         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
                                                               March 8, 2018

                                2018COA32

No. 17CA0019 Meardon v. Freedom Life Insurance— Health
Insurance — Remedies for Unreasonable Delay or Denial of
Benefits — Federal Supremacy — Preemption —
McCarran-Ferguson Act

     A division of the court of appeals considers, as a matter of first

impression, whether a mandatory arbitration clause in a health

care insurance policy is displaced by section 10-3-1116(3), C.R.S.

2017, which allows denied claims to be contested in court before a

jury. The division holds that the policy’s conformity clause

invalidates the arbitration clause for those claims covered by

section 10-3-1116(3). The division further holds that the Federal

Arbitration Act (FAA) does not preempt section 10-3-1116(3)

because the McCarran-Ferguson Act preempts the FAA under the

doctrine of reverse-preemption. Accordingly, the division affirms

the trial court’s order as to those claims that fall within the ambit of
the statute, but reverses the court’s order as to those claims that

fall outside the scope of the statute. The division remands the case

for the trial court to determine which claims fall within the statute

and which clams do not.

     The dissent would reverse the trial court’s order denying

Freedom Life’s motion to compel arbitration and remand this case

to the trial court to grant that motion and then to dismiss this case.
COLORADO COURT OF APPEALS                                      2018COA32


Court of Appeals No. 17CA0019
City and County of Denver District Court No. 16CV32553
Honorable Catherine A. Lemon, Judge


Kathryn D. Meardon,

Plaintiff-Appellee,

v.

Freedom Life Insurance Company of America and Robert J. Pavese,

Defendants-Appellants.


               ORDER AFFIRMED IN PART, REVERSED IN PART,
                 AND CASE REMANDED WITH DIRECTIONS

                                 Division VII
                         Opinion by JUDGE FREYRE
                             Berger, J. concurs
                            Bernard, J., dissents

                          Announced March 8, 2018


Meier & Giovanini, LLC, Doug E. Meier, Lakewood, Colorado, for Plaintiff-
Appellee

Lewis Roca Rothgerber Christie LLP, Hilary D. Wells, Frances Scioscia Staadt,
Denver, Colorado, for Defendants-Appellants
¶1    The defendants, Freedom Life Insurance Company of America

 and Robert J. Pavese (collectively Freedom Life), denied health

 insurance benefits claimed by plaintiff Kathryn D. Meardon under a

 health insurance policy (policy) issued to her by Freedom Life. We

 must decide a novel issue: whether that policy’s mandatory

 arbitration clause is displaced by section 10-3-1116(3), C.R.S.

 2017, which allows denied claims to be contested in court before a

 jury. We conclude that it is.

¶2    The policy purchased by Ms. Meardon sets forth a three-step

 procedure for contesting a denied claim. Step one is negotiation,

 step two is mediation, and step three is binding arbitration. At

 issue here is the last step — final and binding arbitration; the policy

 expressly prohibits the filing of any state or federal court action.

 Section 10-3-1116(3), by contrast, provides that an insured who is

 wholly or partially denied a claim for health benefits “shall be

 entitled” to de novo review in any court with jurisdiction and to a

 trial by a jury, after exhausting administrative remedies. Thus, the

 question before us is whether Ms. Meardon is bound by the policy’s

 arbitration clause or whether she may seek relief from a jury in a

 court.


                                    1
¶3    To resolve this case, we first analyze the “conformity clause”

 that Freedom Life elected to include in its policy. Then we address

 the difficult issues presented both by the Federal Arbitration Act

 (FAA), 9 U.S.C. §§ 1-16 (2012), and the arcane doctrine of reverse-

 preemption under the McCarren-Ferguson Act, 15 U.S.C. §§ 1011-

 1015 (2012), which may or may not preempt section 10-3-1116(3)

 and render the arbitration clause operative.

¶4    Freedom Life appeals the trial court’s order that denied their

 motion to dismiss or compel arbitration. Because we conclude that

 the state statute displaces the arbitration clause for those claims

 that fall within the ambit of the statute, we affirm the trial court’s

 order as to those claims. However, because some of Ms. Meardon’s

 claims fall outside the scope of the statute, we reverse the court’s

 order to that extent and remand with directions.

                            I.   Background

¶5    Ms. Meardon alleged that Mr. Pavese, acting as a Freedom Life

 insurance agent, sold her a policy that did not comply with the

 Affordable Care Act, even though she requested one. She further

 alleged that the policy did not cover a pre-existing condition, which

 the Act also required.


                                    2
¶6    Later that year, Ms. Meardon underwent surgery, and she

 submitted a claim to Freedom Life. Freedom Life denied the claim

 because it decided that the surgery resulted from a pre-existing

 condition that was not covered by the plan. Ms. Meardon tried to

 resolve the dispute by sending letters and documents showing that

 the surgery did not result from her pre-existing condition. Freedom

 Life reaffirmed its decision to deny Ms. Meardon’s claim, and she

 filed this lawsuit.

¶7    Freedom Life moved to compel arbitration and to dismiss the

 case. It relied on the policy’s mandatory arbitration clause, which

 states as follows:

      (1)   The policyholder was required to resolve “[a]ny [d]ispute”

            through “mandatory and binding arbitration.” (The

            policy defines “[d]ispute” to include practically every

            claim “in any way arising out of or pertaining to, or in

            connection with th[e] policy.”)

      (2)   The policyholder does not have a right to seek resolution

            of her claim in a federal or state court.

      (3)   If the policyholder tries to file a complaint in a federal or

            state court, the court should dismiss the complaint.


                                     3
¶8     The policy also contains a “conformity clause,” which states

  that “[a]ny provision of this [p]olicy which, on its effective date, is in

  conflict with the laws of the state in which [y]ou live on that date, is

  amended to conform to the minimum requirements of such laws.”

¶9     The trial court denied Freedom Life’s arbitration motion.

  Relying on the conformity clause, the court decided that (1) section

  10-3-1116(3) gives a policy holder a right to a judicial resolution of

  her claim; and (2) this statutory right voids the policy’s arbitration

  clause. Expanding on the second point, the court wrote that

  subsection 1116(3) “effectively forbids mandatory arbitration

  clauses in [health insurance] policies, and confers specifically

  upon . . . policy holders the statutory right to pursue denial of

  benefits claims in a court before a jury.”

                               II.   Analysis

¶ 10   Freedom Life contends that (1) section 10-3-1116(3) cannot be

  applied because it is preempted by federal law, namely the FAA; (2)

  even if the FAA does not preempt the statute, the arbitration clause

  remains in effect for those claims that fall outside the statute; and

  (3) Ms. Meardon must arbitrate her claims to “exhaust her

  administrative remedies” under section 10-3-1116(3). It further


                                      4
  argues that even if, as a matter of contract law, the conformity

  clause operates to invalidate the arbitration clause, under FAA

  preemption rules, the arbitration clause prevails.

¶ 11   Ms. Meardon responds that the trial court correctly interpreted

  the conformity clause to invalidate the arbitration clause, and that

  even if FAA preemption would otherwise prohibit this operation of

  the conformity clause, reverse-preemption, a doctrine unique to

  statutes that regulate the insurance business, preempts FAA

  preemption (thus the term “reverse-preemption”). We proceed to

  separately address the effects of the conformity clause and the

  various preemption arguments and counterarguments.

              A.   Standard of Review and Legal Principles

¶ 12   We must interpret the policy and subsection 1116(3) to resolve

  this appeal. We review questions of statutory interpretation and

  insurance contract interpretation de novo. Goodman v. Heritage

  Builders, Inc., 2017 CO 13, ¶ 5; Allstate Ins. Co. v. Huizar, 52 P.3d

  816, 819 (Colo. 2002).

¶ 13   When we interpret a statute, we must ascertain and give effect

  to the legislature’s intent. Colo. Dep’t of Revenue v. Creager

  Mercantile Co., 2017 CO 41M, ¶ 16. “We construe the entire


                                     5
  statutory scheme to give consistent, harmonious, and sensible

  effect to all parts,” and “we give effect to words and phrases

  according to their plain and ordinary meaning.” Denver Post Corp.

  v. Ritter, 255 P.3d 1083, 1089 (Colo. 2011). If a statute’s language

  is clear, we apply it as written. Id. But “[i]f the statutory language

  is ambiguous, we may use other tools of statutory interpretation to

  determine the General Assembly’s intent.” Id.

¶ 14   Similarly, the words of an insurance policy “should be given

  their plain meaning according to common usage, and strained

  constructions should be avoided.” Allstate Ins. Co., 52 P.3d at 819.

  As pertinent here, “[b]ecause of the policy favoring arbitration, we

  construe any ambiguities [in the insurance policy] in favor of

  arbitration, and when an arbitration clause is broad or

  unrestricted, the strong presumption favoring arbitration applies

  with even greater force.” BFN-Greeley, LLC v. Adair Grp., Inc., 141

  P.3d 937, 940 (Colo. App. 2006). “A valid and enforceable

  arbitration provision divests the courts of jurisdiction over all

  disputes that are to be arbitrated pending the conclusion of

  arbitration.” Mountain Plains Constructors, Inc. v. Torrez, 785 P.2d

  928, 930 (Colo. 1990).


                                     6
                         B.    Conformity Clause

¶ 15   Parties to an insurance contract cannot agree to disregard

  statutory requirements. See Peterman v. State Farm Mut. Auto. Ins.

  Co., 961 P.2d 487, 492 (Colo. 1998) (examining a consent-to-sue

  clause in an insurance contract and explaining that “[p]arties may

  not privately contract to abrogate statutory requirements or

  contravene the public policy of this state”). To reflect this reality,

  Freedom Life elected to include a conformity clause in its insurance

  policy. The general effect of a conformity clause is to modify the

  contract to conform to the laws in the insured’s state. See 2 Steven

  Plitt, Daniel Maldonado, Joshua D. Rogers & Jordan R. Plitt, Couch

  on Insurance § 19:3, Westlaw (3d ed. database updated Dec. 2017).

  A conformity clause can be triggered when an insurer is prohibited

  from, or required to, include a certain provision in the policy. Id.

  Thus, when an insurance policy contains a conformity clause, that

  clause amends the policy terms that conflict with state law. See

  Traders & Gen. Ins. Co. v. Pioneer Mut. Comp. Co., 127 Colo. 516,

  517-19, 258 P.2d 776, 777 (1953) (finding that a conformity clause

  requiring conformity to the motor vehicle financial responsibility law

  made the statute part of the insurance contract); see also Peters v.


                                      7
  Time Ins. Co., No. 10-CV-02962-RPM, 2011 WL 2784291 (D. Colo.

  July 14, 2011) (unpublished opinion) (concluding that a conformity

  clause reformed the pre-existing condition exclusion in the

  insurance policy to conform with the state statute); Burke v. First

  Unum Life Ins. Co., 975 F. Supp. 310, 316 (S.D.N.Y. 1997) (finding

  that policy’s conformity clause “dictates that the policy be

  considered as if it contained the statutory language”); Ill. Farmers

  Ins. Co. v. Glass Serv. Co., 683 N.W.2d 792, 802 (Minn. 2004)

  (“When an insurance policy contains a conformity clause, as

  Farmers’ policies do, that clause amends all policy terms in conflict

  with Minnesota law to conform to those laws.”).

¶ 16   Importantly, a predicate for operation of the conformity clause

  is a true conflict with state law. A mere “difference” between the

  contract and state law is insufficient to trigger the conformity

  clause. See Grant Farms, Inc. v. Colo. Farm Bureau Mut. Ins. Co.,

  155 P.3d 537, 538 (Colo. App. 2006) (“A statute and [a] policy

  provision are not ‘in conflict’ merely because they are different from

  one another.”).

¶ 17   As previously noted, subsection 1116(3) unambiguously

  entitles an insured to a de novo review in a court with jurisdiction,


                                     8
  and to a jury trial of denied claims. In contrast, the operative

  language in the arbitration clause states that

            no Disputes arising between the parties shall
            be decided in Federal or State courts or before
            a judge or jury and the courts shall bar and
            dismiss any such attempted litigation.

¶ 18   In contrast, section 10-3-1116(3) provides

            An insurance policy, insurance contract, or
            plan that is issued in this state shall provide
            that a person who claims health, life, or
            disability benefits, whose claim has been
            denied in whole or in part, and who has
            exhausted his or her administrative remedies
            shall be entitled to have his or her claim
            reviewed de novo in any court with jurisdiction
            and to a trial by jury.

¶ 19   The plain words of the statute conflict with the mandatory

  arbitration clause: the statute guarantees to insureds such as Ms.

  Meardon a forum in court before a jury and the arbitration clause

  plainly prohibits such a lawsuit.1 This conflict triggered the policy’s




  1 Freedom Life does not contend that Ms. Meardon may exercise her
  rights to a de novo trial after arbitration. To the contrary, Freedom
  Life asserts that the mandatory arbitration clause precludes any
  court action by Ms. Meardon either before or after the completion of
  arbitration. The dissent appears to concede that once arbitration is
  completed, Ms. Meardon has no right under the statute, or
  otherwise, to have her claims reviewed or decided in court, much
  less by a jury.

                                     9
  conformity clause.2 Application of the policy’s conformity clause

  results in the invalidation of the policy’s arbitration clause.

  Accordingly, as the trial court held, after operation of the conformity

  clause, there was no arbitration clause to enforce.3

¶ 20   This conclusion, however, does not resolve all issues.

  Freedom Life appears to argue that operation of the conformity

  clause is itself preempted by the FAA.4 Put another way, Freedom




  2 Although not argued by the parties, we note that section 10-3-
  1116(3) actually requires that the insurance policy “shall provide”
  that a person who claims health benefits is entitled to de novo court
  review and jury trial. Ms. Meardon’s policy did not provide this
  review and is, thus, does not conform to the statute.
  3 Section 10-3-1116(3) expressly requires exhaustion of

  administrative remedies as a condition precedent to the exercise of
  the rights granted by the statute. The parties do not address what,
  if any, administrative remedies, such as mediation, may remain, so
  we do not address whether Ms. Meardon has yet exhausted all of
  those remedies. But, based on our analysis, arbitration is not an
  administrative remedy in this case, because it precludes judicial
  review. These questions are for the trial court to determine on
  remand.
  4 We reject Freedom Life’s argument that Ms. Meardon did not

  preserve the reverse-preemption argument in the trial court and is
  precluded from raising it on appeal. As an appellee, Ms. Reardon
  may defend the trial court’s judgment on any grounds supported by
  the record. See Atl. Richfield Co. v. Whiting Oil & Gas Corp., 2014
  CO 16, ¶ 19 n.6 (“It is settled law that a respondent may defend the
  judgment of the trial court or the court of appeals on any ground
  supported by the record, so long as the party’s rights are not

                                     10
  Life seems to say that a conformity clause can only operate to

  invalidate contract provisions that are in conflict with a valid state

  law and that section 10-3-1116(3) does not qualify because it

  conflicts with, and therefore is invalidated by, the FAA. We reject

  this argument because even if the operation of the conformity

  clause were so limited, FAA preemption is itself reverse-preempted

  by the McCarran-Ferguson Act, 15 U.S.C. § 1012(b) (2012). That

  statute exempts state laws enacted for the purpose of regulating the

  insurance business from FAA preemption. The end result is that

  section 10-3-1116(3) is a valid statute notwithstanding the FAA,

  and the conformity clause operates to displace the arbitration

  clause.

¶ 21   Generally, to the extent a state law conflicts with the FAA, that

  state law is preempted by operation of the Supremacy Clause of the

  United States Constitution, U.S. Const. art. VI, cl. 2. Preston v.

  Ferrer, 552 U.S. 346, 349 (2008). The United States Supreme Court

  repeatedly has ruled that, “[b]y enacting § 2 [FAA], we have several

  times said, Congress precluded States from singling out arbitration



  increased under the judgment.” (quoting Farmers Grp., Inc. v.
  Williams, 805 P.2d 419, 428 (Colo. 1991))).

                                    11
  provisions for suspect status, requiring instead that such

  provisions be placed ‘upon the same footing as other contracts.’ . . .

  The FAA thus displaces [state statutes] with respect to arbitration

  agreements covered by the Act.” Doctor’s Assocs., Inc. v. Casarotto,

  517 U.S. 681, 687 (1996).

¶ 22   However, the McCarran-Ferguson Act provides a narrow

  exception to FAA preemption. It provides in relevant part as

  follows:

             No Act of Congress shall be construed to
             invalidate, impair, or supersede any law
             enacted by any State for the purpose of
             regulating the business of insurance . . .
             unless such Act specifically relates to the
             business of insurance . . . .

  15 U.S.C. § 1012(b).

¶ 23   Thus, the McCarran-Ferguson Act exempts a state law from

  FAA preemption if the state law is enacted for the purpose of

  regulating the business of insurance and if the federal statute —

  here the FAA — does not specifically relate to the business of

  insurance. Allen v. Pacheco, 71 P.3d 375, 382 (Colo. 2003); see also

  21 Williston on Contracts § 57:178, Westlaw (4th ed. database

  updated July 2017) (“Because of McCarran-Ferguson . . . the



                                    12
  majority of courts have held that states may enact and enforce

  statutes that make mandatory arbitration agreements in insurance

  policies void or unenforceable in whole or in part.”).

¶ 24   In Allen, 71 P.3d at 384, the Colorado Supreme Court

  recognized the effect of the McCarran-Ferguson Act on a health

  insurance statute that might otherwise be preempted by the FAA.

  See 71 P.3d at 384 (applying reverse-preemption to invalidate an

  arbitration clause in a health insurance contract that conflicted

  with the HCAA, § 13-64-403(3), (4), & (5), 5 C.R.S. 2002); see also

  S. Pioneer Life Ins. Co. v. Thomas, 385 S.W.3d 770, 774 (Ark. 2011)

  (finding that the McCarran-Ferguson Act precludes FAA preemption

  of a state statute regulating insurance); Cont’l Ins. Co. v. Equity

  Residential Props. Tr., 565 S.E.2d 603, 605-06 (Ga. Ct. App. 2002)

  (holding that McCarran-Ferguson Act bars FAA preemption of a

  state statute that precludes insurance policy arbitration clauses);

  Scott v. Louisville Bedding Co., 404 S.W.3d 870, 880 (Ky. Ct. App.

  2013) (concluding that FAA did not preempt state statute exempting

  insurance contracts from arbitration); Speece v. Allied Prof’ls Ins.

  Co., 853 N.W.2d 169, 174-75 (Neb. 2014) (validating a state statute

  enacted to regulate the insurance business under


                                     13
  reverse-preemption and concluding the FAA did not relate

  specifically to the insurance business).

¶ 25   Regarding the second and third requirements for

  reverse-preemption, Freedom Life does not argue that the FAA

  “relates to the business of insurance,” or that subsection 1116(3)

  was not enacted for the purpose of regulating the business of

  insurance. Any such arguments would be frivolous.5

¶ 26   We respectfully reject the dissent’s analysis of section

  10-3-1116(3) for three reasons. First, because there is nothing

  ambiguous about that statute (and neither party has asserted that

  there is), we may not consider its legislative history. People v.

  Luther, 58 P.3d 1013, 1015 (Colo. 2002). The dissent bases most of

  its argument on its conclusion that the General Assembly did not

  intend to displace mandatory arbitration provisions. But that is not

  the plain import of the words of the statute.




  5At oral argument, Freedom Life presented a variation on the
  arguments it briefed. It argued that under preemption principles,
  only a statute that by its express terms precludes arbitration can
  act to displace a mandatory arbitration agreement. We do not
  address arguments made for the first time at oral argument. See
  Rucker v. Fed. Nat’l Mortg. Ass’n, 2016 COA 114, ¶ 35.

                                    14
¶ 27   Second, we find irrelevant the Employee Retirement Income

  Security Act (ERISA) cases on which the dissent relies. This is not

  an ERISA case and whether the complexities of ERISA law affect the

  enforceability of section 10-3-1116(3) simply has no relevance to

  this case.

¶ 28   Third, we are concerned that the dissent’s analysis transcends

  our obligation to decide the issues presented to us by the parties.

  Indeed, Freedom Life concedes that “issues that do not appear in

  the record are not appropriate for consideration on appeal.” See

  Melat, Pressman & Higbie, L.L.P. v. Hannon Law Firm, L.L.C., 2012

  CO 61, ¶ 18 (“It is axiomatic that issues not raised in or decided by

  a lower court will not be addressed for the first time on appeal.”);

  see also Andrew Low, Neither Briefed Nor Argued, 38 Colo. Law. 87

  (Sept. 2009).

                   C.    Claims Subject to Arbitration

¶ 29   Freedom Life alternatively contends that only those claims

  covered by section 10-3-1116(3) are exempted from the arbitration

  clause and that the remaining claims must be arbitrated. While

  this may be true, the parties did not seek a ruling from the trial

  court on this specific issue, but only argued the application of the


                                    15
  arbitration clause generally. Under these circumstances, we are

  unable to decide what claims are subject to the arbitration clause.

  See Micciche v. Billings, 727 P.2d 367, 373 (Colo. 1986) (“In the

  absence of a fully developed factual record and adequate findings of

  fact, however, we cannot determine whether that equitable doctrine

  should be applied here. We leave it to the hearing officer to resolve

  this issue on remand of the case.”). Therefore, on remand the trial

  court must determine which claims are covered by section 10-3-

  1116(3) and which are not.

                            III.   Conclusion

¶ 30   We affirm the court’s order denying arbitration of those claims

  covered by section 10-3-1116(3). We remand the case for the trial

  court to decide which claims fall under section 10-3-1116(3) (and

  are exempt from arbitration), and which claims are subject to the

  policy’s arbitration clause. The trial court retains substantial

  discretion to manage the claims subject to arbitration and those not

  subject to arbitration to avoid delays and unnecessary expense.

       JUDGE BERGER concurs.

       JUDGE BERNARD dissents.




                                    16
       JUDGE BERNARD, dissenting.

¶ 31   Aristotle wrote that, “[i]f you would understand anything,

  observe its beginning and its development.” It is my view that the

  key to this case is found in the origins of sections 10-3-1115

  and -1116, C.R.S. 2017, which the legislature enacted in 2008. Ch.

  422, sec. 5, §§ 10-3-1115, -1116, 2008 Colo. Sess. Laws 2172-74.

  After reviewing the ancestry of those two sections, I conclude that

  subsection 1116(3) does not void the arbitration clause in the policy

  in this case because the legislature did not intend that it should

  apply to arbitration clauses. I therefore respectfully dissent.

¶ 32   As is pertinent to my analysis, section 10-3-1115 creates a

  duty. Subsection 1115(1) prohibits an insurer from “unreasonably

  delay[ing] or deny[ing] . . . a claim for benefits owed to or on behalf

  of a first-party claimant.” Subsection 1115(2) states that a delay or

  denial of a claim is unreasonable if there was no “reasonable basis

  for [the] action.”

¶ 33   Section 10-3-1116 provides the remedy for a breach of the

  duty established by subsection 1115(1). Subsection 1116(1)

  provides that an insured “whose claim for payment of benefits has

  been unreasonably delayed or denied may bring an action in a


                                     17
  district court to recover reasonable attorney fees and court costs

  and two times the covered benefit.” Subsection 1116(2) prohibits

  an insurance policy from “contain[ing] a provision purporting to

  reserve discretion to the insurer . . . to interpret the terms of the

  policy . . . or to determine eligibility for benefits.”

¶ 34   Subsection 1116(3) concerns insurance policies that provide

  “health, life, or disability benefits.” It states that, if an insurer has

  partially or completely denied a claim for such benefits, then those

  policies “shall provide” that an insured (1) who “has exhausted his

  or her administrative remedies”; (2) is “entitled to have his or her

  claim reviewed de novo in any court with jurisdiction and to a trial

  by jury.” Id.

¶ 35   Where did these two statutes come from? I think that the

  answer to this question can be found in an ongoing controversy

  about something called a “discretionary clause.”

¶ 36   Discretionary clauses often read something like this: “Insurer

  has full discretion and authority to determine the benefits and

  amounts payable [as well as] to construe and interpret all terms

  and provisions of the plan.” John Morrison & Jonathan McDonald,

  Exorcising Discretion: The Death of Caprice in ERISA Claims


                                       18
  Handling, 56 S.D. L. Rev. 482, 483 (2011). These clauses became

  common in the early 1990s, id. at 482, after the United States

  Supreme Court decided Firestone Tire & Rubber Co. v. Bruch, 489

  U.S. 101, 115 (1989), see Shawn McDermott, CRS § 10-3-1116,

  ERISA Preemption, and the Standard of Review, 39 Colo. Law. 75

  (July 2010).

¶ 37   Firestone Tire addressed the following issue concerning health,

  life, or disability policies that were governed by the Employee

  Retirement Income Security Act, which is known as ERISA: What

  standard of review should a federal district court use when deciding

  whether an insurer had improperly denied benefits? The Supreme

  Court held that de novo review was the proper standard, “unless

  the benefit plan gives the administrator or fiduciary discretionary

  authority to determine eligibility for benefits or to construe the

  terms of the plan.” Firestone Tire, 489 U.S. at 115. But, if a health

  plan’s language gives its administrator such discretionary

  authority, then federal district courts reviewing ERISA claims must

  apply the abuse of discretion standard to the administrator’s

  decision to deny benefits. Metro. Life Ins. Co. v. Glenn, 554 U.S.

  105, 111 (2008); Firestone Tire, 489 U.S. at 109, 115. The


                                    19
  difference between de novo review and deferential arbitrary and

  capricious review is meaningful. See King v. Hartford Life &

  Accident Ins. Co., 414 F.3d 994, 998-1000 (8th Cir.

  2005)(comparing de novo and abuse of discretion review of an

  administrator’s decision).

¶ 38    The proliferation of discretionary clauses caught the attention

  of the National Association of Insurance Commissioners. The

  Commissioners were bothered by what they perceived as a conflict

  of interest that arose when “the claims adjudicator [— who is often

  the plan’s administrator —] is also the insurer that pays the

  benefit.” McDermott, 39 Colo. Law. at 75. So, in 2002, they drafted

  a model act, which was entitled “Prohibition on the Use of

  Discretionary Clauses Model Act.” Joshua Foster, Note, ERISA,

  Trust Law, and the Appropriate Standard of Review: A De Novo

  Review of Why the Elimination of Discretionary Clauses Would Be an

  Abuse of Discretion, 82 St. John’s L. Rev. 735, 744-45 (Spring

  2008). The model act showed state legislatures how to pass laws

  that prohibited discretionary clauses in health insurance contracts.

  Id.




                                    20
¶ 39   As of 2015, almost twenty-five states had either banned or

  limited discretionary clauses in health insurance policies governed

  by ERISA, or they were in the process of doing so. Owens v. Liberty

  Life Assurance Co., 184 F. Supp. 3d 580, 584 (W.D. Ky. 2016). The

  means to effect the ban or the limitation varied, including statutes,

  administrative rules, or interpretations issued by a state’s

  insurance commissioner. McDermott, 39 Colo. Law. at 76.

¶ 40   Colorado was one of those twenty-five states. Id.; Radha A.

  Pathak, Discretionary Clause Bans & ERISA Preemption, 56 S.D. L.

  Rev. 500, 504 n.30 (2011); Morrison & McDonald, 56 S.D. L. Rev. at

  488 nn.44-45. The means that it chose to ban discretionary

  clauses was statutory, in the form of subsections 1116(2) and

  1116(3). McDermott, 39 Colo. Law. at 76. More specifically,

  subsection 1116(2) banned the discretionary clauses, and

  subsection 1116(3) made it clear that a court reviewing an insurer’s

  decision to deny an insured’s benefits must apply the de novo

  standard.

¶ 41   But what about the reference to a right to a jury trial in

  subsection 1116(3)? At least eight federal circuit courts of appeal,

  including the Tenth Circuit, have held that insureds who file claims


                                    21
  for ERISA benefits are not entitled to jury trials because their

  claims are equitable in nature. Graham v. Hartford Life & Accident

  Ins. Co., 589 F.3d 1345, 1355-57 n.5 (10th Cir. 2009)(collecting

  cases); see also McDermott, 39 Colo. Law. at 79 (“[Federal] [t]rials to

  the court in ERISA cases are rare. Jury trials do not exist.”). It is

  therefore obvious to me that subsection 1116(3) was designed to

  avoid the federal prohibition of jury trials. It instead gave an

  insured a right to a jury trial in state court when he or she filed a

  claim under subsection 1116(1), which alleged that the plan

  administrator had unreasonably denied or delayed a claim for

  benefits. See McDermott, 39 Colo. Law. at 79 (Subsection 1116(3)

  “specifically included the right of an ERISA claimant to a jury

  trial.”).

¶ 42    (I note that there is an open question whether ERISA preempts

  subsection 1116(3)’s jury trial right. See Shafer v. Metro. Life Ins.

  Co., 80 F. Supp. 3d 1244, 1255-57 (D. Colo. 2015)(concluding that

  ERISA preempted subsection 1116(3) in its entirety because the

  statutory jury trial right “undermine[d]” ERISA by “inhibit[ing]

  prompt adjudication by the judiciary.”). But I do not need to cross




                                    22
  this bridge to conclude that subsection 1116(3) did not void the

  arbitration clause in this case.)

¶ 43   Based on this background, I think that our legislature

  intended subsections 1116(2) and (3) to change the standard of

  reviewing an insurer’s decision to deny benefits from abuse of

  discretion review to de novo review and the identity of the entity

  reviewing that decision from a court to a jury. See Lewis v. Taylor,

  2016 CO 48, ¶ 20 (“The primary goal of statutory interpretation is

  to ascertain and give effect to the legislature’s intent.”); 2A Norman

  J. Singer & Shambie Singer, Sutherland Statutes and Statutory

  Construction §§ 48.3 (7th ed. 2014) (“Courts look to a statute’s

  contemporary history and historical background as aids to

  interpretation. . . . [C]ourts generally turn to a law’s pre-enactment

  history to discover its purpose, or object, or the mischief at which it

  was aimed, when the statute’s language is inadequate to reveal

  legislative intent. . . . Courts discussing an act’s legal history

  usually are speaking more specifically about prior statutes on the

  same subject, and recent statutes on similar subjects, and the case

  law interpreting such legislation.” (footnotes omitted)). The




                                      23
  subsections did not have anything to do with voiding arbitration

  clauses.

¶ 44   For the following reasons, I conclude that the plain language

  of subsections 1116(2) and (3) supports my view of the legislature’s

  intent. See Lewis, ¶ 20 (To determine the legislature’s intent, “we

  look to the plain meaning of the statutory language and consider it

  within the context of the statute as a whole.”).

¶ 45   First, neither subsection includes the words “arbitrate” or

  “arbitration.” And courts do not add language to statutes when

  interpreting them. See Spahmer v. Gullette, 113 P.3d 158, 162

  (Colo. 2005)(“We will not create an addition to a statute that the

  plain language does not suggest or demand.”); Carruthers v. Carrier

  Access Corp., 251 P.3d 1199, 1204 (Colo. App. 2010)(“[W]e will not

  interpret a statute to mean that which it does not express.”).

¶ 46   The legislature knows how to modify or invalidate arbitration

  clauses if it wants to do so. See § 13-64-403(1), C.R.S. 2017 (“It is

  the intent of the general assembly that . . . no medical malpractice

  insurer shall require a health care provider to utilize arbitration

  agreements as a condition of providing medical malpractice

  insurance . . . .”); see also Allen v. Pacheco, 71 P.3d 375, 384 (Colo.


                                    24
  2003)(“Because the agreement here does not comply with sections

  13-64-403(3) and (4) . . . the agreement is unenforceable and [the

  plaintiff] is not required to submit her wrongful death claim to

  binding arbitration.”). The legislature’s silence about arbitration in

  subsection 1116(3) is therefore more than deafening; it is clear

  proof that the legislature did not intend the subsection to void

  arbitration clauses.

¶ 47   Second, Colorado favors arbitration. See Meister v. Stout,

  2015 COA 60, ¶ 10; BFN-Greeley, LLC v. Adair Grp., Inc., 141 P.3d

  937, 940 (Colo. App. 2006). And a broad or unrestricted arbitration

  clause, such as the one in this case, gives greater force to the

  presumption in favor of arbitration. See Meister, ¶ 10.

¶ 48   Third, the phrase “has exhausted his or her administrative

  remedies” that appears in subsection 1116(3) indicates to me that

  an insured must go through whatever arbitration process the policy

  requires before he or she may even consider filing a lawsuit. In

  Timm v. Prudential Insurance Co. of America, 259 P.3d 521, 529

  (Colo. App. 2011), the division stated that “[a]n ERISA cause of

  action generally accrues when a plan administrator denies a claim

  for benefits. A participant must therefore generally exhaust


                                    25
  administrative remedies before seeking judicial relief.” (Citation

  omitted.) This statement was based on a citation to Held v.

  Manufacturers Hanover Leasing Corp., 912 F.2d 1197, 1206 (10th

  Cir. 1990), which referred to a “[p]lan’s administrative remedies.”

  (Emphasis added.)

¶ 49   Federal courts have included arbitration within the class of

  administrative remedies that must be exhausted. “[I]f the plan

  contains an arbitration clause, the plaintiff must arbitrate the

  dispute in accordance with the clause in order to exhaust his

  administrative remedies before filing suit in federal court.” Chappel

  v. Lab. Corp. of Am., 232 F.3d 719, 724 (9th Cir. 2000); accord

  Kilkenny v. Guy C. Long, Inc., 288 F.3d 116, 122 (3d Cir.

  2002)(“Under ERISA, internal administrative remedies like the

  arbitration procedures mandated in . . . labor agreements must be

  exhausted prior to bringing suit in federal court.”); Int’l Molders &

  Allied Workers Union, AFL-CIO, CLC v. Aquarius Shoe Corp., 511 F.

  Supp. 361, 363 (E.D. Mo. 1981); 15 Steven Plitt, Daniel Maldonado,

  Joshua D. Rogers, & Jordan R. Plitt, Couch on Insurance § 210:22,

  Westlaw (3d ed. database updated Dec. 2017)(“In keeping with the

  general ERISA requirement of exhaustion of administrative


                                    26
  remedies, the litigation to date has favored enforcement of

  arbitration agreements pertinent to ERISA-governed welfare benefit

  plans . . . in the context of agreements . . . appearing in

  employer-sponsored plans.”) (footnote omitted).

¶ 50   The policy in this case describes three levels of administrative

  remedies: negotiation, mediation, and binding arbitration. The first

  two administrative remedies do not bar a subsequent lawsuit. As a

  result, if those were the only two administrative remedies in the

  policy, Ms. Meardon would be entitled, under subsection 1116(3),

  “to have . . . her claim reviewed de novo in any court with

  jurisdiction and to a trial by jury.”

¶ 51   But those are not the only administrative remedies. I

  conclude that, not only do the policy and subsection 1116(3)

  require Ms. Meardon to submit to binding arbitration, but Ms.

  Meardon cannot file a lawsuit after the arbitral process is over

  because the arbitration is binding arbitration.

¶ 52   In other words, subsection 1116(3) is conditional, rather than

  categorical. If insureds are able to file lawsuits concerning the

  insurers’ decisions to deny benefits after exhausting the policy’s

  administrative remedies, then juries will review their claims de


                                     27
  novo. But they might be unable to file lawsuits because of binding

  arbitration clauses in their policies.

¶ 53   This reading of subsections 1116(2) and (3) renders the

  policy’s conformity clause irrelevant for the purposes of this

  discussion. Because the legislature did not intend subsection

  1116(3) to void arbitration clauses, the conformity clause cannot

  void the arbitration clause in this case. See Grant Farms, Inc. v.

  Colo. Farm Bureau Mut. Ins. Co., 155 P.3d 537, 538 (Colo. App.

  2006)(“A statute and [a] policy provision are not ‘in conflict’ merely

  because they are different from one another.”).

¶ 54   The majority rejects the preceding analysis of subsection

  1116(3) for three reasons. I respectfully disagree with each of them.

¶ 55   Reason one: I should not consider the ancestry of subsection

  1116(3) because “there is nothing ambiguous about” the subsection

  and because “neither party has asserted that there is.”

¶ 56   The majority and I reach different conclusions about what

  subsection 1116(3) means. For example, the majority concludes

  that the “plain words of [subsection 1116(3)] conflict with the

  mandatory arbitration clause.” Supra ¶ 19. I conclude that

  subsection 1116(3) does not apply to arbitration clauses at all. Part


                                     28
  of my analysis is based on the absence of any reference to

  arbitration in subsection 1116(3), and I think that this lacuna is

  outcome determinative.

¶ 57   Making the fair assumption that both the majority’s

  interpretation and my interpretation of subsection 1116(3) are

  reasonable, the difference between them starkly illustrates the

  ambiguity that the majority concludes does not exist. See Vensor v.

  People, 151 P.3d 1274, 1277 (Colo. 2007)(“If statutory language is

  susceptible of more than one reasonable interpretation, it is

  considered ambiguous and subject to construction according to

  well-accepted aids for determining legislative intent.”).

¶ 58   Two well-accepted tools for construing ambiguous statutes are

  “examining the legislative intent[] [and] the circumstances

  surrounding [the statute’s] adoption . . . .” Coffman v. Williamson,

  2015 CO 35, ¶ 23 (quoting Williams v. Kunau, 147 P.3d 33, 36

  (Colo. 2006)). Decisions from courts in other jurisdictions may

  assist in determining legislative intent when they discuss similar

  statutes. See Mosley v. Indus. Claim Appeals Office, 119 P.3d 576,

  579 (Colo. App. 2005)(“Courts from other states have almost

  uniformly concluded that the language and purpose of their states’


                                    29
  [statute], which are identical to Colorado’s, demonstrate the

  legislatures’ intent . . . .”). More specifically, when dealing with an

  adaptation of a model act, as we are in this case, we can look to the

  intent of the drafters of the model act when trying to ascertain the

  intent of our legislature. See Copper Mountain, Inc. v. Poma of Am.,

  Inc., 890 P.2d 100, 106 (Colo. 1995). And we may consider the

  object that the statute seeks to attain, its legislative history, the

  common law, and the consequences of a particular construction of

  the statute. § 2-4-203(1)(a), (c)-(e), C.R.S. 2017.

¶ 59   Reason two: The discussion of ERISA cases is irrelevant

  because this is not an ERISA case.

¶ 60   It does not matter that this case is not an ERISA case. As I

  have already explained, subsection 1116(3) arose out of ERISA

  cases. Those cases are therefore helpful in deciding what

  subsection 1116(3) means, and that meaning spills over to

  non-ERISA cases.

¶ 61   More particularly, the ERISA precedent is especially

  instructive because insureds may file cases involving specified

  ERISA issues in Colorado state courts concerning their health, life,

  or disability policies. “State courts . . . and district courts of the


                                      30
  United States shall have concurrent jurisdiction” over lawsuits filed

  by a participant or beneficiary in a qualifying plan “to recover

  benefits due . . . under the terms of [a] plan, to enforce . . . rights

  under the terms of the plan, or to clarify . . . rights to future

  benefits under the terms of the plan . . . .” 29 U.S.C. § 1132(a)(1)(B),

  (e)(1) (2012); see also Menhorn v. Firestone Tire & Rubber Co., 738

  F.2d 1496, 1500 n.2 (9th Cir. 1984)(“Jurisdiction over actions . . .

  to recover benefits or enforce rights under a plan . . . is vested

  concurrently in state and federal courts.”).

¶ 62   Reason three: My “analysis transcends [the division’s]

  obligation to decide the issues presented to us by the parties.”

¶ 63   The question whether subsection 1116(3) voids arbitration

  clauses in certain insurance policies has always been front and

  center in this case. The trial court concluded that,

             by requiring health insurance policies issued
             in Colorado to provide for litigation of claim
             denials, [subsection 1116(3)] effectively forbids
             mandatory arbitration clauses in such policies,
             and confers specifically upon life, health, and
             disability policyholders the statutory right to
             pursue denial of benefits claims in court before
             a jury. The arbitration clause in [Ms.
             Meardon’s] policy is in conflict with [subsection
             1116(3)]. It is, therefore, unenforceable and



                                      31
             automatically amended by its own terms” [in
             the policy’s conformity clause].

¶ 64   What the reader has already encountered in this dissent

  responds directly to the trial court’s ruling by explaining why

  subsection 1116(3) does not “effectively forbid[] mandatory

  arbitration clauses . . . .” See Melat, Pressman & Higbie, L.L.P. v.

  Hannon Law Firm, L.L.C., 2012 CO 61, ¶ 18 (“It is axiomatic that

  issues not raised in or decided by a lower court will not be

  addressed for the first time on appeal.”) (emphasis added).

¶ 65   In conclusion, I do not think that subsection 1116(3) voided

  the arbitration clause in this case because (1) the subsection’s

  language does not refer to arbitration; and (2) the legislature did not

  intend that it would have such an effect. I would therefore reverse

  the trial court’s order denying Freedom Life’s motion to compel

  arbitration, and I would remand this case to the trial court to grant

  that motion and then to dismiss this case.




                                    32
