                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         JUN 7 1999
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    RICKY ALLEN MARTINEZ,
    Personal Representative of the Estate
    of surviving spouse of Audrey Marie
    Martinez, deceased, and as father
    and next-friend of SHANTAE
    MARTINEZ, EULALIO MARTINEZ
    and JOSE MARTINEZ, the minor
    surviving children of Audrey Marie
    Martinez, deceased,

                Plaintiff-Appellant,

    v.                                                 No. 98-2153
                                                (D.C. No. CIV-96-862-MV)
    STATE FARM MUTUAL                                   (D. N.M.)
    AUTOMOBILE INSURANCE
    COMPANY, a foreign insurance
    corporation,

                Defendant-Appellee.




                             ORDER AND JUDGMENT         *




Before TACHA , BARRETT , and MURPHY , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Plaintiff brought this diversity action for a determination of underinsured

motor vehicle (UIM) coverage. Applying Colorado law to the undisputed facts,

the district court concluded that defendant State Farm Mutual Automobile

Insurance Co. had no UIM liability, and entered summary judgment accordingly.

Plaintiff moved for reconsideration pursuant to Fed. R. Civ. P. 59(e), and, when

that motion was denied, timely appealed.    1
                                                On de novo review,   see State Farm

Mut. Auto. Ins. Co. v. Blystra   , 86 F.3d 1007, 1010 (10th Cir. 1996), we affirm

for the two alternative reasons stated below.

       Plaintiff’s wife was killed and his daughter was injured in an automobile

accident in New Mexico caused by the negligence of Joseph Juhasz. Plaintiff,

as representative of his wife’s estate and father/next friend of his children, settled

all claims arising out of the accident for $195,000 payable by Mr. Juhasz’s

liability carrier and $56,500 payable by Mr. Juhasz personally.      See Appendix


1
       We agree with plaintiff that State Farm’s argument for dismissal of this
appeal as untimely is meritless. Plaintiff’s Rule 59 motion was timely filed
within ten days of the entry of judgment, excluding intermediate weekends and
legal holidays, and, thus, tolled the time for appeal until the motion was denied.
See Fed. R. Civ. P. 6, 59(e); Fed. R. App. P. 4(a)(4).

                                            -2-
of Appellant (App.) at 30. Other injured parties collected the additional $305,000

remaining under the $500,000 per-accident limit of Mr. Juhasz’s liability policy.

Thereafter, plaintiff brought this action against his own insurer, State Farm, for

a declaration of UIM coverage under two policies which had been negotiated and

purchased in Colorado.     2



       The district court first determined that, pursuant to New Mexico conflict of

law principles, Colorado law controlled the contract issues in the case.       See State

Farm Auto. Ins. Co. v. Ovitz      , 873 P.2d 979, 981 (N.M. 1994) (law of state where

accident occurred governs tortfeasor’s liability, but law of state where insurance

contract was executed governs consequent coverage issues). We agree. Indeed,

in district court, plaintiff also agreed that Colorado law controlled the coverage

questions to be decided,       see App. at 5, but now insists that the same questions

are “damages” issues which under         Ovitz must be resolved by reference to

New Mexico law, see Opening Br. at 8-9. This argument has been waived,

see, e.g. , Boyd Rosene & Assocs., Inc. v. Kansas Mun. Gas Agency          , No. 97-5216,

1999 WL 212078, at *13 n.2 (10th Cir. Apr. 13, 1999), and in any event clearly

places the coverage issues in this case on the wrong side of       Ovitz ’s distinction




2
        Under the operative contractual terms,  see App. at 11-13, we disregard the
fact that there are two redundant State Farm UIM policies involved.    See Shean v.
Farmers Ins. Exch. , 934 P.2d 835, 837-39 (Colo. Ct. App. 1996).

                                              -3-
between insurance policy questions and the determination of underlying tort

liability.

       The applicable Colorado statute, which was incorporated into the policy

under review, mandates UIM coverage as a subspecies of uninsured motorist

(UM) coverage, for damages the “insured is legally entitled to collect from the

owner or driver of an underinsured motor vehicle.” Colo. Rev. Stat.

§ 10-4-609(4). An underinsured motor vehicle is defined as

       a land motor vehicle . . . insured or bonded for bodily injury or death at the
       time of the accident, but [for which] the limits of liability for bodily injury
       or death under such insurance or bonds are:
              (a) Less than the limits for uninsured motorist coverage under the
              insured’s policy; or
              (b) Reduced by payments to persons other than an insured in the
              accident to less than the limits of uninsured motorist coverage under
              the insured’s policy.

Id. The statute also establishes an upper limit on the UM/UIM liability of the

insurance carrier:

       The maximum liability of the insurer under the uninsured motorist coverage
       provided shall be the lesser of:
             (a) The difference between the limit of uninsured motorist coverage
             and the amount paid to the insured by or for any person or
             organization who may be held legally liable for the bodily injury; or
             (b) The amount of damages sustained, but not recovered.

Colo. Rev. Stat. § 10-4-609(5). Each of these provisions bars plaintiff’s

recovery here.




                                          -4-
       Mr. Juhasz’s liability coverage of $300,000 per person and $500,000 per

accident exceeds the corresponding UIM limits of $50,000 and $100,000 in

plaintiff’s State Farm policy, precluding UIM coverage under § 10-4-609(4)(a).

Consequently, plaintiff relies on § 10-4-609(4)(b), which triggers coverage when

payments to other injured parties reduce the funds available under the tortfeasor’s

liability policy to less than the applicable UIM limits. However, subtracting

$305,000 from Mr. Juhasz’s $500,000 per accident limit still leaves a remainder

in excess of the per accident limit on plaintiff’s policy, again precluding UIM

coverage. Thus, plaintiff must argue that, in applying § 10-4-609(4)(b), the total

payout to all others injured in the accident should be deducted from the

tortfeasor’s per person limits and the result compared to the corresponding limits

on plaintiff’s UIM coverage.

       The district court rejected this argument, citing several decisions from other

states which have concluded that per accident, not per person, limits control UIM

coverage issues in multiple-claimant situations.   See App. at 39 n.1. The court

buttressed its decision, which it acknowledged would not leave plaintiff fully

compensated for his loss, by noting that the purpose of the Colorado UIM scheme

“is not to guarantee full compensation for a claimant’s injuries but rather is ‘to

place the injured party having [UIM] coverage in the same position as if the

underinsured had liability limits in amounts equal to the insured’s coverage. That


                                            -5-
will not necessarily result in the injured being compensated to the full extent of

his or her injuries.’”   Id. at 40 (quoting Leetz v. Amica Mut. Ins. Co. , 839 P.2d

511, 513 (Colo. Ct. App. 1992)).

       On appeal, plaintiff argues the district court should have followed another

line of (non-Colorado) authority, in particular     State Farm Mutual Automobile

Insurance Co. v. Valencia , 905 P.2d 202 (N.M. Ct. App. 1995), which would

support resort to the per person limit here. We disagree. The district court’s

reliance on the per accident limit is consistent with the only pertinent Colorado

case law. In a related factual context, the    Leetz court stated without qualification

“that, when more than one person is injured, it is the per accident limit which

must be used to determine whether [UIM] coverage applies,” specifically noting

its agreement with the very same non-Colorado authorities relied on by the district

court here. Leetz , 839 P.2d at 513. This general rule was reaffirmed and

extended in Shean v. Farmers Insurance Exchange        , 934 P.2d 835, 840 (Colo. Ct.

App. 1996), which held that the per accident limit also controls the application

of § 10-4-609(5)’s cap on UIM liability “just as a per accident limit is used to

determine whether [UIM] coverage applies [under        Leetz ’s construction of

§ 10-4-609(4)].”

       Indeed, Shean ’s recognition of the per-accident principle in the context

of the UIM liability limit under § 10-4-609(5) points up an alternative basis for


                                              -6-
affirmance of the district court’s disposition. Under the plain language of this

section, quoted above, the UIM insurer’s liability is limited “to the gap between

the amount an insured receives from an underinsured driver and the insured’s

UIM policy limits.”    Freeman v. State Farm Mut. Auto. Ins. Co.    , 946 P.2d 584,

585 (Colo. Ct. App. 1997). Thus, the maximum UIM benefit for the injured

party is subject to a set-off for all payments already received from the tortfeasor.

See, e.g. , Carlisle v. Farmers Ins. Exch.   , 946 P.2d 555, 557 (Colo. Ct. App. 1997);

Shean , 934 P.2d at 839-40. As noted above, plaintiff received a total of $251,500

from Mr. Juhasz and his carrier--leaving no gap at all between actual recovery

and the maximum UIM benefit of $100,000. Thus, even if plaintiff had

established the existence of UIM coverage under § 10-4-609(4), the limit

specified in § 10-4-609(5)(a) would bar recovery under such coverage as

exceeding State Farm’s maximum UIM liability in any event.

       The purpose of Colorado’s UIM scheme is to place injured parties in the

same financial position they would have been in if the tortfeasor had available

liability coverage equal to their UIM coverage.      See Shean , 934 P.2d at 840.

See generally Estate of Harry ex rel. Harry v. Hawkeye-Security Ins. Co.      ,

972 P.2d 279, 281 (Colo. Ct. App. 1998) (“The purpose of UM/UIM coverage is

to compensate an insured for loss caused by . . . financially irresponsible

motorists, subject to the insured’s policy limits   .” (emphasis added)). Here,


                                             -7-
plaintiff was left in a significantly better position than if Mr. Juhasz had paid

him the $100,000 his UIM coverage assured him of receiving.

      The judgment of the United States District Court for the District of

New Mexico is AFFIRMED.



                                                     Entered for the Court



                                                     Deanell Reece Tacha
                                                     Circuit Judge




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