court. City of Fort Collins v. Colo. Oil & Gas

  Ass’n, 2016 CO 28, ¶ 9. It is appropriate only when no genuine

  issue of material fact exists and the moving party is entitled to

  judgment as a matter of law. C.R.C.P. 56(c); Martini v. Smith, 42

  P.3d 629, 632 (Colo. 2002). The opposing party is entitled to the

  benefit of all favorable inferences that may reasonably be drawn

  from the undisputed facts, and all doubts as to the existence of a

  triable issue of fact must be resolved against the moving party.

  Martini, 42 P.3d at 632.

¶ 11   Statutory interpretation is a question of law that is also

  reviewed de novo. Cont’l Divide Ins. Co. v. Dickinson, 179 P.3d 202,

  204 (Colo. App. 2007). So is the interpretation of an insurance

  policy. Smith v. State Farm Mut. Auto. Ins. Co., 2017 COA 6, ¶ 5.

¶ 12   Although earlier decisions from divisions of this court are not

  binding on another division, “the later division should give the prior




                                     4
  decision some deference.” People v. Oliver, 2018 COA 146, ¶ 24 n.1

  (quoting People v. Bondsteel, 2015 COA 165, ¶ 14).

                                 III. Law

                               A. Statutes

¶ 13   In Colorado, statutes regulate UM/UIM coverage. Under

  section 10-4-609(1)(a), C.R.S. 2018, auto insurers must offer

  UM/UIM coverage with all liability policies covering the same class

  of persons who are included in the liability provisions. UM/UIM

  benefits are available only to persons who are “legally entitled to

  recover.” Id. This phrase is not defined. Coverage extends to

  permissive users. § 10-4-620, C.R.S. 2018.

¶ 14   Nor do the statutes define “uninsured motorist” or “uninsured

  automobile.” An “underinsured” motor vehicle is defined as “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.” § 10-4-609(4). Under that section, “[u]ninsured 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.” Id. (emphasis added).

  But the phrase “legally entitled to collect” is also undefined.


                                     5
                               B. Case Law

¶ 15   The parties primarily focus on three decisions by divisions of

  this court: Borjas v. State Farm Mutual Automobile Insurance Co., 33

  P.3d 1265 (Colo. App. 2001); Dickinson, 179 P.3d 202; and

  American Family Mutual Insurance Co. v. Ashour, 2017 COA 67. To

  a lesser extent, they point to Aetna Casualty & Surety Co. v.

  McMichael, 906 P.2d 92 (Colo. 1995). Unsurprisingly, they read

  these cases differently. And in any event, at most these cases

  provide only background.

                                 1. Borjas

¶ 16   The plaintiff sought UM/UIM benefits under her personal auto

  policy for injuries suffered in a collision with a car driven by a police

  officer. The officer was immune under the CGIA. After examining

  the policies underlying UM/UIM coverage and governmental

  immunity, the division allowed recovery. In doing so, it explained

  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.” Borjas, 33 P.3d at 1269.




                                     6
                               2. Dickinson

¶ 17   The plaintiff, an independent contractor, sustained an injury

  caused by a co-employee’s negligent operation of a motor vehicle.

  Because he had elected not to be covered by the employer’s workers’

  compensation policy and had not obtained his own coverage, the

  WCA limited the liability of the employer and the co-employee to a

  total of $15,000. § 8-41-401(3), C.R.S. 2018. After having been

  paid that amount, he sought UM/UIM benefits from the employer’s

  insurer.

¶ 18   The division rejected the claim. It held that “[a]llowing an

  independent contractor, who like Dickinson had not procured

  workers’ compensation insurance, to recover damages in excess of

  $15,000 through the employer’s UM/UIM insurance for injuries

  sustained in a work-related accident would undercut the[] policies

  [of the WCA].” Dickinson, 179 P.3d at 207. In doing so, the division

  declined to follow Borjas and aligned with what it described as the

  “majority of jurisdictions that have addressed this issue,” holding

  that “an insured is not ‘legally entitled to recover’ under the

  uninsured motorist provisions of an [employer’s] insurance policy if

  the exclusivity provisions of the workers’ compensation statute


                                     7
  would bar an action against the tortfeasor.” Id. at 204 (citation

  omitted).

                                  3. Ashour

¶ 19      The plaintiff was injured at work in a motor vehicle accident

  caused by a co-employee’s negligence. After having received

  workers’ compensation benefits, he sought UM/UIM benefits under

  his own auto insurance policy. The division held that this claim

  was “not barred by the exclusivity provisions of the [WCA], or by the

  ‘legally entitled to recover’ language” of section 10-4-609. Ashour,

  ¶ 73. As to this phrase, the division followed Borjas and held that it

  means “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 ¶ 63 (quoting Borjas, 33 P.3d at 1269). So, it

  concluded, “allowing [the plaintiff] 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 [WCA].” Id. at

  ¶ 71.

                                4. McMichael

¶ 20      The plaintiff, an employee, sustained injuries while working

  near his employer’s truck and sought UM/UIM benefits under the


                                      8
  employer’s insurance policy. The supreme court addressed whether

  the plaintiff was covered, although he had left the truck before

  being injured. Unlike Borjas, Dickinson, and Ashour, this case did

  not involve WCA immunity because the plaintiff was struck by a

  third-party tortfeasor.

¶ 21   The court addressed the WCA only to the extent of noting that

  “[t]he Workers’ Compensation statute does not bar McMichael from

  bringing a tort action against the driver who caused the accident.”

  McMichael, 906 P.2d at 100 n.7. It held that “insurers must provide

  UM/UIM coverage for the protection of persons insured under the

  liability policy that the insurer is issuing.” Id. at 97. It also held

  that an exclusion of employer’s liability for workers’ compensation

  benefits did not limit UM/UIM coverage.

¶ 22   In sum, whether an employee injured in an auto accident

  caused by a co-employee’s negligence while in the course and scope

  of employment is “legally entitled to recover” — a condition

  precedent to obtaining UM/UIM benefits under another co-

  employee’s auto insurance policy — remains unresolved. 2

                       ———————————————————————
  2 Of course, the General Assembly could fill this gap, but it has not

  done so.

                                      9
               IV. Ryser Is Not Legally Entitled to Recover

¶ 23   Relying on Borjas and Ashour, Ryser contends he is entitled to

  UM/UIM benefits under Babion’s policy because “he can prove

  [Forster] was at fault for the collision and that he suffered injuries

  therefrom.” Recall that, for summary judgment purposes, neither

  fault nor damages are disputed. So, resolving this contention

  begins with determining the meaning of “legally entitled to recover”

  under section 10-4-609. 3 After doing this, we conclude that Ryser

  is not entitled to UM/UIM benefits under Babion’s insurance policy.

¶ 24   When interpreting statutes, “we endeavor to give effect to the

  intent of the General Assembly.” Colorow Health Care, LLC v.

  Fischer, 2018 CO 52M, ¶ 11. To divine that intent, we start by



                          ———————————————————————
  3 Section 10-4-609(4), C.R.S. 2018, also uses the phrase “legally

  entitled to collect,” when discussing coverage related to an
  “underinsured motor vehicle.” The division in American Family
  Mutual Insurance Co. v. Ashour, 2017 COA 67, ¶ 21 n.2, found “no
  legally significant difference between the phrase ‘legally entitled to
  recover’ and ‘legally entitled to collect.’” Shelter’s policy uses the
  phrase, “legally obligated to pay damages,” but Shelter does not
  argue that this language provides less coverage than what is
  required by section 10-4-609. See Arline v. Am. Family Mut. Ins.
  Co., 2018 COA 82, ¶ 14 (“[A] term of an insurance policy ‘is void
  and unenforceable if it violates public policy by attempting to
  “dilute, condition, or limit statutorily mandated coverage”’ . . . .”
  (quoting Huizar v. Allstate Ins. Co., 952 P.2d 342, 345 (Colo. 1998))).

                                     10
  looking to the plain language of the statute, construing words and

  phrases according to the rules of grammar and common usage.

  Roberts v. Bruce, 2018 CO 58, ¶ 8.

¶ 25   Neither the division in Borjas nor that in Ashour found the

  phrase “legally entitled to recover damages from owners or

  operators of uninsured motor vehicles” to be ambiguous. Still, both

  divisions interpreted the phrase based on policy considerations.

  See Borjas, 33 P.3d at 1269 (“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.”); see also Ashour, ¶ 62 (“[W]e 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 cannot be recovered.’” (quoting Borjas, 33

  P.3d at 1267)).

¶ 26   Neither party argues that section 10-4-609(1)(a) is ambiguous.

  At least one division of this court has held that it is not. See Jaimes

  v. State Farm Mut. Auto. Ins. Co., 53 P.3d 743, 746 (Colo. App.

  2002) (Referring to “the unambiguous language of the statute itself,”


                                     11
  the division explained “[s]ection 10-4-609(1)(a) plainly states that

  UM/UIM coverage is ‘for the protection of persons insured [under

  the policy] who are legally entitled to recover damages from owners

  or operators of uninsured motor vehicles.’”). And where the plain

  language of a statute is unambiguous and does not conflict with

  other statutory provisions, we should look no further. People in

  Interest of W.P., 2013 CO 11, ¶ 11.

¶ 27   That said, what does the plain language of this phrase mean?

¶ 28   Starting with the words “legally entitled,” because the General

  Assembly included the word “legally,” it must have meant

  something more than simply “entitled.” See Colo. Water

  Conservation Bd. v. Upper Gunnison River Water Conservancy Dist.,

  109 P.3d 585, 597 (Colo. 2005) (“[W]hen examining a statute’s plain

  language, we give effect to every word and render none superfluous

  because ‘[w]e do not presume that the legislature used language

  “idly and with no intent that meaning should be given to its

  language.”’”) (citations omitted).

¶ 29   “Legally” means “[i]n a lawful way; in a manner that accords

  with the law.” Black’s Law Dictionary 1032 (10th ed. 2014); see,

  e.g., Loncar v. Progressive Cty. Mut. Ins. Co., 553 S.W.3d 586, 590


                                       12
  (Tex. App. 2018) (“[I]f the insured has no legal right to recover

  anything from the vehicle’s owner or operator, whether because of

  the motorist’s lack of fault, immunity, or some other substantive

  defense, the insured is not ‘legally entitled to recover’ any damages

  against the owner or operator . . . .”); State Farm Mut. Auto. Ins. Co.

  v. Hunt, 856 N.W.2d 633, 638 (Wis. Ct. App. 2014) (“[B]y its terms,

  the statute mandates underinsured motorist coverage where the

  insured is legally entitled to obtain damages, by a judgment or

  other legal process, against the underinsured motorist.”). So, any

  entitlement to damages under section 10-4-609 must be as

  provided under the law.

¶ 30   Under the morality play of the common law, a person injured

  by the negligence of another is usually entitled to damages. But the

  WCA says otherwise, partly in response to the fellow servant rule.

  See Williams v. State Farm Mut. Auto. Ins. Co., 641 A.2d 783, 787

  (Conn. 1994) (“Whether the uninsured motorist was legally liable

  must be determined in light of any substantive defenses that would

  have been available to the uninsured motorist.”). Through this

  lens, we take another look at the statutory language.




                                     13
¶ 31   Section 10-4-609 also uses the word “recover.” The definition

  of this word includes “[t]o obtain (relief) by judgment or other legal

  process” and “[t]o obtain damages or other relief; to succeed in a

  lawsuit or other legal proceeding.” Black’s Law Dictionary 1466;

  see Mitchell v. Residential Funding Corp., 334 S.W.3d 477, 503 (Mo.

  Ct. App. 2010) (“We believe ‘recover’ and ‘recovery’ have two

  meanings as relevant to the arguments here. The first, the plain

  definition, is to get or obtain something under a claim of right, to

  collect. The second, narrower, definition is to obtain through legal

  judgment.”).

¶ 32   In short, because of coworker immunity, under either the

  broader or the narrower definition, Ryser cannot recover from

  Forster.

¶ 33   Consistent with these definitions, Colorado cases hold that

  “legally entitled” under section 10-4-609 means entitlement as

  provided under the law. In Briggs v. American Family Mutual

  Insurance Co., 833 P.2d 859, 861-62 (Colo. App. 1992), for example,

  the division explained:

             Under the statute, the insurer must pay to the
             insured, up to the limit of the policy, whatever
             losses the insured proves he or she is “legally


                                    14
             entitled to recover” from the uninsured
             motorist. Thus, the insured has the burden to
             prove that the uninsured motorist was
             negligent and the extent of the damages. This
             can be done in a judicial proceeding against
             either the uninsured motorist or the insurer, or
             in an arbitration proceeding.

  (Emphasis added.) See State Farm Mut. Auto. Ins. Co. v. Brekke,

  105 P.3d 177, 188 (Colo. 2004) (“However, section 10-4-609’s

  coverage applies only if the insured is ‘legally entitled’ to damages.

  Consequently a finding of no liability or of limited damages on the

  part of the uninsured motorist will eliminate or limit a claim under

  the insurance provider’s UM coverage.”) (emphasis added); see also

  USAA v. Parker, 200 P.3d 350, 358 (Colo. 2009) (“The language of

  the UM/UIM statute indicates that its aim is to provide the insured

  a means to recover from the insurer all of the ‘damages’ he or she is

  legally entitled to recover in an action against the tortfeasor up to

  the insured’s policy limits.”) (emphasis added).

¶ 34   But where WCA immunity protects the tortfeasor, this

  immunity is “from suit,” not just from damages. See, e.g.,

  Rodriquez v. Nurseries, Inc., 815 P.2d 1006, 1008 (Colo. App. 1991)

  (“As it pertains to the immunity from suit of a complying employer,

  the exclusivity of the Workers’ Compensation Act has been


                                     15
  continually reaffirmed . . . .”). Simply put, Ryser cannot bring a

  “judicial proceeding” or “an action” against Forster, as section

  10-4-609 contemplates (“from owners or operators of uninsured

  motor vehicles”).

¶ 35   Still, what about the interpretations in Borjas and Ashour,

  which limited the statutory requirement to proving the tortfeasor’s

  “fault,” as could easily be done in a case against a UM/UIM

  insurer? To be sure, fault is a necessary step. But under the plain

  language of section 10-4-609, it is not sufficient. Because the

  tortfeasor may have affirmative defenses, merely showing that the

  tortfeasor was at fault would not establish a legal entitlement to

  recover from an owner or operator of an uninsured motor vehicle.

  And WCA and co-employee immunity are just such defenses. Bain

  v. Town of Avon, 820 P.2d 1133, 1135 (Colo. App. 1991), overruled

  on other grounds by Bertrand v. Bd. of Cty. Comm’rs, 872 P.2d 223

  (Colo. 1994).

¶ 36   Given all of this, how does “legally entitled to recover” apply

  here? Forster was both the “operator” of Babion’s vehicle under

  section 10-4-609 as well as an insured under her policy because

  Forster was driving with Babion’s permission. Likewise, as a


                                    16
  permitted passenger, Ryser was covered by Babion’s insurance

  policy. And he meets the threshold for seeking UM/UIM benefits

  under her policy because the coworker immunity rule renders the

  driver uninsured. See Borjas, 33 P.3d at 1268 (“Negligent drivers

  and their employers who are immune from liability . . . may not be

  financially irresponsible in the sense that they lack the ability to

  pay, but from the perspective of the injured innocent driver, the

  lack of legal responsibility has the same effect.”); see also Atl. Mut.

  Ins. Co. v. Payton, 682 N.E.2d 1144, 1148 (Ill. App. Ct. 1997) (“A

  reason that the driver is deemed noninsured is because the

  Workers’ Compensation Act grants immunity from any liability

  towards a co-employee.”).

¶ 37   Even so, these undisputed facts only get Ryser so far.

  “Uninsured motorist coverage is not triggered unless an insured

  [Ryser] is legally entitled to recover damages from the [owner or]

  operator of an uninsured automobile [Forster].” Parsons v. Allstate

  Ins. Co., 165 P.3d 809, 814 (Colo. App. 2006). In other words,

  under the plain language of section 10-4-609, Ryser is not entitled

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

  damages” from Forster by virtue of the co-employee immunity rule.


                                     17
¶ 38   To Ryser, this outcome seems simplistic and even harsh. But

  it reflects the dominant view. See generally 2A A. Larson,

  Workmen’s Compensation Law § 71.23(j) (1983 & Supp. 1987)

  (“Ordinarily, for the uninsured motorist clause to operate in the first

  place, the uninsured third person must be legally subject to liability

  . . . . [I]f the third person is specifically made immune to tort suit

  by the compensation act’s exclusive remedy clause, the uninsured

  motorist provision does not come into play.”); John P. Ludington,

  Annotation, Automobile Uninsured Motorist Coverage: “Legally

  Entitled to Recover” Clause as Barring Claim Compensable Under

  Workers’ Compensation Statute, 82 A.L.R.4th 1096 (1990) (Where

  “the uninsured motorist coverage has been bought and paid for by

  someone other than the injured employee, the results have been

  uniform.”) (emphasis added). 4

                        ———————————————————————
  4 Numerous cases are in accord, holding that “where the plaintiff
  cannot maintain a claim against the [tortfeasor] due to the
  application of the co-employee rule, the plaintiff is not ‘legally
  entitled to recover’ under the uninsured motorist provision.” Kobak
  v. Sobhani, 2011-Ohio-13, ¶ 33 (citation omitted); see, e.g., Medders
  v. U.S. Fid. & Guar. Co., 623 So. 2d 979, 989 (Miss. 1993) (“[T]he
  clear meaning of the phrase legally entitled to recover . . . limits the
  scope of the coverage mandated by the statute to those instances in
  which the insured would be entitled at the time of injury to recover


                                     18
¶ 39   We consider these authorities persuasive and follow them

  here. As one court explained, “[t]he phrase ‘legally entitled to

  recover’ cannot be stretched so far as to cover situations when an

  insured could have never recovered from the uninsured motorist

  because the law did not provide for any recovery.” Otterberg v. Farm

  Bureau Mut. Ins. Co., 696 N.W.2d 24, 30 (Iowa 2005) (interpreting

  “legally entitled to recover” to require “not only that the insured

  ‘suffered damages caused by the fault of the uninsured motorist,’

  but also that the insured’s action against the uninsured motorist

  was not barred under substantive law”) (citation omitted).

¶ 40   Nor is this outcome clouded by cases allowing recovery of

  UM/UIM benefits from an employer’s insurer where the employee

  was injured by a third-party tortfeasor, who does not enjoy



                         ———————————————————————
  through legal action.”); Cormier v. Nat’l Farmers Union Prop. & Cas.
  Co., 445 N.W.2d 644, 647 (N.D. 1989) (“[T]he clear meaning of the
  language, ‘legally entitled to recover,’ imports a condition precedent
  to the uninsured motorist insurer’s obligation that the insured have
  a legally enforceable right to recover damages from the owner or
  operator of the uninsured motor vehicle.”); Aetna Cas. & Sur. Co. v.
  Dodson, 367 S.E.2d 505, 508 (Va. 1988) (“The phrase ‘legally
  entitled to recover as damages’ interposes, as a condition precedent
  . . . , the requirement that the insured have a legally enforceable
  right to recover damages from an owner or operator of an uninsured
  motor vehicle.”).

                                    19
  immunity. See McMichael, 906 P.2d at 94. After all, the linchpin of

  these cases is the tortfeasor’s lack of immunity. See William v. City

  of Newport News, 397 S.E.2d 813, 816 (Va. 1990) (employee injured

  in the course and scope of employment was entitled to UM/UIM

  benefits “where the injury was inflicted by someone other than a

  fellow-employee — a stranger to the business”); Henry v. Benyo, 506

  S.E.2d 615, 621 (W. Va. 1998) (because a plaintiff “has an

  undisputed statutory right to seek recovery from . . . the third-party

  tortfeasor chargeable with the motor vehicle accident,” the plaintiff

  is legally entitled to recover UM/UIM benefits under his or her

  employer’s policy). But tortfeasor immunity is alive and well here.

¶ 41   Despite all of this, Ryser points to cases where recovery of

  UM/UIM benefits is allowed even though the injured party cannot

  obtain an enforceable judgment against the tortfeasor. Examples

  include unidentified hit-and-run drivers, see Farmers Ins. Exch. v.

  McDermott, 34 Colo. App. 305, 308-09, 527 P.2d 918, 920 (1974),

  and bankrupt tortfeasors, see Wilkinson v. Vigilant Ins. Co., 224

  S.E.2d 167 (1976). This argument misses the mark because the

  test for UM/UIM benefits is not whether an enforceable judgment




                                    20
  has been obtained — it is whether the injured plaintiff is legally

  entitled to recover damages from the tortfeasor.

¶ 42   In McDermott, the court explained “[t]here can be no doubt as

  to the liability of the errant driver here, had his identity been

  known.” 34 Colo. App. at 308, 527 P.2d at 920. Similarly, cases

  involving bankrupt tortfeasors explain “there is nothing preventing

  [the injured plaintiff] from establishing that he is legally entitled to

  recover from [the tortfeasor] on the merits of his claims; instead,

  [the plaintiff] is merely barred, by operation of [the tortfeasor’s]

  bankruptcy discharge, from actually collecting demonstrated

  damages from her.” Easterling v. Progressive Specialty Ins. Co., 251

  So. 3d 767, 775 (Ala. 2017). Again, neither of these examples

  involves a tortfeasor who is immune from liability.

¶ 43   Not easily deterred, Ryser also cites to Torres v. Kansas City

  Fire & Marine Insurance Co., 849 P.2d 407, 410 (Okla. 1993), where

  an employee injured by a coworker received UM/UIM benefits under

  their employer’s policy. The court held, like the Ashour division,

  that the phrase “legally entitled to recover” requires only that “the

  insured must be able to establish fault on the part of the uninsured




                                     21
  motorist which gives rise to damages and prove the extent of those

  damages.” Torres, 849 P.2d at 410.

¶ 44   But Colorado cases have not extended the “establish fault”

  rationale this far. Both Ashour and Borjas involved claimants who

  sought to recover UM/UIM benefits under their own insurance

  policies. Ashour, ¶ 56; Borjas, 33 P.3d at 1266. The Ashour

  division explained: “In our view, the fact that Ashour sought

  recovery of benefits under his own insurance policy is critical . . . .

  Ashour did not seek to recover additional damages from the

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

  Ashour, ¶ 52; see Dickinson, 179 P.3d at 208 (“[W]e acknowledge

  that the statutory policies which we have reconciled may interact

  differently if a claimant . . . sought UM/UIM benefits from the

  claimant’s own insurance carrier . . . .”). And Ryser has already

  received UM/UIM benefits under his own policy. 5 He got what he

  paid for.

                        ———————————————————————
  5 We leave for another division or our supreme court to decide
  whether our interpretation of “legally entitled to recover” would
  foreclose future claims like those in Borjas and Ashour. See
  Matarese v. N.H. Mun. Ass’n Prop. Liab. Ins. Tr., Inc., 791 A.2d 175,
  182 (N.H. 2002) (“New Hampshire’s uninsured motorist statute is


                                     22
¶ 45   Ryser’s remaining arguments examine policy considerations

  related to the WCA and UM/UIM coverage. We decline to follow him

  down this path because “[p]olicy does not justify disregarding the

  plain language of [a statute].” Krol v. CF & I Steel, 2013 COA 32,

  ¶ 28 n.6; see Braata, Inc. v. Oneida Cold Storage Co., LLP, 251 P.3d

  584, 587 (Colo. App. 2010) (“[A]lthough Colorado has a strong

  public policy favoring arbitration, that policy does not trump

  statutory plain language.”); Bontrager v. La Plata Elec. Ass’n, 68

  P.3d 555, 561 (Colo. App. 2003) (“We need not address plaintiff’s

  public policy arguments because we view the relevant Colorado

  statutes as unambiguous . . . .”).

                              V. Conclusion

¶ 46   We conclude that the trial court properly granted summary

  judgment in favor of Shelter on Ryser’s claim for UM/UIM benefits.

  Having so concluded, we need not address Shelter’s alternative

                         ———————————————————————
  designed to compensate people injured in automobile accidents
  whose losses would otherwise be uncompensated because the
  tortfeasor lacked liability coverage or because the tortfeasor’s
  identity was unknown. The underlying purpose of the statute is to
  provide coverage only where there is a lack of liability insurance on
  the part of the tortfeasor and the tortfeasor would be legally liable to
  the injured driver in a tort action; it does not provide coverage in all
  situations that might go uncompensated.”) (citation omitted).

                                       23
  argument based on the “described auto” exclusion in Babion’s

  policy.

¶ 47   The judgment is affirmed.

       JUDGE FURMAN and JUDGE MÁRQUEZ concur.




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