dissenting.
I respectfully dissent.
This case centers on a determination of whether uninsured-underinsured motorist (UM/UIM) coverage of $100,000 per person and $300,000 per accident is available to petitioners, Thomas Loar and Donna Loar, because State Farm Mutual Automobile Insurance Company had never informed the Loars that they could purchase UM/UIM coverage at a level higher than the minimum statutorily required $25,000 per person and $50,000 per accident.
The majority relies on Allstate Insurance Co. v. Parfrey, 830 P.2d 905 (Colo.1992), to hold that the Loars should be able to retroactively increase their bodily injury liability coverage and, consequently, their UM/UIM coverage, to $100,000 per person and $300,000 per accident, notwithstanding that the Loars had chosen the minimum bodily injury liability coverage of $25,000 per person and $50,000 per accident. I do not read Parfrey so broadly.
In Parfrey, the insureds had twice raised their bodily injury liability coverage to levels above the minimum bodily injury liability coverage required by statute, but were never informed of their option to purchase UM/ UIM coverage at a level higher than the minimum statutory liability limits. The supreme court held that it was error for the trial court to grant summary judgment because genuine issues of fact existed concerning whether “the two renewal notices sent by Allstate to the Parfreys included information advising them of their right to obtain increased UM/UIM coverage at a level consistent with their increased liability coverage.” Parfrey, supra, 830 P.2d at 915.
Here, it was undisputed that the Loars chose to purchase the minimum bodily injury liability coverage of $25,000 per person and $50,000 per accident. It was also undisputed that the Loars had never increased then-bodily injury liability coverage. In my view, allowing the Loars the choice of increasing their bodily injury liability coverage at this point, and therefore obligate State Farm to provide increased UM/UIM coverage, would contravene the express language of § 10-4-609(2), C.R.S.2005.
Subsection (2) of § 10 — 4-609 limits the insurer’s duty to provide UM/UIM coverage to the same level as the insured’s chosen bodily injury liability coverage. It provides:
Prior to the time the policy is issued or renewed, the insurer shall offer the named insured the right to obtain higher limits of uninsured motorist coverage in accordance with its rating plan and rules, but in no event shall the insurer be required to provide limits higher than the insured’s bodily injury liability limits or one hundred thousand dollars per person and three hundred thousand dollars per accident, whichever is less.
(Emphasis added.)
Here, because the other driver’s liability coverage limit of $30,000 exceeded the Loars’ $25,000 UM/UIM coverage limit, the other driver was not “underinsured.” I would therefore affirm the trial court’s summary judgment.