                                                                   FILED
                                                       United States Court of Appeals
                                                               Tenth Circuit

                                                              June 19, 2018
                                     PUBLISH               Elisabeth A. Shumaker
                                                               Clerk of Court
                  UNITED STATES COURT OF APPEALS

                              TENTH CIRCUIT



 AUTO-OWNERS INSURANCE
 COMPANY, a Michigan corporation,

             Plaintiff Counter
             Defendant - Appellee,
 v.                                                  No. 17-1075
 JENNIFER CSASZAR, a Colorado
 individual,

             Defendant Counter
             Claimant - Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                (D.C. NO. 1:15-CV-02318-CMA-KMT)


Stephen B. Shapiro, Shapiro Beiging Barber Otteson LLP (M. Gabriel McFarland,
Evans & McFarland, LLC, Golden, Colorado, with him on the briefs), Denver,
Colorado, for Appellant.

John D. Mereness (Gregory R. Giometti with him on the brief), Gregory R.
Giometti & Associates, P.C., Denver, Colorado for Appellee.


Before TYMKOVICH, Chief Judge, BRISCOE, and BACHARACH, Circuit
Judges.


TYMKOVICH, Chief Judge.
      Auto-Owners Insurance Company provided automobile insurance to Frank

and Nancy Csaszar and their daughter, Jennifer. 1 But when that policy’s term

came to a close, Auto-Owners informed Mr. and Mrs. Csaszar that, because of

their daughter’s driving record, it would only renew their policy if it excluded her

from coverage. The Csaszars agreed. The policy accordingly included an

“excluded-driver” provision that stated the policy “shall provide no coverages”

for “claims arising out of [Jennifer Csaszar’s] operation or use of any

automobile.” App. at 205.

      While this new policy was operative, an uninsured motorist rear-ended Ms.

Csaszar while she was driving a vehicle not scheduled under her parents’ Auto-

Owners policy. To receive compensation for her injuries, Ms. Csaszar filed a

claim with Auto-Owners, requesting it pay her $500,000 in uninsured and

underinsured motorist (UM/UIM) coverage. Auto-Owners denied the claim

because it believed the excluded-driver provision barred Ms. Csaszar from such

coverage. It then sought a declaratory judgment that Ms. Csaszar is not entitled

to any coverage, including UM/UIM coverage, under her parents’ policy. In




      1
        The policy also insured the Csaszars’ other daughter, Angela. Because
Angela’s insurance coverage is not relevant to this appeal, we only discuss
Jennifer’s coverage.

      Further, for clarity we refer to Jennifer Csaszar as “Ms. Csaszar,” and her
parents as “Mr. and Mrs. Csaszar” or “the Csaszars.”

                                        -2-
response, Ms. Csaszar filed a counterclaim seeking a declaration she is, in fact,

entitled to this coverage.

      The district court granted Auto-Owners’ motion for summary judgment.

Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM. As we explain, the

excluded-driver provision unambiguously bars Ms. Csaszar from all

coverage—including UM/UIM coverage—when she drives any automobile. Ms.

Csaszar also argues that if the excluded-driver provision bars her from coverage

when she drives any automobile, then the provision is void as contrary to

Colorado public policy. We disagree. The Colorado Court of Appeals squarely

rejected this argument in Massingill v. State Farm Mutual Automobile Insurance,

176 P.3d 816 (Colo. App. 2007), when it held that if an insurer excludes a

resident relative such as Ms. Csaszar from liability coverage, it may also exclude

that person from UM/UIM coverage.

                                 I. Background

      Auto-Owners Insurance Company provided automobile insurance to Frank

and Nancy Csaszar and their daughter, Jennifer. But towards the end of that

policy’s terms, because of Ms. Csaszar’s driving record, Auto-Owners sent Mr.

and Mrs. Csaszar a “Notice of Non-Renewal” stating it would only renew the

policy if they “agree[d] in writing that the policy does not apply to . . . Jennifer L.




                                          -3-
Csaszar.” App. at 188. The Csaszars agreed. The new policy thus included the

following “Exclusion of Named Person” provision (excluded-driver provision):

      Dear Policyholder:

      The following is a renotification of an excluded driver(s) under your
      automobile policy with our company.

      This policy shall provide no coverages for any damages, losses or
      claims arising out of operation or use of any automobile to which this
      policy would otherwise apply when such automobile is operated or
      used by the below individual(s).

      This exclusion shall apply whether or not such operation or use is
      with expressed or implied permission of a person or organization
      insured by this policy.

      All other policy terms and conditions apply.

      Excluded driver(s):
      Jennifer L. Csaszar

App. at 205.

      Three vehicles were scheduled under the policy—an Audi, a Porsche, and a

Toyota. In addition to providing liability coverage, the policy also included up to

$500,000 of uninsured and underinsured motorist (UM/UIM) coverage.

      Ms. Csaszar jointly owned a car with her mother that was not scheduled

under her parents’ Auto-Owners policy—a Subaru Impreza. She bought a

separate insurance policy from Geico to cover her use of the Subaru. That policy

included $300,000 in UM/UIM coverage.




                                        -4-
      While Ms. Csaszar was driving the Subaru Impreza, an uninsured driver

rear-ended her. The uninsured driver was completely at fault. Ms. Csaszar

suffered numerous injuries from the accident, including a serious brain injury.

She sought, and received, Geico’s $300,000 UM/UIM coverage limit. But hoping

to more fully recover compensation for her injuries—Ms. Csaszar claims the

accident caused her over $4,000,000 in damages—she asked Auto-Owners to pay

her the $500,000 UM/UIM coverage limit of her parents’ policy.

      Auto-Owners denied the claim. It subsequently sought a declaratory

judgment that Ms. Csaszar is not entitled to coverage, including UM/UIM

coverage, under her parents’ policy. Ms. Csaszar filed a counterclaim seeking a

declaration she is entitled to such coverage. Both parties moved for summary

judgment.

      The district court granted Auto-Owners’ motion for summary judgment. It

first concluded the excluded-driver provision unambiguously barred Ms. Csaszar

from coverage. The court also rejected her public policy argument.

                                  II. Analysis

      We review a district court’s decision to grant a motion for summary

judgment de novo. Philadelphia Indem. Ins. v. Lexington Ins., 845 F.3d 1330,

1336 (10th Cir. 2017). A court “shall grant summary judgment if the movant

shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Savant

                                        -5-
Homes, Inc. v. Collins, 809 F.3d 1133, 1137 (10th Cir. 2016). And when, as in

this case, our jurisdiction is based on diversity of citizenship, “we apply the

substantive law of the forum state”—which here is Colorado. Cornhusker Cas.

Co. v. Skaj, 786 F.3d 842, 850 (10th Cir. 2015).

      Ms. Csaszar argues the district court erred by granting summary judgment

in favor of Auto-Owners for two reasons: (1) the excluded-driver provision does

not unambiguously bar her from coverage when she drives an unscheduled

vehicle, and (2) if the excluded-driver provision does bar her from this coverage,

it violates Colorado public policy and is thus void. 2 Both arguments lack merit.

      A.     The Excluded-Driver Provision

      Under Colorado law, when “construing the terms of insurance policies, we

apply principles of contract interpretation.” Cotter Corp. v. Am. Empire Surplus

Lines Ins., 90 P.3d 814, 819 (Colo. 2004). In so doing, “we accord contract terms

their plain and ordinary meanings.” Bohrer v. Church Mut. Ins., 965 P.2d 1258,

1261 (Colo. 1998). When “the language of an insurance contract is clear and

unambiguous on its face, it must be upheld as written.” Spaur v. Allstate Ins.,

942 P.2d 1261, 1263 (Colo. App. 1996). And Colorado law compels us to


      2
         Ms. Csaszar also argues the district court improperly relied on extrinsic
evidence—specifically, the “Notice of Nonrenewal and the Exclusion of Named
Person” form. Aplt. Br. at 31. Even assuming the district court improperly relied
on this document, this does not warrant reversal. Under de novo review—and
based on the insurance policy itself, not extrinsic evidence—we conclude the
policy unambiguously bars Ms. Csaszar from UM/UIM coverage.

                                          -6-
“neither rewrite an unambiguous policy nor force a strained construction in order

to” interpret it “against the insurer.” Id.

      At the same time, when “an insurer seeks to restrict coverage, the limitation

must be clearly expressed.” Ryder Truck Rental Inc. v. Guar. Nat. Ins., 770 P.2d

1380, 1382 (Colo. App. 1989). If the limitation is “ambiguous, then the contract

must be construed in favor of coverage and against” the limitation. Id. “A

contractual term is ambiguous ‘if it is susceptible on its face to more than one

reasonable interpretation.’” Am. Family Mut. Ins. v. Hansen, 375 P.3d 115, 120

(Colo. 2016) (quoting USAA Cas. Ins. v. Anglum, 119 P.3d 1058, 1059 (Colo.

2005)). Whether an insurance policy is ambiguous is a question of law. Tynan’s

Nissan, Inc. v. Am. Hardware Mut. Ins., 917 P.2d 321, 232 (Colo. App. 1995).

The insurer bears the burden of establishing the exclusion is not subject to any

other reasonable interpretation. Hecla Mining Co. v. New Hampshire Ins., 811

P.2d 1083, 1090 (Colo. 1991).

      Colorado also follows the doctrine of reasonable expectations. As relevant

here, under this doctrine Colorado will not enforce an exclusionary provision

“where an ordinary, objectively reasonable person would, based on the language

of the policy, fail to understand that he or she is not entitled to the coverage at

issue.” Mountain States Mut. Cas. Co. v. Roinestad, 296 P.3d 1020, 1024–25




                                              -7-
(Colo. 2013). 3 Thus, even if a “coverage-provision[] may not be ambiguous in a

technical sense”—that is, it is not ambiguous enough to be “subject to the rule

that ambiguities must be construed against the drafter”—the provision may

nevertheless “be held unenforceable” under the doctrine if it is “ambiguous from

the perspective of an ordinary reader.” Bailey v. Lincoln Gen. Ins., 255 P.3d

1039, 1050 (Colo. 2011).

      Ms. Csaszar contends the excluded-driver provision only bars her from

coverage when she drives a scheduled vehicle. We disagree. By its terms, the

exclusion unambiguously bars Ms. Csaszar from coverage when she drives any

automobile—not just a scheduled vehicle under the policy. As the provision’s

plain language states, the “policy shall provide no coverage . . . arising out of

operation or use of any automobile to which this policy would otherwise apply.”

App. at 205 (emphasis added). The plain and ordinary meaning of “any

automobile” is just that—any automobile. Nowhere does the provision state it

only applies when Ms. Csaszar operates “any scheduled automobile.” Nor does

any language in the provision modify “automobile” in a manner that suggests the


      3
         The doctrine of reasonable expectations also applies “where, because of
circumstances attributable to an insurer, an ordinary, objectively reasonable
person would be deceived into believing that he or she is entitled to coverage,
while the insurer would maintain otherwise.” Roinestad, 296 P.3d at 1025. When
the doctrine applies in this way, it serves as “a means of avoiding an unfair result
where the insurer has engaged in some sort of deception.” Craft v. Philadelphia
Indem. Ins., 343 P.3d 951, 960 (Colo. 2015). This application of the doctrine is
not implicated by this case.

                                         -8-
term applies only to scheduled vehicles. And in fact, at oral argument Ms.

Csaszar’s counsel conceded the excluded-driver provision bars her from

coverage. 4 We therefore conclude the excluded-driver provision unambiguously

precludes Ms. Csaszar from all coverage when she drives any automobile. 5

      Ms. Csaszar’s arguments to the contrary prove unpersuasive. She focuses

on the fact the provision only bars coverage “arising out of the use of any

automobile to which this policy would otherwise apply.” App. at 205 (emphasis

added). In her view, the policy only “otherwise appl[ies]” to the three vehicles

scheduled under it. She thus contends the exclusion provision, too, only applies

when she drives one of those three vehicles. But Ms. Csaszar cannot have it both

ways. Her entire theory of the case is that she can recover UM/UIM benefits



      4
          See Oral Argument at 8:30–9:14:

             The Court: So your argument is solely that it is a
             violation of public policy. But you’re not questioning
             the . . . express exclusion under the policy . . . of any
             UM coverage [for Ms. Csaszar] for driving a non-
             schedule automobile, am I correct?

             Counsel: As written, if you apply it as written, that’s
             what it says.
      5
         Ms. Csaszar also argues the doctrine of reasonable expectations entitles
her to coverage. She states that since her interpretation of the policy “is
eminently reasonable,” this “confirm[s] the exclusion is susceptible to multiple
reasonable interpretations and thus is ambiguous under the reasonable
expectations doctrine.” Aplt. Br. at 29. But as we explained above, this
interpretation is afield from an ordinary interpretation of the provision’s plain
language.

                                         -9-
under the policy for an injury that arose while she was operating an unscheduled

vehicle. Ms. Csaszar’s interpretation of “otherwise apply,” then, conflicts with

her theory of recovery.

      Further, Ms. Csaszar highlights how the exclusion provision “shall apply

whether or not such operation or use is with expressed or implied permission of a

person or organization insured by this policy.” App. at 205. Because her parents

could only give her permission to drive cars they own—the three scheduled

automobiles—Ms. Csaszar argues the exclusion itself must also apply only to

those three vehicles. This permission provision does not, however, stand for as

much. The provision is a narrow clarification that the exclusion continues to

apply even when permission was given. It does not prove the inverse—that the

exclusion can only apply to vehicles that Mr. and Mrs. Csaszar could give their

daughter permission to drive. In other words, the tail of the permission provision

cannot wag the dog of the entire excluded-driver provision.

      In sum, the excluded-driver provision unambiguously bars Ms. Csaszar

from coverage under her parents’ Auto-Owners policy for any injuries arising

from her operation of any automobile.

      B.    Colorado Public Policy

      Next, if the excluded-driver provision bars her from coverage, Ms. Csaszar

argues it is void because it violates Colorado public policy. We disagree.




                                        -10-
      “[A]ttempting to dilute, condition, or limit statutorily mandated coverage”

violates Colorado public policy. DeHerrera v. Sentry Ins., 30 P.3d 167, 173

(Colo. 2001). To determine if a policy does so, Colorado courts “look to both the

plain language of the statute and its legislative purpose.” Id. The purpose of

requiring UM/UIM coverage is to “assure the widespread availability to the

insuring public of insurance protection against financial loss caused by negligent

financially irresponsible motorists.” Id. at 174 (quoting Ch. 91, sec. 1, 1965

Colo. Sess. Laws 333). Thus, a “policy that limits UM/UIM benefits under

circumstances where the General Assembly intended for UM/UIM benefits to be

recovered is invalid.” Id. at 173.

      The parties agree that, absent any exclusion, Ms. Csaszar would be covered

by her parents’ insurance policy since she qualifies as a resident relative. Colo.

Rev. Stat. § 10–4–601(5) (defining “[i]nsured” to include “relatives of the named

insured who reside in the same household as the named insured”); see also

DeHerrera, 30 P.3d at 176 (noting a “son, as a resident relative of the named

insured, is a person insured under the policy”). And under Colorado law, all

“motor vehicle liability polic[ies] insuring against loss resulting from liability”

must include UM/UIM coverage. Colo. Rev. Stat. § 10–4–609(1)(a). But the




                                         -11-
statute carves out an exception: “the named insured may reject such coverage in

writing.” Colo. Rev. Stat. § 10–4–609(1)(a). 6

      Nevertheless, Ms. Csaszar claims Colorado public policy does not permit

excluding resident relatives from UM/UIM coverage—at least when an un/under

insured motorist is completely at fault for injuring the relative. Her argument

centers on the difference between liability coverage and UM/UIM coverage. It

makes sense, she says, to allow insurers to exclude resident relatives with poor

driving records from liability coverage, since insuring those drivers involves a

substantial amount of risk. Yet she insists it does not make sense to allow

insurers to exclude them from UM/UIM coverage when the injured relative was

completely without fault. After all, every driver—whether their record is poor or

pristine—is equally likely to be injured by an at-fault uninsured motorist.



      6
          More specifically, the full statute provides:

              In any case where an insurer is authorized under this
              part 6 to cancel or refuse to renew or increase the
              premiums on an automobile liability insurance policy
              under which more than one person is insured because of
              the claim experience or driving record of one or more
              but less than all of the persons insured under the policy,
              the insurer shall in lieu of cancellation, nonrenewal, or
              premium increase offer to continue or renew the
              insurance but to exclude from coverage, by name, the
              person whose claim experience or driving record would
              have justified the cancellation or nonrenewal.

Colo. Rev. Stat. § 10–4–630(1).

                                          -12-
      This has some valence as a policy argument. And indeed, as Ms. Csaszar

points out, numerous states have followed this reasoning to conclude it violates

that state’s public policy to bar innocent-insured drivers like her from UM/UIM

coverage. See, e.g., State Farm Mut. Auto. Ins. v. Washington, 641 A.2d 449, 452

(Del. 1994). But we, of course, do not view this policy question in a vacuum.

We must apply Colorado law. And in Massingill v. State Farm Mutual

Automobile Insurance, 176 P.3d 816 (Colo. App. 2007), the Colorado Court of

Appeals rejected the exact argument Ms. Csaszar now advances.

      In Massingill, the Colorado Court of Appeals considered “whether an

insurance company may deny UM/UIM coverage to a resident relative driver . . .

when the policy excludes the driver from coverage because of a poor driving

record.” 176 P.3d at 818. And there, as here, the resident relative argued barring

him from UM/UIM coverage improperly diluted or limited statutorily mandated

coverage. Id. at 821. The Colorado Court of Appeals was unpersuaded. It

emphasized that the “language of the UM/UIM statute . . . demonstrates that

coverage for an excluded driver is not mandated.” Id. After all, the statute only

mandates UM/UIM coverage for “persons insured thereunder.” § 10–4–609(1).

This phrase, the court concluded, “means that insurers must provide UM/UIM

coverage for the protection of persons insured under the liability policy that the

insurer is issuing.” Massingill, 176 P.3d at 822 (second emphasis added) (quoting

DeHerrera, 30 P.3d at 175).

                                        -13-
      The court went on to consider—and reject—Ms. Csaszar’s risk-based

argument. It “recognize[d] that UM/UIM coverage is designed to protect persons

who are not ‘at fault’ in an accident, and that the risks in insuring against

uninsured and underinsured motorists are very different from those taken into

account in the liability provisions of a policy.” Id. Nevertheless, the court

“perceive[d] no reason why an insurance company can permissibly preclude all

other coverage under an automobile policy using a named driver exclusion, but

not UM/UIM coverage.” Id.

      Massingill therefore controls this case. Under it, so long as an insurance

policy provides no liability coverage to a resident relative, denying that relative

UM/UIM coverage comports with Colorado public policy. Thus, because the

Auto-Owners policy bars Ms. Csaszar from liability coverage, it does not violate

Colorado public policy for it to also bar her from UM/UIM coverage. 7

      7
         We realize that “we are not bound by a lower state court decision,” but
must instead predict what the Colorado Supreme Court would do if presented with
the issue. See, e.g., Clark v. State Farm Mut. Auto. Ins., 319 F.3d 1234, 1240–41
(10th Cir. 2003). Even so, “decisions of a state's intermediate appellate courts are
some evidence of how the state supreme court would decide the issue, and we can
consider them as such.” Id. And the Colorado Court of Appeals’ decisions are
particularly instructive when there is “no indication that the Colorado Supreme
Court would decide the matter differently.” Romero v. Int’l Harvester Co., 979
F.2d 1444, 1449 n.3 (10th Cir. 1992).

        Ms. Csaszar points us to no Colorado Supreme Court case that casts doubt
on Massingill’s reasoning. As we explain, the cases Ms. Csaszar contends
question Massingill are, in fact, distinguishable. We are consequently convinced
that, if presented with this issue, the Colorado Supreme Court would find the
                                                                     (continued...)

                                         -14-
      Ms. Csaszar argues Massingill is distinguishable for two reasons. 8 Neither

persuades us. First, she highlights how the driver in Massingill was “between

zero and forty percent at fault.” Id. She thus argues Massingill’s holding is

limited to situations in which the excluded driver was partially at fault; it does not

apply where, as here, the excluded driver was entirely without fault. But this

argument ignores the fact that the driver in Massingill was “between zero and

forty percent at fault,” and could have been partially at fault, or he could have

been entirely without fault. Id. (emphasis added). That Massingill nonetheless

held it did not contravene Colorado public policy to exclude that driver from

UM/UIM coverage demonstrates Masingill’s holding applies in both situations.

      Second, Ms. Csaszar contends the excluded-driver provision here

substantively differs from the provision in Massingill. 9 But she bases this

difference on her view that this exclusion applies only when she drives a

scheduled vehicle. We have already rejected this argument.



      7
       (...continued)
reasoning of Massingill persuasive and apply it.
      8
         Ms. Csaszar also argues the “Massingill opinion is fundamentally flawed
because it relies upon No Fault or PIP law rather than UM/UIM law in reaching
its conclusion.” Aplt. Br. at 22. But the Colorado Court of Appeals merely
analogized to PIP and No Fault cases; we see no reason why this renders the
opinion “fundamentally flawed.”
      9
        The exclusion in Massingill stated that “no liability or obligation of any
kind shall attach . . . while any motor vehicle is operated” by the excluded driver.
Massingill, 176 P.3d at 819.

                                         -15-
      She also argues her parents’ policy violates Colorado public policy because

it provides her with partial UM/UIM coverage. In short, Ms. Csaszar claims

Colorado public policy requires UM/UIM coverage to be all or nothing—perhaps

insurers can completely preclude someone from such coverage, but they cannot

chop the coverage up and sometimes provide it, but sometimes not. This is

precisely what her parents’ policy does, she claims, because she can recover

UM/UIM benefits as a pedestrian or a passenger, but cannot when she operates an

automobile.

      Ms. Csaszar cites three cases that, in her view, demonstrate it violates

public policy to provide partial UM/UIM coverage. First, in DeHerrera, the

Colorado Supreme Court held it violated public policy for an insurer to only

provide UM/UIM coverage if a resident relative was injured while driving a car,

not if he was injured driving a motorcycle. 30 P.3d at 173–76. Likewise, in

Jaimes v. State Farm Mut. Auto. Ins., the Colorado Court of Appeals held it

contravened Colorado public policy to offer an insured driver UM/UIM coverage

only when he drove a vehicle covered by that policy, not when he drove non-

scheduled vehicles. 53 P.3d 743, 744–47 (Colo. App. 2002). Finally, in Pacheo

v. Shelter Mut. Ins., this court held it violated Colorado public policy to only

provide resident relatives UM/UIM coverage if they did not own a vehicle. 583

F.3d 735, 738–41 (10th Cir. 2009).




                                         -16-
       Yet Ms. Csaszar glosses over a key detail from all three cases. In each one,

the insurer provided liability coverage to the driver the policy partially precluded

from UM/UIM coverage. These cases therefore only stand for the proposition

that it violates Colorado public policy for insurers to provide partial UM/UIM

coverage to those whom they provide full liability coverage. See Aetna Cas. &

Sur. Co. v. McMichael, 906 P.3d 92, 98 (Colo. 1995) (stating it “interpret[s]

[§] 10–4–609(1) to require insurers to offer UM/UIM coverage to a class of

individuals coextensive with the class covered by the liability provision of the

respective policy”). They do not address the different situation in this case in

which the driver being denied UM/UIM coverage is expressly excluded from

liability coverage. Massingill addressed that situation, and answered the question

in the negative. 10

       In sum, Colorado public policy does not prohibit the UM/UIM exclusion in

Auto-Owners’ automobile policy.

                                III. Conclusion

       The district court properly granted Auto-Owners’ motion for summary

judgment. The excluded-driver provision in the Csaszars’ policy from Auto-

Owners expressly bars Ms. Csaszar from all coverage—including UM/UIM


       10
          Ms. Csaszar also argues two of the policy’s subsections relating to
UM/UIM coverage, subsections 2.a and 2.b(2), violate public policy. Because we
conclude Ms. Csaszar is entirely excluded from UM/UIM coverage for injuries
arising from her operation of any vehicle, we need not consider this argument.

                                         -17-
coverage—for injuries arising from her operation of any automobile. This does

not violate Colorado public policy.

      We accordingly AFFIRM.




                                      -18-
