dissenting.
I respectfully dissent.
Let me start with that with which I agree. I agree with the majority that the word "knows" in the second clause of § 183-80-107.5(1)(a), C.R.8.2002, should be construed to mean that the insured knew or, with the exercise of reasonable diligence, should have known, of the aceruing circumstance or event. I also agree that the statute is ambiguous, and the majority has cited the applicable rules of construction. However, I conclude that the second period of limitation must run consecutively and, therefore, conclude the action was timely.
Let me also state at the outset that I recognize an incongruity which results from my construction and application of the statute, namely, the insured's claim against the UIM earrier does not accrue based on his or her knowing that there is no applicable insurance unless an action is commenced against the uninsured driver, triggering the second period of limitation.
Section 18-80-107.5(1)(a) provides, in pertinent part, for two related periods of limitation as follows:
An action or arbitration of an "uninsured motorist" insurance claim shall be commenced or demanded by arbitration demand within three years after the cause of action accrues; except that, if the underlying bodily injury liability claim against the uninsured motorist is preserved by commencing an action against the uninsured motorist within [three years] then an action or arbitration of an uninsured motorist claim shall be timely if such action is commenced or such arbitration is demanded within two years, after the insured knows that the particular tortfeasor is not covered by any applicable insurance. In no event shall the insured have less than three years after the cause of action accrues within which to commence such action or demand arbitration. (Emphasis added.)
It is significant to me that the two periods of limitation are separated by the phrase "except that," which generally means that the provision preceding that phrase is supplanted in its entirety if the event or circumstance triggering the exception has occurred or exists. See Bd. of County Comm'rs v. City & County of Denver, 194 Colo. 252, 571 P.2d 1094 (1977). Under § 13-80-107.5(1)(a), the triggering event for the second period of limitations is the commencement of an action against the uninsured motorist within the period of limitations applicable to that action, three years. See § 18-80-101(1)(a)(1), C.R.S.2002 (three years from acerual).
It is also significant to me that for purposes of the initial three-year period of limitation, the claim accrues without reference to any knowledge or notice of the unavailability of other applicable insurance. It is only the second period of limitation that requires knowledge or notice of the absence of other applicable insurance for the claim against the UIM insurer to accrue. Hence the incongruity. The two periods of limitation are independent and mutually exclusive and, in my view, must run independently and, upon the triggering events consecutively.
In one scenario, the one apparently contemplated by the statute, the insured, not knowing whether there is other applicable insurance or having been misled in that regard, brings an action against the other driver within the three-year period of limitations and becomes aware through discovery that there is no applicable insurance. The insured then has not less than three years *902from discovery to request arbitration or to commence an action against the UIM carrier.
However, another, perhaps more common scenario is that the insured knows, or should have known, on the date of the accident that the other driver is uninsured. The law requires that all motor vehicles be insured with minimum coverages. Sections 10-4-705, 10-4-706, C.R.S8.2002. The law also requires that insurers provide their insureds with proof of insurance for each motor vehicle insured. Section 10-4-706.5, C.R.8.2002. It is a serious traffic offense, with a mandatory minimum sentence, for a person to operate a motor vehicle in this state without a complying insurance policy or to fail to provide proof of insurance in the event of an accident or upon request of a peace officer following any lawful traffic contact. Section 42-4-1409, It is also a serious traffic offense to fail to stop and render assistance to injured parties after an accident. See §§ 42-14-1601, 42-14-1608, C.R.8.2002.
Therefore, assuming the vast majority of motor vehicle owners, drivers, and insurers comply with the law, it is most likely that, as here, the insured would be immediately informed of the absence of other applicable insurance.
It is important that the statute of limitations for claims against an uninsured motorist carrier is identical in every pertinent respect to the statute of limitations for claims against an underinsured motorist carrier. Compare § 13-80-107.5(1)(a) with § 13-80-107.5(1)(b), C.R.S.2002. In the case of the underinsured motorist, however, the insurer may require that the insured obtain judgment against, or enter into a good faith settlement with, the underinsured motorist after giving the UIM carrier notice and an opportunity to participate. The underin-sured motorists benefit is the difference between the amount recovered from the under-insured motorist and the damages sustained by the insured, not to exceed the underin-sured motorist policy limit. See, Freeman v. State Farm Mut. Ins. Co., 946 P.2d 584 (Colo.App.1997). The two statutes have identical language, and presumably the same meaning. It would not make sense for the two periods to run concurrently when bringing an action against the underinsured driver is, or may be, a condition precedent to obtaining underinsured motorist benefits.
It is a well established rule that when two statutes of limitations apply the longer prevails. Fishburn v. City of Colorado Springs, 919 P.2d 847 (Colo.App.1995). A logical corollary to this rule should be that when, as here, a statute of limitations is ambiguous, it must be construed to provide the maximum period of limitation, not the minimum.
Here, insured "knew" that there was no applicable insurance coverage on the date of the accident. He waited almost exactly three years to sue the other driver, undertook no discovery in that action, and, almost exactly two years later, commenced this action against his UIM carrier. This procedural history may appear to be an abuse of the statute; it should not, however, force a strained construction of it.
I would reverse the judgment and remand for further proceedings on the insured's complaint.