dissenting.
I respectfully dissent.
After Sophie claimed she was entitled to recovery beyond the P.I.P. benefits of the policy, State Farm instituted this action for a declaration that Sophie was not entitled to bodily injury coverage because of the household exclusion. The entire policy was incorporated into the complaint and was placed in evidence.
As stated by the majority, the issues litigated in the trial court were those of the applicability of the household exclusion to the facts of this case and the public policy considerations of such an exclusion. Because of the trial court’s decision that, other than the P.I.P. benefits, Sophie was not entitled to further coverage, and because of the serious public policy questions raised, I believe it is necessary to examine the entire policy to determine if it complies with the applicable statutes of this state. In addition to liability coverage, personal injury protection, and physical damage coverage, Kenneth purchased uninsured motor vehicle coverage. Therefore, in determining what, if any, coverage is available to Kenneth and Sophie, we must look to the four corners of the insuring agreement.
Addressing the question of coverage under the general liability provisions of the policy and relying upon case authority developed under the Motor Vehicle Financial Responsibility Act, § 42-7-101 et seq., C.R. S.1973, the majority sustains the household exclusion, thus rendering Kenneth an uninsured motorist as to Sophie’s claim. Although none of the cases cited by the majority specifically addressed the household exclusion, they do establish that the Financial Responsibility Act does not prohibit specific exclusions of coverage under general liability coverage.
Thus, the question remaining for determination is whether the uninsured motorist provision of the policy, in order to comply with the applicable statutes, must afford coverage to Sophie since she was injured as a result of the negligence of a motorist who, as to her, is in fact, uninsured. In 1965 the General Assembly enacted what is now codified as § 10-4r-319 and § 10-4-320, C.R.S.1973. Section 10-4-320 contains the following statement of policy:
“It is the policy of this state to induce and encourage all motorists to provide for their financial responsibility for the protection of others .. . .”
Section 10-4-319 contains the following language:
“No automobile liability or motor vehicle liability policy, ... shall be delivered or issued for delivery in this state with respect to any motor vehicle ... unless coverage is provided therein ... for the protection of persons insured thereunder who are legally entitled to recover dam*686ages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom ... unless insured named in the policy rejects the coverage ...(emphasis added)
Under the policy definitions as to uninsured motorist coverage, Sophie is an insured entitled to benefits. However, by further policy definition, the policy excludes the insured vehicle as an uninsured motor vehicle. The question then, is whether the exclusion of the vehicle is in compliance with Colorado law and the public policy of this state. Section 10-4-319 mandates uninsured motorist coverage unless the purchaser specifically requests a waiver or exclusion.
In State Farm Mutual Automobile Insurance Co. v. Herron, 123 Ariz. 315, 599 P.2d 768 (1979) the Supreme Court of Arizona, applying a statute substantially identical to ours, stated:
“The purpose of the Uninsured Motorist Statute is to provide for those situations in which negligent parties have no liability coverage under which injured parties may recover.”
and:
“a fortiori, where no liability coverage is in fact available, as here, the vehicle in question must be considered ‘uninsured’ for purposes of effectuating legislative intent under the Uninsured Motorist Statute.”
The court held that uninsured motorist coverage does apply when a family exclusion clause would otherwise prevent recovery.
Since our statutes mandate that no liability policy shall be delivered in this state which fails to provide uninsured motorist protection to persons insured thereunder, unless the named insured rejects such coverage, and since Kenneth did not reject uninsured motorist coverage, in whole or in part, the exclusion is contrary to the public policy of this state and does not comply with the statute.
The majority refers to Farmers Insurance Exchange v. Cocking, 29 Cal.3d 383, 173 Cal.Rptr. 846, 628 P.2d 1 (1981). Cocking is inapplicable because the question there was the constitutionality of a statute specifically allowing these types of exclusions.
I would reverse and remand with directions to enter judgment declaring that to the extent of the applicable uninsured policy limits, both Kenneth and Sophie are entitled to uninsured motorist protection.