                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                   September 20, 2006
                          FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                       Clerk of Court
    STA TE FA RM M U TU A L
    AUTOM OBILE INSURANCE
    COM PANY, an Illinois
    corporation,
                                                       No. 05-1215
             Plaintiff-Counter-                 (D.C. No. 03-F-1275 (CBS))
             Defendant-Appellant,                       (D . Colo.)

     v.

    PR OG RESSIV E M U TU A L
    IN SURANCE COM PANY, an Ohio
    corporation,

             Defendant-Appellee,

    VICK I L. LEE,

             Defendant-Counter-
             Claimant-Appellee.



                           OR D ER AND JUDGM ENT *


Before KELLY, PO RFILIO, and BROR BY, Circuit Judges.




*
       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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
      Plaintiff State Farm M utual Automobile Insurance Company (State Farm)

appeals from the district court’s denial of its motion for summary judgment and

the grant of summary judgment in favor of defendant Vicki L. Lee. At issue on

the parties’ respective motions w as the interpretation of Colo. Rev. Stat.

§ 10-4-609, and more specifically, whether the initial determination of when a

tortfeasor’s vehicle is underinsured should be made by comparing the liability

limits of the tortfeasor’s policy with the liability limits of the underinsured

portions of the injured party’s policy alone, or by comparing the liability limits of

the tortfeasor’s policy with the sum of the underinsured limits of the injured

party’s policy and the underinsured limits of any other applicable policies. This

latter procedure of applying the policy limits of multiple policies is known as

stacking.

      After the district court denied the parties’ request to certify the questions of

law to the Colorado Supreme Court, it held that: (1) § 10-4-609 permitted

stacking of the injured party’s policy with the limits of other applicable policies

under these circumstances of the case; (2) the tortfeasor was underinsured; and

(3) M s. Lee was entitled to a claim of up to $200,000 in uninsured motorist

coverage from State Farm. On appeal to this court, the parties again requested

that the questions of law be certified to the state supreme court. Because the case

presented important, but undecided, questions of state law and statutory

interpretation, we certified the questions of law to the Colorado Supreme Court.

                                          -2-
State Farm M ut. Auto. Ins. Co. v. Progressive M ut. Ins. Co., No. 05-1215

(10th Cir. Dec. 16, 2005).

      The relevant, undisputed facts presented to the Colorado Supreme Court on

the certified questions of law are that M s. Lee (the injured party) was a passenger

on Jerry M aggard’s motorcycle w hen it was struck by a vehicle driven by Sonja

M adson (the tortfeasor) in July 2002 in Loveland, Colorado. At the time of the

accident, M s. M adson was insured by Progressive under a policy that provided

$100,000 in liability coverage per person. M s. Lee was insured under a policy

from State Farm, which had a $100,000 underinsured limit. M r. M aggard, who is

not related to M s. Lee, was insured under a separate policy from State Farm, with

the same $100,000 underinsured limit contained in M s. Lee’s policy.

      W ith State Farm’s permission, M s. Lee settled her claim against

M s. M adson for the Progressive policy limits. Thereafter, M s. Lee asserted that

the Progressive payment did not fully compensate her for her injuries, and she

made a claim to State Farm for underinsured benefits under her own and

M r. M aggard’s policies. State Farm denied the claim and filed a declaratory

judgment action in the district court in which it sought a determination that

M s. M adson’s vehicle was not underinsured, because § 10-4-609 did not permit

the stacking of M s. Lee’s and M r. M aggard’s policies to determine whether the

M s. M adson was underinsured.




                                         -3-
      In answering the certified questions of law , the C olorado Supreme Court

held that under § 10-4-609, “[c]onsidered as a whole,” a tortfeasor’s vehicle “is

underinsured whenever the limits of liability against which its use is insured are

less than the sum of the underinsured motorist coverage declared in the injured

party’s policy and the underinsured motorist coverage declared in all other

applicable policies.” 1 State Farm M ut. Auto Ins. Co. v. Progressive Mut. Ins. Co.

(In re State Farm ), No. 05 SA 369, 2006 W L 2589162, at * 1 (Colo. Sept. 11,

2006). Therefore, the judgment of the district court is AFFIRMED.



                                                    Entered for the Court


                                                    W ade Brorby
                                                    Circuit Judge




1
      The Colorado Supreme Court recognized that § 10-4-609(2) allows an
insurer to prohibit stacking under circumstances not present in this case.

                                         -4-
