Union Insurance Co. v. Houtz

*1066Justice KIRSHBAUM

dissenting.

This case requires the construction of certain language contained in a limitation of liability section of an uninsured motorist endorsement to an insurance policy drafted by the petitioner, Union Insurance Company (Union). The court of appeals found the language to be ambiguous. The majority holds that the language is not ambiguous. Because I believe application of the appropriate standards supports the court of appeals’ conclusion, I respectfully dissent.

The determination of whether an ambiguity exists in a written contract is a question of law. Fibreglas Fabricators, Inc. v. Kylberg, 799 P.2d 371, 374 (Colo.1990). A contractual provision is ambiguous if, given the “plain, popular, and generally accepted meaning of the words employed,” Heller v. First Ins. Exch., 800 P.2d 1006, 1008 (Colo.1990), it is subject to two possible interpretations. Davis v. M.L.G. Corp., 712 P.2d 986, 989 (Colo.1986). Once an ambiguity appears, the court must examine the contract as a whole to determine if any of the other provisions might resolve the ambiguity. Travelers Ins. Co. v. Jeffries-Eaves, Inc., 166 Colo. 220, 223, 442 P.2d 822, 824 (1968). If the ambiguity remains and therefore the challenged provision is susceptible to two different but reasonable meanings, the provision must be construed against the drafter thereof. Hecla Mining Co. v. New Hampshire Ins. Co., 811 P.2d 1083, 1090 (Colo.1991); Coxen v. Western Empire Life Ins. Co., 168 Colo. 444, 448, 452 P.2d 16, 17 (1969).

The central issue in this case is whether the term “an ‘insured’ ” appearing in section D.l.b. of an insurance policy admittedly providing some coverage to the respondents, Richard Houtz and Robert Jeffrey Ether-idge, refers to each individual insured or to both of them collectively. The section in question contains the following relevant language:

D. LIMIT OF INSURANCE
1. Regardless of the number of covered “autos,” “insureds,” premiums paid, claims made or vehicles involved in the “accident,” the most we will pay for all damages resulting from any one “accident” is the least of the following[:]
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b. The difference between the limit of this insurance and all amounts paid to an “insured” by or for anyone legally liable for damages....

(emphasis added).

The majority states that resolution of the term “an ‘insured’ ” cannot turn on the definition of the word “an” because the word “insured” is defined separately in the policy. Maj. op. at 1062. However, as the court of appeals’ opinion notes, by using the term “an ‘insured’ ” Union significantly deviated from the language employed by the General Assembly establishing the limits of uninsured motorist coverage insurers must offer. The statute establishing such limits contains the following pertinent provisions:

(5) The maximum liability of the insurer under the uninsured motorist coverage provided shall be the lesser of:
(a) The difference between the limit of uninsured motorist coverage and the amount paid to the insured by or for any person or organization who may be held legally liable for the bodily injury; or
(b) The amount of damages sustained, but not recovered.

§ 10-4-609(5), 4A C.R.S. (1994).

The word “the,” as it appears in the statute, is not ambiguous. The word “an,” as it appears in the policy, creates an ambiguity. The suggestion that we may ignore the fact that the drafters of the Union policy selected the word “an” rather than the word “the” in effect suggests that in its description of the policy’s limits we should ignore this critical difference. The presence of the word “an” before the word “insured” directly affects the interpretation of the term “an ‘insured.’ ”

The majority apparently concedes that the term “an ‘insured’ ” is subject to two contrasting interpretations. The majority makes the following observations:

As the word “insured” is defined in the policy, the term “an ‘insured’ ” could mean any one of the group of insureds, without necessarily meaning each insured.

Maj. op. at 1062 (emphasis in original). It is precisely this difficulty — that two reasonable *1067interpretations of the term “an ‘insured’ ” are invited by the contract language — that establishes the ambiguity found by the court of appeals.

The uninsured motorist provision of the policy contains the following pertinent language: 10

A. COVERAGE
1.We will pay all sums the “insured” is legally entitled to recover as damages from the owner or driver of an “unin--sured motor vehicle.”- The damages must result from “bodily injury” sustained by the “insured” caused by an “accident.” The. owner’s or driver’s liability for these damages must result from the ownership, maintenance or use of the “uninsured motor vehicle.”
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B. WHO IS AN INSURED
1. You.
2. If you are an individual, any “family member.”
3. Anyone else “occupying” a covered “auto” or a temporary substitute for a covered “auto.” The covered “auto” must be out of service because of its breakdown, repair, servicing, loss or destruction.
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D. LIMIT OF INSURANCE
1. Regardless of the number of covered “autos,” “insureds,” premiums paid claims made or vehicles involved in the “accident,” the most we will pay for all damages resulting from any one accident is the least of the following [:]
a. The LIMIT OF INSURANCE for UNINSURED MOTORISTS COVERAGE shown in the Declarations.
b. The difference between the limit of this insurance and all amounts paid to an “insured” by or for anyone legally liable for damages resulting from “bodily injury,” including all sums paid under this Coverage Form’s LIABILITY COVERAGE.
c.The amount of damages sustained but not recovered.
2.Any amount payable under this coverage shall be reduced by all sums paid or payable under any workers compensation, disability benefits or similar law.
3.Any amount paid under this insurance will reduce any amount an “insured” may be paid under this Coverage Form’s LIABILITY COVERAGE.

Section VI.E. of the policy defines the word “insured” as follows:

E. “Insured” means any person or organization qualifying as an insured in the Who Is an Insured provision of the applicable coverage. Except with respect to the Limit of Insurance the coverage afforded applies separately to each insured who is seeking coverage or against whom a claim or “suit” is brought.

As the petitioners argue, the term “an ‘insured’ ” appearing in the Limit of Insurance section D.l.b. of the uninsured motorist coverage endorsement can be construed to refer to any one'member of any of the classes defined elsewhere in the policy as an “insured.” This construction is a reasonable one — as is the construction proposed by Union and adopted by the. majority. The fact that the language supports two reasonable interpretations establishes the fact of its ambiguity.

The majority suggests that the drafters of the Union policy generally use the words “the ‘insured’ ” when referring to an individual insured. While this observation is accurate, the drafters also use the words “an ‘insured’ ” to mean “the ‘insured’ ” in a portion of the uninsured motorist endorsement describing available arbitration remedies.11 *1068In view of this inconsistency and the fact that the drafters of the policy chose to ignore the language of the applicable statute, it cannot be said that the use of the word “an” is merely superfluous.

We have previously observed that definitions contained in recognized dictionaries may be consulted to determine the ordinary meaning of words. See Hecla Mining Co., 811 P.2d at 1091-92 (citing People v. Forgey, 770 P.2d 781, 783 (Colo.1989)). The petitioner points out that when used before a noun, the words “a” or “an” have been defined as referring to a singular object, 1 Oxford English Dictionary 4 (2d ed. 1989), and to “not any particular or certain one of a class or group.” Random House Dictionary of the English Language 1 (2d ed. unabridged 1987). The respondents note that the latter dictionary also defines the words “a” or “an” as referring to multiple, similar individuals. Id. It is noteworthy that in Black’s Law Dictionary 77 (5th ed. 1979), the word “an” is defined as “An English indefinite article, equivalent to ‘one’ or ‘any’; seldom used to denote plurality.” The word “an” itself apparently has more than one meaning — a further circumstance suggesting that the term “an ‘insured’ ” is ambiguous.

In construing a contract a court must give effect to every provision thereof, if possible. Lawrence St. Partners v. Laiwence St. Venturers, 786 P.2d 508, 510 (Colo.App.1989); see also Heller, 800 P.2d at 1008. The description of coverage contained in the uninsured motorist coverage endorsement to the policy provides that Union will pay “all sums the ‘insured’ is legally entitled to recover as damages from the owner or driver of an ‘uninsured motor vehicle’ ” (emphasis added). The' definition of the word “insured” set forth in section VI.E. of the contract indicates that coverage is afforded separately to each insured except with respect to the Limit of Insurance. The construction of the term “an ‘insured’” urged by Union and adopted by the majority ignores the language of the policy indicating that the coverage afforded applies separately to each insured. If the amount of damages paid to each insured from other sources could be aggregated and offset against any uninsured motorist benefits for which Union may be liable, the provision that the coverage afforded applies separately to each insured who is seeking coverage would have no meaning. The exception, therefore, would swallow the rule. In my view, the language of section D.l.b. of the uninsured motorists coverage provision of the contract is ambiguous, and the ambiguity is reinforced by other provisions of the contract.

In such circumstances, we do not select either of two competing reasonable constructions of contract language, but rather adopt whichever construction favors the party who did not draft the agreement. In this case, the court of appeals properly applied that legal principle. I therefore would affirm the result reached by that court, and respectfully dissent from the majority’s contrary view.

LOHR and SCOTT, JJ., join in the dissent.

. The GARAGE COVERAGE FORM of the policy, which is here applicable, provides as follows: "Throughout this policy, the words 'you' and 'your' refer to the Named Insured shown in the Declarations.” Pursuant to the policy Declarations, Anytime Auto Service Corp. is the Named Insured.

. The applicable provision contains the following pertinent language:

ARBITRATION
A. If we and an "insured” disagree whether the "insured” is legally entitled to recover damages from the owner or driver of an "uninsured motor vehicle” or do not agree as to the amount of *1068damages, either party may make a written demand for arbitration....