v. Shelter Mutual Insurance

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

SUMMARY
June 13, 2019

2019COA88

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

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

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

exclusivity provision of the Workers’ Compensation Act of Colorado,

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

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

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

from receiving UM/UIM benefits under an insurance policy

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

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

Kent Ryser,

Plaintiff-Appellant,

v.

Shelter Mutual Insurance Company,

Defendant-Appellee.

JUDGMENT AFFIRMED

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

Announced June 13, 2019

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

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

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

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

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

the exclusivity provision of the Workers’ Compensation Act of

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

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

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

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

from receiving UM/UIM benefits under an insurance policy

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

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

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

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

judgment.

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

1
 I. Undisputed Facts and Procedural Background

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

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

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

When the accident occurred, all three of them were Walmart

employees acting in the course and scope of their employment.

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

¶3 Babion maintained an auto insurance policy written by

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

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

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

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

operator of an uninsured/underinsured motor vehicle is legally

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

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

auto,” i.e., Babion’s car.

¶4 Ryser received workers’ compensation benefits. He also

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

that the co-employee immunity rule rendered Forster an uninsured

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

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

own policy.

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

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

unreasonable delay and denial of benefits claims, along with a

common law bad faith claim.

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

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

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

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

Forster’s negligence had caused his injuries.

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

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

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

negligence as to Babion.

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

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

Forster disputed.

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

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

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

Shelter concedes preservation.

II. Standard of Review

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

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

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

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

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

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

benefit of all favorable inferences that may reasonably be drawn

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

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

Martini, 42 P.3d at 632.

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

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

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

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

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

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

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

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

III. Law

A. Statutes

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

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

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

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

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

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

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

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

automobile.” An “underinsured” motor vehicle is defined as “a land

motor vehicle, the ownership, maintenance, or use of which is

insured or bonded for bodily injury or death at the time of the

accident.” § 10-4-609(4). Under that section, “[u]ninsured motorist

coverage shall include coverage for damage for bodily injury or

death that an insured is legally entitled to collect from the owner or

driver of an underinsured motor vehicle.” Id. (emphasis added).

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

5
 B. Case Law

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

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

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

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

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

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

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

provide only background.

1. Borjas

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

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

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

the policies underlying UM/UIM coverage and governmental

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

that “legally entitled to recover” under section 10-4-609(1)(a)

“means that the insured must be able to establish that the fault of

the uninsured motorist gave rise to damages and the extent of those

damages.” Borjas, 33 P.3d at 1269.

6
 2. Dickinson

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

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

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

compensation policy and had not obtained his own coverage, the

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

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

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

insurer.

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

independent contractor, who like Dickinson had not procured

workers’ compensation insurance, to recover damages in excess of

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

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

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

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

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

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

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

the exclusivity provisions of the workers’ compensation statute

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

omitted).

3. Ashour

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

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

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

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

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

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

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

means “the insured must be able to establish that the fault of the

uninsured motorist gave rise to damages and the extent of those

damages.” Id. at ¶ 63 (quoting Borjas, 33 P.3d at 1269). So, it

concluded, “allowing [the plaintiff] to claim benefits from his own

insurance carrier would not in any way affect the immunity

provided to his employer and co-employee by the [WCA].” Id. at

¶ 71.

4. McMichael

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

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

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

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

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

not involve WCA immunity because the plaintiff was struck by a

third-party tortfeasor.

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

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

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

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

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

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

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

benefits did not limit UM/UIM coverage.

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

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

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

precedent to obtaining UM/UIM benefits under another co-

employee’s auto insurance policy — remains unresolved. 2

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

done so.

9
 IV. Ryser Is Not Legally Entitled to Recover

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

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

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

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

fault nor damages are disputed. So, resolving this contention

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

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

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

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

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

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

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

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

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

phrases according to the rules of grammar and common usage.

Roberts v. Bruce, 2018 CO 58, ¶ 8.

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

phrase “legally entitled to recover damages from owners or

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

divisions interpreted the phrase based on policy considerations.

See Borjas, 33 P.3d at 1269 (“The contrary line of cases all give a

strict interpretation to the statutory language ‘legally entitled to

recover’ that we find inconsistent with the public policy expressed

in § 10-4-609.”); see also Ashour, ¶ 62 (“[W]e choose to adopt the

Borjas interpretation of that phrase because it is consistent with the

policies underlying the UM/UIM statute, the purpose of which is to

compensate the injured party ‘for injuries received at the hands of

one from whom damages cannot be recovered.’” (quoting Borjas, 33

P.3d at 1267)).

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

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

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

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

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

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

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

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

language of a statute is unambiguous and does not conflict with

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

Interest of W.P., 2013 CO 11, ¶ 11.

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

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

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

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

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

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

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

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

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

language.”’”) (citations omitted).

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

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

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

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

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

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

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

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

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

the statute mandates underinsured motorist coverage where the

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

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

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

provided under the law.

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

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

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

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

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

must be determined in light of any substantive defenses that would

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

lens, we take another look at the statutory language.

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

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

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

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

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

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

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

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

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

judgment.”).

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

broader or the narrower definition, Ryser cannot recover from

Forster.

¶ 33 Consistent with these definitions, Colorado cases hold that

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

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

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

the division explained:

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

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

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

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

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

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

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

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

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

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

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

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

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

¶ 34 But where WCA immunity protects the tortfeasor, this

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

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

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

the exclusivity of the Workers’ Compensation Act has been

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

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

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

motor vehicles”).

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

which limited the statutory requirement to proving the tortfeasor’s

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

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

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

tortfeasor may have affirmative defenses, merely showing that the

tortfeasor was at fault would not establish a legal entitlement to

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

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

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

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

(Colo. 1994).

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

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

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

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

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

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

under her policy because the coworker immunity rule renders the

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

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

financially irresponsible in the sense that they lack the ability to

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

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

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

reason that the driver is deemed noninsured is because the

Workers’ Compensation Act grants immunity from any liability

towards a co-employee.”).

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

“Uninsured motorist coverage is not triggered unless an insured

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Annotation, Automobile Uninsured Motorist Coverage: “Legally

Entitled to Recover” Clause as Barring Claim Compensable Under

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

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

someone other than the injured employee, the results have been

uniform.”) (emphasis added). 4

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

18
¶ 39 We consider these authorities persuasive and follow them

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

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

insured could have never recovered from the uninsured motorist

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

tortfeasor chargeable with the motor vehicle accident,” the plaintiff

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

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

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

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

obtain an enforceable judgment against the tortfeasor. Examples

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

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

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

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

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

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

entitled to recover damages from the tortfeasor.

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

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

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

involving bankrupt tortfeasors explain “there is nothing preventing

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

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

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

bankruptcy discharge, from actually collecting demonstrated

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

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

involves a tortfeasor who is immune from liability.

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

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

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

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

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

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

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

damages.” Torres, 849 P.2d at 410.

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

rationale this far. Both Ashour and Borjas involved claimants who

sought to recover UM/UIM benefits under their own insurance

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

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

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

Ashour did not seek to recover additional damages from the

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

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

that the statutory policies which we have reconciled may interact

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

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

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

paid for.

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

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¶ 45 Ryser’s remaining arguments examine policy considerations

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

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

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

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

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

public policy favoring arbitration, that policy does not trump

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

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

public policy arguments because we view the relevant Colorado

statutes as unambiguous . . . .”).

V. Conclusion

¶ 46 We conclude that the trial court properly granted summary

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

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

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

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

policy.

¶ 47 The judgment is affirmed.

JUDGE FURMAN and JUDGE MÁRQUEZ concur.

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