v. Shelter Mutual Insurance

In particular, the court concludes that an injured co-worker is barred by operation

of the WCA’s exclusivity provisions from recovering UM/UIM benefits from a

co-employee vehicle owner’s insurer for damages stemming from a work-related

accident in which another co-employee negligently drove the owner’s vehicle and

the injured party was an authorized passenger.

Accordingly, the court affirms the judgment of the division below, albeit on

somewhat different grounds.
 The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203

2021 CO 11

Supreme Court Case No. 19SC530
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 18CA748

Petitioner:

Kent Ryser,

v.

Respondent:

Shelter Mutual Insurance Company.

Judgment Affirmed
en banc
February 16, 2021

Attorneys for Petitioner:
Killian Davis Richter & Mayle, PC
Nicholas W. Mayle
Damon Davis
Grand Junction, Colorado

Attorneys for Respondent:
Morgan Rider Riter Tsai, P.C.
Sophia H. Tsai
Kelly L. Kafer
Denver, Colorado
Attorneys for Amici Curiae American Property Casualty Insurance Association
and Colorado Defense Lawyers Association:
Wheeler Trigg O’Donnell LLP
Evan B. Stephenson
Kayla L. Scroggins-Uptigrove
Denver, Colorado

Attorneys for Amicus Curiae Colorado Trial Lawyers Association:
Jordan Herington & Rowley
Michael J. Rosenberg
Greenwood Village, Colorado

Law Offices of Richard M. Crane
Richard M. Crane
Denver, Colorado

JUSTICE GABRIEL delivered the Opinion of the Court.
JUSTICE MÁRQUEZ does not participate.
2
¶1 This case requires us to address the interplay between the

uninsured/underinsured motorist (“UM/UIM”) statute, section 10-4-609, C.R.S.

(2020), and the Workers’ Compensation Act of Colorado (“WCA”), sections

8-41-102 and -104, C.R.S. (2020). Specifically, we must decide whether an injured

passenger riding in a vehicle negligently driven by one co-worker and owned by

another co-worker, when all three were acting within the course and scope of their

employment, may recover UM/UIM benefits under the vehicle owner’s insurance

policy.1

¶2 Although the parties before us dispute the meaning of the phrases “legally

entitled to recover” and “legally entitled to collect” under section 10-4-609, we

need not resolve that dispute here because assuming without deciding that

plaintiff Kent Ryser’s interpretation is correct, we conclude that he still cannot

prevail. In particular, we conclude that an injured co-worker is barred by

operation of the WCA’s exclusivity and co-employee immunity principles from

recovering UM/UIM benefits from a co-employee vehicle owner’s insurer for

1 Specifically, we granted certiorari to review the following issue:
Whether the meaning of “legally entitled to recover” or “collect” as
used in section 10-4-609, C.R.S. (2019), requires the
uninsured/underinsured motor vehicle (“UM/UIM”) insurance
benefits be available to a plaintiff who is injured by an immune
at-fault driver while riding in a co-worker’s car.

3
damages stemming from a work-related accident in which another co-employee

negligently drove the owner’s vehicle and the injured party was an authorized

passenger.

¶3 Accordingly, we affirm the decision of the division below, although our

reasoning differs somewhat from that of the division.

I. Facts and Procedural History

¶4 Ryser and two of his co-workers, Linda Forster and Sherri Babion, were

returning together in Babion’s vehicle from a work trip. With Babion’s permission,

Forster was driving, and Ryser was a passenger in the back seat. During this trip,

all three were acting within the course and scope of their employment.

¶5 Forster fell asleep at the wheel and lost control of the vehicle, after which

the vehicle spun off the road and struck an embankment and a fence before coming

to rest. As a result of this accident, Ryser suffered significant injuries.

¶6 Because the crash occurred while Ryser was on the job, he was entitled to

and received workers’ compensation benefits for the injuries that he sustained as

a result of the accident. Ryser also sought and received UM/UIM benefits from

his own auto insurance policy, on the ground that the WCA co-employee

immunity rule effectively rendered Forster an uninsured motorist.

¶7 In addition to receiving workers’ compensation benefits from his employer

and UM/UIM benefits from his own insurer, Ryser sought UM/UIM benefits

4
from Babion’s auto insurer, defendant Shelter Mutual Insurance Company. In his

view, he was entitled to such benefits because, as an authorized passenger in the

vehicle, he was an insured under the Shelter policy. Shelter denied Ryser’s claim,

however, and Ryser brought this action against Shelter to recover, among other

things, UM/UIM benefits under the Shelter policy.

¶8 Both parties moved for summary judgment, and neither party disputed

Forster’s fault or Ryser’s damages. As pertinent here, Ryser asserted that because

Forster was immune under the WCA for her tortious conduct while acting within

the course and scope of her employment, she was effectively uninsured and

therefore Ryser, as an insured under Babion’s Shelter policy, was entitled to seek

UM/UIM benefits from Shelter. Shelter responded, however, that under the plain

language of its policy and sections 10-4-609(1)(a) and (4), it is required to pay

UM/UIM benefits only when an insured is “legally entitled to recover” or “legally

entitled to collect” from the owner or operator of the vehicle. Because the WCA

rendered Forster immune from liability, Shelter contended that Ryser was not

legally entitled to recover or collect from her. Thus, in Shelter’s view, Babion’s

policy did not provide coverage for Ryser’s UM/UIM claim.

¶9 The district court agreed with Shelter and granted its summary judgment

motion. Ryser then appealed, arguing that the phrases “legally entitled to

recover” and “legally entitled to collect” require only that the insured be able to

5
establish fault on the part of the uninsured motorist and the extent of the insured’s

resulting damages.

¶10 A division of the court of appeals ultimately disagreed and, in a unanimous,

published decision, affirmed the district court’s grant of summary judgment.

Ryser v. Shelter Mut. Ins. Co., 2019 COA 88, ¶¶ 1, 46, __ P.3d __. As pertinent here,

the division concluded that because the WCA co-employee immunity rule

precluded Ryser from recovering damages from Forster, under the plain language

of Babion’s policy with Shelter and section 10-4-609, he was not entitled to

UM/UIM benefits (because he was not “legally entitled to recover damages” from

Forster). Id. at ¶ 37. In reaching this conclusion, the division found persuasive the

view of a number of out-of-state authorities and legal commentators that “legally

entitled to collect” and “legally entitled to recover,” as those phrases are used in

statutes like sections 10-4-609(1)(a) and (4), require that the insured show not only

that he or she suffered damages caused by the fault of an uninsured motorist, but

also that the insured’s action against the uninsured motorist was not barred under

substantive law (i.e., that the motorist was legally subject to liability). Id. at

¶¶ 38–39.

¶11 Ryser petitioned this court for certiorari, and we granted his petition.

6
 II. Analysis

¶12 We begin by setting forth the applicable standards governing our review of

motions for summary judgment and statutory construction. We then proceed to

discuss the interplay between the exclusivity provisions of the WCA and the

UM/UIM statute. We conclude, on the facts presented here, that the WCA’s

exclusivity and co-employee immunity principles preclude Ryser from bringing a

UM/UIM benefits action against a co-employee vehicle owner’s insurer for

damages stemming from a work-related accident caused by the negligent driving

of another co-employee.

A. Applicable Legal Standards
¶13 We review a grant of summary judgment de novo. Rocky Mountain Expl.,

Inc. v. Davis Graham & Stubbs LLP, 2018 CO 54, ¶ 27, 420 P.3d 223, 229. When, as

in the case before us, the material facts are undisputed, summary judgment is

appropriate only when the pleadings and supporting documents show that the

moving party is entitled to judgment as a matter of law. Id.; accord C.R.C.P. 56(c).

In determining whether summary judgment is warranted, a court must grant the

nonmoving party the benefit of all favorable inferences that may reasonably be

drawn from the undisputed facts, and it must resolve all doubts against the

moving party. Rocky Mountain Expl., Inc., ¶ 27, 420 P.3d at 229.

7
¶14 We also review questions of statutory interpretation de novo. Dep’t of

Revenue v. Agilent Techs., Inc., 2019 CO 41, ¶ 16, 441 P.3d 1012, 1016. In construing

a statute, our aim is to effectuate the legislature’s intent. Id. In doing so, we

consider the entire statutory scheme to give consistent, harmonious, and sensible

effect to all of its parts, and we construe words and phrases in accordance with

their plain and ordinary meanings. Id. In addition, we will look to the statutory

language “to determine whether public policy affects our construction of an

insurance provision.” Pinnacol Assurance v. Hoff, 2016 CO 53, ¶ 48, 375 P.3d 1214,

1223. If the statutory language is clear, we will apply it as written. Id.

B. The WCA and the UM/UIM Statute

¶15 Ryser contends that the division below erred in concluding that the WCA’s

exclusivity and co-employee immunity principles preclude him from recovering

UM/UIM benefits from a co-worker’s insurer when he was injured in an accident

caused by a different co-worker’s negligent driving of the insured co-worker’s

vehicle.

¶16 As noted above, this case implicates the interplay between the UM/UIM

statute, section 10-4-609, and the WCA, sections 8-41-102 and -104. Accordingly,

we begin with the applicable statutory provisions.

¶17 Section 10-4-609 provides, in pertinent part:

(1)(a) No automobile liability or motor vehicle liability policy insuring
against loss resulting from liability imposed by law for bodily
8
 injury . . . suffered by any person arising out of the ownership,
maintenance, or use of a motor vehicle shall be delivered or issued for
delivery in this state with respect to any motor vehicle licensed for
highway use in this state unless coverage is provided therein or
supplemental thereto . . . for the protection of persons insured
thereunder who are legally entitled to recover damages from owners or
operators of uninsured motor vehicles because of bodily injury,
sickness, or disease, including death, resulting therefrom . . . .

....

(4) Uninsured 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.

(Emphases added.)

¶18 Section 8-41-102 of the WCA provides:

An employer who has complied with the provisions of articles 40 to
47 of this title, including the provisions relating to insurance, shall not
be subject to the provisions of section 8-41-101 [concerning the
unavailability of certain defenses]; nor shall such employer or the
insurance carrier, if any, insuring the employer’s liability under said articles
be subject to any other liability for the death of or personal injury to any
employee, except as provided in said articles; and all causes of action,
actions at law, suits in equity, proceedings, and statutory and common law
rights and remedies for and on account of such death of or personal injury to
any such employee and accruing to any person are abolished except as
provided in said articles.

(Emphases added.)

¶19 And section 8-41-104 provides:

An election under the provisions of section 8-40-302(5) [concerning
employers’ purchase of workers’ compensation insurance] and in
compliance with the provisions of articles 40 to 47 of this title,
including the provisions for insurance, shall be construed to be a
surrender by the employer, such employer’s insurance carrier, and the
9
 employee of their rights to any method, form, or amount of compensation or
determination thereof or to any cause of action, action at law, suit in equity,
or statutory or common-law right, remedy, or proceeding for or on account
of such personal injuries or death of such employee other than as
provided in said articles, and shall be an acceptance of all the
provisions of said articles, and shall bind the employee personally,
and, for compensation for such employee’s death, the employee’s
personal representatives, surviving spouse, and next of kin, as well as
the employer, such employer’s insurance carrier, and those
conducting their business during bankruptcy or insolvency.

(Emphasis added.)

¶20 The foregoing provisions of the WCA establish the long-held proposition

that “[t]he Act provides the exclusive remedy to a covered employee for injuries

sustained while the employee is performing services arising in the course of his or

her employment.” People v. Oliver, 2016 COA 180M, ¶ 21, 405 P.3d 1165, 1171; see

also Kandt v. Evans, 645 P.2d 1300, 1302 (Colo. 1982) (“Recovery under the Act is

meant to be exclusive and to preclude employee tort actions against an

employer.”); Roper v. Indus. Comm’n, 25 P.2d 725, 726 (Colo. 1933) (“One of the

fundamental aims in adopting the act was that of substituting for any and all

previously existing remedies the special procedure supplied by the act.”).

¶21 Employers who comply with the requirements of the WCA are therefore

immune from common law liability related to on-the-job injuries. See Travelers Ins.

Co. v. Savio, 706 P.2d 1258, 1263–64 (Colo. 1985). In addition, we have interpreted

the foregoing WCA exclusivity provisions to extend immunity from any common

law liability arising out of a work-related injury to the injured worker’s

10
co-employees. See Kelly v. Mile Hi Single Ply, Inc., 890 P.2d 1161, 1163 (Colo. 1995)

(noting that an employer who has complied with the WCA’s insurance provisions,

as well as an injured worker’s co-employees, are immune from common-law

liability for such injuries); Kandt, 645 P.2d at 1305 (noting that the WCA quid pro

quo by which an employer gives up its normal defenses and assumes liability in

exchange for the employee’s giving up common-law verdicts extends as well to

co-employees who are also involved in this compromise of rights); see also

§ 8-40-102(1), C.R.S. (2020) (recognizing that “the workers’ compensation system

in Colorado is based on a mutual renunciation of common law rights and defenses

by employers and employees alike”).

¶22 The question now before us is whether the WCA’s co-employee immunity

rule bars Ryser from recovering UM/UIM benefits from his co-worker Babion’s

insurer, Shelter.

¶23 Shelter contends, and the division below concluded, that Ryser was not

entitled to such benefits, reasoning that, because the WCA’s co-employee

immunity rule barred Ryser from bringing an action against Forster (i.e., the

effectively uninsured co-employee driver), he was not “legally entitled to recover”

or “legally entitled to collect” damages, as those phrases are used in sections

10-4-609(1)(a) and (4). Ryser, ¶¶ 37–39. Under this interpretation, “legally entitled

to collect” and “legally entitled to recover” require the plaintiff to prove not only

11
that he or she suffered damages caused by the fault of the uninsured motorist, but

also that his or her action against the uninsured motorist was not barred under

substantive law. See id. at ¶ 39.

¶24 Ryser, in contrast, contends that the division’s conclusion was erroneous

because, in his view, “legally entitled to collect” and “legally entitled to recover”

mean solely that the injured party can prove (1) that the uninsured driver was at

fault and (2) the extent of the damages caused by that driver. Ryser so interprets

the statutory language because, in his view, the insurer does not step into the shoes

of the tortfeasor and therefore procedural defenses such as WCA immunity do not

apply in determining whether a claimant has satisfied the requirements for

recovering UM/UIM benefits. Ryser thus asserts that because he has established

both Forster’s fault and the extent of his damages, he is entitled to recover

UM/UIM benefits under the Shelter policy and the UM/UIM statute.

¶25 We acknowledge the force of both Ryser’s and Shelter’s arguments

regarding the proper interpretation of “legally entitled to recover” and “legally

entitled to collect.” We need not resolve this dispute here, however, because even

if Ryser’s interpretation were correct and he could satisfy the facial requirements

for recovering benefits under the Shelter policy and the UM/UIM statute, he still

cannot prevail because allowing him to recover under the Shelter policy would

12
directly conflict with the WCA’s exclusivity and co-employee immunity

principles.

¶26 As noted above, the WCA’s exclusivity provisions abolish any causes of

action related to personal injuries like those at issue here, § 8-41-102, and, upon

participating in the workers’ compensation system, all employees “surrender . . .

their rights to any method, form, or amount of compensation or determination

thereof or to any cause of action, action at law, suit in equity, or statutory or

common-law right, remedy, or proceeding for or on account of such personal

injuries,” § 8-41-104. In addition, it has long been established that the immunity

created by these provisions extends as well to an injured worker’s co-employees.

See Kelly, 890 P.2d at 1165; Kandt, 645 P.2d at 1305.

¶27 In our view, the expansive wording of the WCA controls in this case.

Section 8-41-102 provides that “all causes of action, actions at law, suits in equity,

proceedings, and statutory and common law rights and remedies for and on

account of such . . . personal injury to [an] employee and accruing to any person

are abolished except as provided in said articles.” (Emphasis added.) That section

further provides that the immunity afforded the employer extends to the

employer’s insurance carrier. See § 8-41-102 (“[N]or shall such employer or the

insurance carrier, if any, insuring the employer’s liability under said articles be

subject to any other liability for the death of or personal injury to any

13
employee . . . .”) (emphasis added); see also Savio v. Travelers Ins. Co., 678 P.2d 549,

551–52 (Colo. App. 1983) (“When an employer has complied with the provisions

of the Workmen’s Compensation Act, neither the employer nor its insurance

carrier are subject to liability for the death of or personal injury to any employee,

except as provided in the Act, and all causes of actions, rights, and remedies for

and on account of such death of or personal injury to any covered employee are

abolished.”), aff’d in part, rev’d in part on other grounds, 706 P.2d 1258 (Colo. 1985).

¶28 And as set forth above, the same immunities extend to co-employees and

thus, necessarily, their insurance carriers. See Kelly, 890 P.2d at 1165; Kandt,

645 P.2d at 1305; Savio, 678 P.2d at 551–52; § 8-41-102. Indeed, to conclude

otherwise would allow an end-run around the WCA’s exclusivity and

co-employee immunity principles, which “play[] a pivotal role in workers’

compensation.” Cont’l Divide Ins. Co. v. Dickinson, 179 P.3d 202, 206 (Colo. App.

2007).

¶29 Accordingly, on the facts before us, we conclude that, regardless of the

proper interpretation of “legally entitled to recover” and “legally entitled to

collect,” Ryser’s claim against his co-worker Babion’s insurance carrier, Shelter, is

barred by the WCA’s exclusivity provisions and the related co-employee

immunity rule and therefore fails as a matter of law.

14
¶30 Cases like Borjas v. State Farm Mutual Automobile Insurance Co., 33 P.3d 1265

(Colo. App. 2001), and American Family Mutual Insurance Co. v. Ashour, 2017 COA

67, 410 P.3d 753, on which Ryser relies, do not dictate a different result because

these cases did not involve the interplay between the UM/UIM statute and the

WCA’s exclusivity and co-employee immunity principles that is at issue here.

¶31 Borjas did not involve the WCA at all. Rather, it turned, in large part, on the

interplay between the policies underlying the UM/UIM statute and those

animating the Colorado Government Immunity Act, with the division concluding

that allowing the injured plaintiff to recover UM/UIM benefits there served the

policies of both statutory regimes. See Borjas, 33 P.3d at 1268–69.

¶32 Ashour, in turn, expressly distinguished a case in which an employee seeks

recovery of UM/UIM benefits from his employer’s policy, which would implicate

WCA exclusivity and immunity, from one like that before the division, in which

the employee sought to recover such benefits from his own policy. Ashour,

¶¶ 51–52, 71, 410 P.3d at 762, 765. Indeed, the Ashour division deemed it “critical”

to its analysis that the plaintiff there had sought benefits under his own insurance

policy because, among other things, he “did not seek to recover additional

damages from the immune parties in [the] case—his employer and co-employee.”

Id. at ¶ 52, 410 P.3d at 762. The division thus observed, “[A]llowing [the plaintiff]

to claim benefits from his own insurance carrier would not in any way affect the

15
immunity provided to his employer and co-employee by the Act.” Id. at ¶ 71,

410 P.3d at 765. Allowing Ryser to collect UM/UIM benefits here, in contrast,

would directly implicate those immunities.

¶33 We likewise are unpersuaded by Ryser’s argument that our decision in

Aetna Casualty & Surety Co. v. McMichael, 906 P.2d 92 (Colo. 1995), compels the

conclusion that Ryser is entitled to collect UM/UIM benefits under the Shelter

policy because, in his view, Babion stood in the position of a third-party to the tort

at issue and thus her WCA immunity was not implicated. In McMichael, 906 P.2d

at 96–97, we interpreted the phrase “for the protection of persons insured

thereunder,” as used in section 10-4-609(1), C.R.S. (1994), to require that insurers

issuing automobile liability insurance provide UM/UIM coverage for all

individuals covered under the liability provisions of the policy, unless the named

insured refuses such coverage in writing. We thus concluded that because the

plaintiff was struck by a car driven by an underinsured motorist while the plaintiff

was using, with permission, a vehicle covered by his employer’s insurance, he was

entitled to recover UM/UIM benefits under his employer’s policy. McMichael,

906 P.2d at 94, 104.

¶34 Because the plaintiff in McMichael was injured by the negligence of an

unrelated tortfeasor (i.e., a tortfeasor who was not a co-employee), we had no

occasion to consider either the WCA, its exclusivity or co-employee immunity

16
principles, or the interplay between the UM/UIM statute and the WCA.

Accordingly, we do not agree that our discussion of the UM/UIM coverage issue

in McMichael is dispositive of the issues before us here.

¶35 Finally, we are not persuaded by Ryser’s argument that the WCA and its

underlying policies are not implicated in this case and that the public policies

underlying the UM/UIM statute alone should guide our analysis. The General

Assembly has declared that the WCA must be interpreted

so as to assure the quick and efficient delivery of disability and
medical benefits to injured workers at a reasonable cost to employers,
without the necessity of any litigation, recognizing that the workers’
compensation system in Colorado is based on a mutual renunciation
of common law rights and defenses by employers and employees
alike.

§ 8-40-102(1) (emphasis added). As discussed above, the WCA’s exclusivity

provisions, and by extension the WCA’s employer and co-employee immunity

principles, play a pivotal role both in the workers’ compensation system and in

effectuating the legislative declaration articulating its purpose. See Dickinson,

179 P.3d at 206. We are not at liberty to ignore these statutory provisions and the

legislature’s express declaration of policy, as we perceive Ryser’s position would

require us to do.

III. Conclusion

¶36 For the reasons set forth above, we conclude that an injured employee is

barred by operation of the WCA’s exclusivity and co-employee immunity
17
principles from bringing a UM/UIM benefits action against a co-employee vehicle

owner’s insurer for damages stemming from a work-related accident caused by

the negligent driving of another co-employee. Accordingly, we conclude that

summary judgment was properly entered in Shelter’s favor in this case.

¶37 We therefore affirm the judgment of the division below, although our

reasoning differs somewhat from that of the division.

18