author: Judge MARQUEZ.

text:
    CYPRUS AMAX MINERALS COMPANY, a Delaware corporation, Plaintiff-Appellant, v. LEXINGTON INSURANCE COMPANY, a Delaware corporation; Zurich Specialties London Limited, a Swiss corporation; and Gerling-Konzern Allgemeine Versicherungs-AG, a German corporation, Defendants-Appellees.
    No. 01CA0208.
    Colorado Court of Appeals, Div. IV.
    Feb. 28, 2002.
    Certiorari Granted Sept. 23, 2002.

      Fognani Guibord Homsy & Roberts, LLP, John D. Fognani, R. Kirk Mueller, Denver, Colorado, for Plaintiff-Appellant.
    White & Steele, P.C., Michael Anderson, Kurt A. Horton, Frederick W. Klann, Denver, Colorado, for Defendants-Appellees.
   Opinion by

Judge MARQUEZ.

In this action for reimbursement of costs it paid to investigate, defend, and settle a lawsuit, plaintiff, Cyprus Amax Minerals Company, appeals the summary judgment entered in favor of defendants, Lexington Insurance Company, Zurich Specialties London Limited, and Gerling-Konzern Allgemeiné Versi-cherungs-AG (insurers). We affirm.

Insurers each issued a claims made excess liability insurance policy to Cyprus providing excess coverage for liability imposed upon or assumed by Cyprus for, among other things, damages on account of "property damage" resulting from a "loss" as defined in the policies.

In 1998, Cyprus conveyed its majority interest in a mine to Coeur d'Alene Mines Corporation (Coeur) through a stock purchase agreement. Three years later, Coeur sued Cyprus, alleging it had learned that portions of the slope at the mine site were sustaining subsurface movement. According to Coeur's second amended complaint, this ground movement required substantial remediation and rendered the property worthless as an operating mine.

In its lawsuit against Cyprus, Coeur asserted claims for violation of the Idaho and Colorado securities acts, intentional or reckless misrepresentation in violation of the Idaho and Colorado securities acts, fraud, and rescission, all based on Cyprus' alleged failure to disclose information regarding frequent and pervasive incidents of ground instability at the mine. Coeur sought return of the purchase price of the mine together with interest, costs, attorney fees, and expenses it had incurred as a result of Cyprus' misrepresentations and omissions, and also rescission of the stock purchase agreement.

The litigation between Coeur and Cyprus was resolved by a settlement agreement, and Cyprus then requested indemnification from insurers for its defense and liability costs. Insurers denied Cyprus' claim on the basis that Cyprus' lability was not covered by their policies, and Cyprus filed this suit against insurers, alleging claims for breach of contract, breach of the covenant of good faith and fair dealing, and unfair trade acts and practices.

The trial court granted insurers' motions for summary judgment, determining that Cyprus' alleged losses were not covered by the policies issued by insurers.

I. Standard of Review

Summary judgment is appropriate only when the pleadings and supporting documents demonstrate that no genuine issue exists as to any material fact and that the moving party is entitled to judgment as a matter of law. Our review of a summary judgment is de novo. Vail/Arrowhead, Inc. v. District Court, 954 P.2d 608, 611 (Colo.1998); Hyden v. Farmers Ins. Exch., 20 P.3d 1222, 1224 (Colo.App.2000).

II. Insurance Policies

Cyprus first contends that the trial court erred in failing to apply the plain language of the insurance policies and ignoring Colorado case law governing the construction of insurance contracts. We disagree.

A.

An insurance policy is a contract and should be interpreted consistently with the well-settled principles of contract interpretation. The interpretation of an insurance contract is a matter of law, which we review de novo. Compass Ins. Co. v. City of Littleton, 984 P.2d 606, 613 (Colo.1999).

The language of an insurance policy should be enforced according to its plain terms if they are clear and unambiguous. Tynan's Nissan, Inc. v. American Hardware Mut. Ins. Co., 917 P.2d 321, 323 (Colo.App.1995).

The insurance policies at issue here provide in pertinent part that the underwriters will indemnify the insured by reason of the liability "(a) imposed upon the Insured by law, or (b) assumed by the Insured under contract or agreement, for damages on account of ... Property Damage ... resulting from each Loss, but only such ... Property Damage ... neither expected nor intended by the Insured."

The policies define "property damage" as "(a) physical injury to or destruction of tangible property, including the loss of use thereof resulting therefrom; (b) loss of use of tangible property which has not been physically injured or destroyed." The term "loss" is defined as "an accident, including continuous or repeated exposure to the same general harmful conditions." This definition of "loss" is similar to the definition of "occurrence" often used in comprehensive general liability policies. See Hecla Mining Co. v. New Hampshire Ins. Co., 811 P.2d 1083 (Colo.1991).

In its order granting summary judgment, the trial court concluded that "(alll six claims in ... [Coeur's] Second Amended Complaint are based upon allegations that Cyprus negligently, recklessly, or intentionally failed to disclose to Coeur material facts about the Mine, which [alffected the value of the transaction between Coeur and Cyprus," and "Itlhese allegations are not allegations of 'property damages' under that definition in the policy."

The allegations of Coeur's second amended complaint support this determination because that complaint did not allege liability for "property damage." Coeur's complaint sought to hold Cyprus liable for fraud and misrepresentations in connection with the sale of the mine. These claims did not expose Cyprus to liability for causing damage to the property, but rather for economic losses resulting from the alleged misrepresentation of the value of the mine. Such damages are not "property damage" within the meaning of insurers' policies. See M.L. Foss, Inc. v. Liberty Mut. Ins. Co., 885 P2d 284 (Colo.App.1994)(damages for difference between actual value of property and value of property as represented by insured in connection with sale are not property damages); see also Safeco Ins. Co. v. Andrews, 915 F.2d 500 (9th Cir.1990)(economic losses resulting from failure to disclose facts relevant to the property's value are not property damages); State Farm Fire & Cas. Co. v. Brewer, 914 F.Supp. 140 (S.D.Miss.1996)(claims of negligent and intentional misrepresentation and fraud are pecuniary in nature); Bush v. Beal, 26 Kan.App.2d 183, 987 P.2d 1103 (1999)(eco-nomic losses sustained by misrepresentations are not property damage); Qualman v. Bruckmoser, 163 Wis.2d 361, 471 N.W.2d 282 (Ct. App.1991)(damages for claims of breach of contract and misrepresentation are pecuniary in nature and do not constitute property damages).

We also reject Cyprus' contention that the language in the insurance policies does not support the "causal nexus" analysis urged by insurers. As insurers contend, the policy language requiring that the alleged "property damage" result from a "loss" creates a requirement for a causal connection between the "property damage" and Cyprus' alleged misrepresentations.

Here, although the physical damage sustained by the mine was described in Coeur's complaint, nothing in that complaint alleged that Cyprus' misrepresentations caused any damage to the mine. Rather, Coeur alleged that the misrepresentations led it to purchase the mine and subsequently incur the cost of remediating damage to the mine site and closing the mine. Thus, there is no causal connection between the alleged misrepresentations and the physical damage; the only causal connection is between Cyprus' misrepresentations and Coeur's economic losses. See Martin v. State Farm Fire & Cas. Co., 146 Or.App. 270, 932 P.2d 1207 (1997)(no causal connection between misrepresentations and physical damage); State Farm Lloyds v. Kessler, 932 SW.2d 732 (Tex.App.1996)(alleged misrepresentations did not expose insured to lability for damage to tangible property); see also Safeco Ins. Co. v. Andrews, supra (claim of misrepresentation did not expose insured to liability for damage to tangible property); State Farm Fire & Cas. Co. v. Brewer, supra (alleged misrepresentation of defendants did not cause property damage); Bush v. Beal, supra (damage to conveyed property not caused by negligent misrepresentation).

Nor are we persuaded that Compass Insurance Co. v. City of Littleton, supra, upon which Cyprus relies, requires a different result. The supreme court in Compass held that if the insurers had intended the term "damages" to have only a limited, technical meaning, they had the opportunity to indicate this limitation clearly in their policies, but did not do so. Cyprus reasons that insurers could have stated in their policies that coverage was not intended for monetary claims based on intentional or negligent misrepresentations of an insured, rather than relying on a causal nexus analysis. However, the absence of such a provision here is not controlling. Rather, Cyprus' claim fails because Coeur sought recovery for economic losses, not property damage, and because there was no causal connection between the alleged misrepresentations and the physical damage.

B.

Cyprus also contends that the trial court erred in concluding that its claim is barred from insurance coverage by the holding in M.L. Foss, supra. We disagree.

In M.L. Foss, the insured sold property to a purchaser, who later learned that the property was contaminated and that the Environmental Protection Agency had instituted a cleanup plan. The purchaser sued the insured on claims including breach of contract and fraud and sought damages resulting from the difference between the value of the property as represented by the insured and the value in light of the contamination and cleanup.

A division of this court concluded in M.L. Foss that, because the underlying complaint did not allege "property damage," there was no coverage under the liability policy. The division reasoned that misrepresentations made in connection with the sale of property do not constitute an "occurrence" or "accident" within the meaning of comprehensive general liability policies. Without deciding whether negligent misrepresentations are "accidents," the division concluded that even if the complaint alleged negligent misrepresentation, it did not allege "property damage" within the meaning of the policy. Rather, the complaint alleged purely economic losses resulting from the alleged nondisclosure of material facts in connection with the sale.

Cyprus contends that M.L. Foss is factual-Ty distinguishable because it did not involve physical injury or the loss of use of tangible property. We disagree.

Here, Coeur, much like the purchaser in M.L. Foss, alleged economic losses resulting from nondisclosure of material facts. Coeur sought return of the purchase price of the mine on grounds that the securities were worth substantially less than what Coeur had paid Cyprus for the investment. Even the reimbursement requested for costs and expenses Coeur had or would incur were alleged "as a result of the representations and omissions which entitled [Coeur] to rescind said transaction." Any allegations in Coeur's complaint of the costs of remediation or the mine's instability and unsuitability for mining operations from the date of contracting were made in support of its misrepresentation claims.

Nor are we persuaded by Cyprus' contention that M.L. Foss is distinguishable because it does not categorically bar coverage for negligent misrepresentation claims.

Here, the trial court acknowledged that some of Coeur's claims alleged negligence and not intentional or knowing conduct, but found that "the complaint against Cyprus is based on monetary damages and rescission for not properly representing the mine in the true light." The court concluded that "[the fact that some claims allege negligence rather than intentional or reckless conduct is not significant." We agree.

The division in M.L. Foss relied on Safeco Insurance Co. v. Andrews, supra, a decision involving facts similar to those in the present case. In Safeco, an insured seller of a home sought a declaration that its insurer had a duty to defend and indemnify the insured in a suit by the purchaser of the home. The purchaser alleged raisrepresentation based on the insured's failure to inform the purchaser of facts affecting the value or desirability of the property, including facts that the property had a serious problem with unstable, shifting, and moving earth, defective electrical wiring, defective plumbing, and water leakage. The policy provided that the insurer would defend against a claim for "damages because of ... property damage caused by an occurrence."

The Ninth Cireuit Court of Appeals held that the relief sought by the purchaser was not for damage to tangible property, but rather for "economic loss resulting from [the insured's] alleged failure to discover and disclose facts relevant to the property's value and desirability." Safeco Ins. Co. v. Andrews, supra, 915 F.2d at 502. The court further concluded that although the defective condition of the property was "an element of [the purchaser's] claims, the defects cannot ... be considered the cause of [the purchaser's] damages." Further, "[the cause of the damage was [the insured's] alleged misrepresentations, which are not an 'occurrence' ... under the terms of the policy." Safeco Ins. Co. v. Andrews, supra, 915 F.2d at 502. Thus, there was no potential for liability within the scope of the insurance coverage.

Even if we assume that Coeur's complaint alleged negligent misrepresentation and that the division in M.L. Foss did not categorically bar coverage for such claims, Cyprus is not entitled to indemnification for these claims. Coeur, much like the purchaser in ML. Foss, sought economic damages stemming from misrepresentations and fraud, and not property damages.

C.

In support of its position, Cyprus further contends that other states recognize that property damage arising from misrepresentations is covered by comprehensive general lability insurance policies. We are not persuaded.

The cases cited by Cyprus support the proposition that a negligent misrepresentation may constitute an "occurrence" or "accident" within the meaning of various liability insurance policies. See First Newton Nat'l Bank v. General Cas. Co., 426 NW .2d 618 (Iowa 1988)(negligence in explaining financing of two distressed farms); Gaylord Chem. Corp. v. ProPump, Inc., 753 So.2d 349 (La.Ct.App.2000)(representation that pump would perform to certain specifications); Sheets v. Brethren Mut. Ins. Co., 342 Md. 634, 679 A.2d 540 (1996)(septic system represented to be in good working condition); Wood v. Safeco Ins. Co., 980 SW.2d 43 (Mo.Ct.App.1998)(representation that residence not located in flood plain); State Farm Fire & Cas. Co. v. Helminiak, 74 Ohio Misc.2d 91, 659 N.E.2d 385 (Com.Pl.1995)(representation that bridge could be built).

However, these cases represent the minority view. In M.L. Foss, the division noted that the generally accepted rule was that alleged misrepresentations made in connection with the sale of property do not constitute an "occurrence." See also Gregory T. Lawrence, Sheets v. Brethren Mutual: Maryland's High Court Misconstrues CGL to Cover Excluded Eeonomic Loss Caused by Negligent Misrepresentation, 27 U. Balt. L. Rev. 189 (1997)(recognizing the majority of jurisdictions follow the rule in Safeco Ins. Co. v. Andrews, supra, that general lability insurance policies do not cover liability from negligent misrepresentations either because of lack of cecurrence or property damage).

Here, we need not address whether a negligent misrepresentation can ever constitute an "occurrence" or "loss" under a general liability insurance policy. Because Coeur sought economic losses from the alleged nondisclosure and not losses from "property damage," and because Coeur did not allege a causal connection between Cyprus' misrepresentations and the incidents of property damage at the mine, we conclude that Coeur's claims are not covered by insurers' policies.

III. No Material Disputed Facts

Asserting that the question of what Coeur alleged and sought to recover is a disputed factual issue, Cyprus finally contends that the trial court erred in concluding there were no material disputed facts. To this end, Cyprus argues that the court erred in restricting its review to the second amended complaint, ignoring evidence in affidavits and exhibits. We disagree.

The duty to defend is broader than the duty to indemnify. The obligation to defend arises from allegations in the complaint that, if sustained, would impose liability covered by the policy. Hecla Mining Co. v. New Hampshire Ins. Co., supra, 811 P.2d at 1089; Employers' Fire Ins. Co. v. Western Guar. Fund Servs., 924 P.2d 1107, 1110-11 (Colo.App.1996). The duty to indemnify relates to the duty to satisfy a judgment entered against the insured. Constitution Assocs. v. New Hampshire Ins. Co., 930 P.2d 556, 563 (Colo.1996). Whether coverage is ultimately available under a contract is generally a question of fact to be decided by the trier of fact. Hecla Mining Co. v. New Hampshire Ins. Co., supra, 811 P.2d at 1089; see Constitution Assocs. v. New Hampshire Ins. Co., supra (issue of coverage or duty to indemnify must await final resolution of underlying case).

However, if there is no duty to defend, there is no duty to indemnify. City of Arvada v. Colorado Intergovernmental Risk Sharing Agency, 988 P.2d 184, 187 (Colo.App.1999), aff'd, 19 P.3d 10 (Colo.2001). The duty to indemnify does not arise unless the policy actually covers the alleged harm. Constitution Assocs. v. New Hampshire Ins. Co., supra, 930 P.2d at 563. Thus, if a complaint does not allege any facts that could impose liability covered by the policy, there can be no duty to defend or to indemnify. See TerraMatrix Inc. v. United States Fire Ins. Co., 939 P.2d 483 (Colo.App.1997); Colorado Farm Bureau Mut. Ins. Co. v. Snowbarger, 934 P.2d 909 (Colo.App.1997)

Here, insurers filed motions for summary judgment asserting that Coeur's lawsuit did not allege property damage resulting from a loss; instead, the lawsuit sought to recover for uncovered economic damages, that is, the amount originally paid for the stock. In response, Cyprus asserted, among other things, that Coeur's claims sought damages arising from property damage. Cyprus submitted several affidavits from expert witnesses, the stipulation of settlement, and other materials, including a letter from Coeur regarding a possible settlement, which included an itemization of damages for stabilization costs at the mine. Cyprus' affidavits contain information regarding the extent of the damage the mine sustained, as well the "opinion" of various experts that the insurance policies at issue provide coverage for the claims asserted by Coeur.

In granting summary judgment, the trial court stated that "this [motion] turns on the nature of the Second Amended Complaint of Coeur against Cyprus" and did not discuss Cyprus' affidavits or the settlement materials. We perceive no error.

Expert testimony that the insurers' poli-cles provide coverage does not create an issue of fact. Such testimony is merely an opinion on the legal question of coverage. See Tynan's Nissan, Inc. v. American Hardware Mut. Ins. Co., supra. Consequently, the court did not err in ignoring Cyprus' affidavits.

Cyprus also submitted the stipulation of settlement, which states, "The payment of the Settlement Amount by Cyprus to Coeur is and shall be for, and only for, the payment of alleged direct and actual property damage claims of Coeur." In support, Cyprus cites Home Insurance Co. v. St. Paul Fire & Marine Insurance Co., 229 F.3d 56 (1st Cir.2000), and Bankwest v. Fidelity & Deposit Co., 63 F.3d 974 (10th Cir.1995), in which the courts determined that when a case is settled, the duty to indemnify must be determined on the basis of the settlement. In both cases, however, the courts first determined that the insurer had a duty to defend against at least one of the claims brought against the insured.

Further, insurers here were not par-not bound by its terms. tions in the complaint, not the recitals in the settlement agreement or in correspondence. See Colorado Farm Bureau Mut. Ins. Co. v. Snowbarger, supra (actually liability of insured is not the criterion for the insurance company's obligation to defend). ties to the settlement agreement and were Additionally, the duty to defend arises from the factual allega-Snowbarger, supra (actual liability of insured

In the present case, although the underlying litigation was resolved through a settlement agreement, because we conclude that Coeur did not allege any facts that would give rise to a duty to defend or to Hability under the policies at issue, we conclude that insurers had no duty to indemnify Cyprus. See Constitution Assocs. v. New Hampshire Ins. Co., supra; Hecla Mining Co. v. New Hampshire Ins. Co., supra.

The judgment is affirmed.

Judge TAUBMAN and Judge VOGT concur.


source: Caselaw Access Project

author: Judge NIETO.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Chayne Anthony SCIALABBA, Defendant-Appellant.
    No. 00CA0472.
    Colorado Court of Appeals, Div. V.
    Feb. 28, 2002.
    Certiorari Denied Sept. 23, 2002.

      Ken Salazar, Attorney General, Michelle L. Prince, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Thor Y. Inouye, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge NIETO.

Defendant, Chayne Anthony Scialabba, appeals the judgment of conviction entered upon a jury verdict finding him guilty of tampering with a witness and violation of a restraining order. We affirm.

In December 1998, defendant was arrested for assault, and a mandatory restraining order was issued prohibiting defendant from directly or indirectly communicating with the victim, who had been his girlfriend. On the day the restraining order issued, defendant wrote a letter to "Brittany Lynnwards." The letter was mailed to the victim's address. While "Brittany Lynnwards" is not the vie-tim's name, the victim testified that defendant had invented that name for her and had referred to her by it in the past. The victim also testified that she believed the letter was intended for her. The letter stated that if the victim did not appear in court, then the charges against defendant would be dropped, and "that would be [the victim's] way of making things good with [defendant]."

In February 1999, defendant was charged with one count of violation of a restraining order and two counts of tampering with a witness. One count of tampering with a witness was later dismissed. Defendant pleaded not guilty on March 29, 1999, and trial was set for September 22, 1999. On September 16, 1999, the prosecution filed a motion to continue the trial on the ground that the victim would not be available for trial as originally scheduled. The trial court granted the motion over defendant's objection, and a jury trial was held on November 17, 1999. Defendant was convicted on both counts and now appeals the judgment of conviction.

L.

Defendant contends the trial court violated his statutory and constitutional rights to speedy trial. Specifically, he argues that the delay caused by the prosecution's motion to continue the trial should not be excluded from the speedy trial period because the prosecution failed to comply with the requirements of § CRS. 2001. We disagree.

A.

Under § 18-1-405, C.R.98.2001, a defendant has the right to be brought to trial within six months following his plea of not guilty. However, certain periods of time may be excluded from the time computation for speedy trial purposes. Among the excluded time periods is the delay, not exceeding six months, resulting from a continuance granted at the request of the prosecution, without the consent of the defendant, if (1) material evidence is unavailable; (2) the prosecution has exercised due diligence to obtain the evidence; and (8) there are reasonable grounds to believe the evidence will be available at a later date. Section 18-1-405(6)(g)(I). Whether this exclusion applies and permits a continuance beyond the original speedy trial period is a determination committed to the sound discretion of the trial court. See People v. Koolbeck, 703 P.2d 673 (Colo.App.1985).

It is uncontested that the testimony of the victim was material to the prosecution's case. It is also uncontested that on the original trial date she was in Florida and unavailable because she was in an advanced stage of pregnancy.

Defendant argues that the prosecution did not exercise due diligence to obtain the presence of the victim because they knew she was pregnant when the trial was scheduled and they did not have her under subpoena. We are not persuaded.

The prosecution asserted to the trial court that when the trial was originally scheduled, it was anticipated that the victim would have delivered her baby and been available for trial. Defendant did not challenge this assertion or suggest any bad faith by the prosecution in scheduling the original trial date. Under these circumstances, the trial court did not err by finding that the prosecution's prior knowledge of the victim's pregnancy was not evidence of a lack of due diligence.

We are also not persuaded by defendant's argument that the absence of a subpoena required a finding of lack of due diligence. The victim was cooperative and in fact appeared for the rescheduled trial two months later. The trial court found that the prosecution exercised due diligence and that the extension of the victim's pregnancy beyond her original expected due date was the cause of her nonappearance. The trial court further found no evidence that she "would not have appeared post partum but for the extension [of her pregnancy]." This determination was not an abuse of discretion. See People v. Wolfe, 9 P.3d 1137 (Colo.App.1999){(no abuse of discretion in finding due diligence when extenuating cireumstances excused prosecution's failure to serve a valid subpoena on out-of-state witness).

B.

Defendant also argues that the trial court violated his constitutional right to a speedy trial. However, in the trial court, defendant based his speedy trial objections solely on his statutory right to be tried within six months, and he did not ask the court to determine whether, under the applicable four-part balancing test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and People v. Small, 631 P.2d 148 (Colo.1981), the delay in this case violated the state and federal constitutions. Thus, defendant is precluded from raising the issue for the first time on appeal. See People v. Cagle, 751 P.2d 614 (Colo.1988){it is axiomatic that an appellate court will not consider constitutional issues not raised in the trial court).

Accordingly, we conclude that defendant's speedy trial rights were not violated.

IL.

Defendant next contends that the trial court committed reversible error when it refused to instruct the jury on the affirmative defense of abandonment with respect to the charge of tampering with a witness. We disagree.

Section 18-8-707(1), C.R.8.2001, provides in part:

A person commits tampering with a witness or victim if he intentionally attempts without bribery or threats to induce a witness or victim ... to:
(a) Testify falsely or unlawfully withhold any testimony; or
(b) Absent himself from any official proceeding to which he has been legally summoned; or
(c) Avoid legal process summoning him to testify.

"Under the statute, it is not necessary that the defendant succeed in his attempt or actually induce the witness to do anything." People v. Moyer, 670 P2d 785, 791 (Colo.1983)(interpreting identical predecessor statute to § 18-8-707).

The following evidence was obtained from recordings of defendant's telephone calls from the jail. Approximately one month after defendant mailed the letter to the victim's address, he asked his mother to tell the victim not to appear in court. Defendant later told his mother that if she had not already spoken with the witness, she should refrain from doing so. At trial, defendant argued that his request that his mother refrain from contacting the victim was evidence that he had abandoned his effort to contact the victim, and therefore the jury should be instructed on the affirmative defense of abandonment. The trial court denied defendant's request because it concluded that the evidence showed that defendant had already completed the crime of tampering with a witness at the time of the alleged abandonment.

The essence of the crime of tampering with a witness is an intentional attempt to interfere with a witness, without regard to the success or failure of the attempt. Therefore, we agree with the trial court and conclude that defendant could not have abandoned the crime of tampering with a witness once he attempted to influence the victim in a manner proscribed by § 18-8-~707(1), because the crime was completed when the attempt was made. See People v. Marmon, 903 P.2d 651, 654 n. 2 (Colo.1995)("Abandonment and renunciation of criminal purpose are not affirmative defenses to completed crimes."); People v. Johnson, 41 Colo.App. 220, 585 P.2d 306 (1978)(abandonment is no defense to the completed crime of criminal mischief); see also Hubbard v. State, 210 Ga.App. 141, 435 S.E.2d 709 (1993)(a person cannot abandon an already completed crime); Barnes v. State, 269 Ind. 76, 378 N.E.2d 839 (1978)(same).

Defendant contends that he was entitled to assert the affirmative defense of abandonment provided in § 18-2-101(8), C.R.S.2001, the statute defining the inchoate crime of criminal attempt. Because the crime of tampering with a witness is defined as attempting to interfere with a witness, defendant argues that the abandonment defense provided in § 18-2-101(8) applies. We disagree.

The General Assembly specifically limited the affirmative defense of abandonment in § 18-2-101(8) to "a charge under this seetion." Absent some legislative intent to apply the defense to tampering with a witness, an intent that we do not discern, it has no application to that erime.

As noted above, generally a defendant cannot abandon a completed crime. However, the General Assembly has the prerogative to formulate and limit affirmative defenses. People v. Salazar, 920 P.2d 893 (Colo.App.1996). "[In a strict analytical sense, the crime of attempt [under § 18-2-101] is complete onee the actor intentionally takes a substantial step towards the commission of the crime," but nonetheless, the statute makes abandonment an affirmative defense to the inchoate crime of criminal attempt under § 18-2-101. People v. Johnson, supra, 41 Colo.App. at 222, 585 P.2d at 308. Therefore, because § 18-2-101(8) is specifically limited and no other legislative enactment makes abandonment an affirmative defense to tampering with a witness, the general rule that the defense of abandonment is not available for completed crimes applies here.

Accordingly, we conclude that the trial court correctly denied defendant's request for a jury instruction on the affirmative defense of abandonment.

TIL.

Defendant also contends that the evidence was insufficient to convict him of violation of a restraining order. He specifically argues there was no evidence that the restraining order was in effect at the time the letter was sent because the letter was dated the same day that the restraining order was issued. Again, we disagree.

In determining the sufficiency of the evidence, a reviewing court must determine whether the evidence, viewed as a whole and in the light most favorable to the prosecution, is sufficient to support a conclusion by a reasonable person that the defendant is guilty beyond a reasonable doubt of the crime charged. Kogan v. People, 756 P.2d 945 (Colo.1988).

There was significant evidence showing that defendant attempted to conceal his contact with the victim. As previously noted, on the same day the restraining order was issued, defendant wrote a letter to "Brittany Lynnwards" at the victim's address. The victim testified at trial that defendant had referred to her in the past by that name and that the letter was intended for her. There was also evidence that defendant had said he was going to "put out there" that he wrote the letter the night he was arrested, which was four days before the restraining order issued, and that the letter was to his sister. There was no evidence that defendant had a reason to conceal his contact with the victim other than his knowledge of the restraining order. This evidence was sufficient to support a conclusion by a reasonable person that defendant was concealing his contact with the victim because he was aware that the restraining order had been issued at the time the letter was written.

Accordingly, there was sufficient evidence to support defendant's conviction for violation of a restraining order.

IV.

Defendant next contends that his right to due process and to a trial by jury were violated because the trial court failed to instruct the jurors that they must unanimously agree on the acts committed by defendant. Specifically, he argues that the prosecution presented evidence of two separate incidents of contact with the victim but did not elect which incident was the basis for the charge of tampering with a witness. We are not persuaded.

Defendant did not object to the jury instructions at trial and raises this issue for the first time on appeal. An appellate court will not pass upon issues that have not been presented to the trial court by contemporaneous objection unless the alleged error constitutes plain error. "Plain error occurs when, after review of the entire record, a court can conclude with 'fair assurance that the error so undermined the fandamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction.'" Moore v. People, 925 P.2d 264, 269 (Colo.1996)(quoting People v. Kruse, 839 P.2d 1, 3 (Colo.1992)).

[When there is evidence of many transactions, any one of which would constitute the offense charged, the prosecution may be compelled to select the transaction on which it relies for a conviction or, in the alternative, the jurors should be instructed that in order to convict the defendant they must either unanimously agree that the defendant committed the same act or acts or that the defendant committed all the acts described by the victims and included within the period charged. Nevertheless, such an election or instruction is not necessary when the crimes charged occurred in a single transaction.

People v. Thurman, 948 P.2d 69, 71 (Colo.App.1997).

Defendant notes that the prosecution presented evidence of the letter mailed to the victim's address suggesting that the victim not appear at trial and evidence of a subsequent telephone conversation during which defendant told his mother to tell the victim not to appear at trial He argues that the jury could have convicted him on the charge of tampering with a witness for either instance and therefore may not have unanimously agreed on which of the two acts constituted tampering.

However, the prosecution argued to the jury that the letter was the basis for the tampering charge and that defendant's subsequent actions, including the phone call to his mother, demonstrated his intent to keep the victim from testifying at trial. Defendant's intent was an element of the crime of tampering with a witness. See § 18-8-707, C.R.S.2001. Given the prosecution's argument and the fact that at trial defendant did not perceive any confusion in the evidence that would raise a unanimity issue, we are not persuaded that the lack of an instruction casts doubt on the reliability of the verdict.

We find no plain error under these cireum-stances.

v.

Defendant next contends that the statutory scheme classifying tampering with a witness as a class four felony while clasgify-ing attempted bribery of a witness as a class five felony violates his right to equal protection.

However, defendant did not raise this issue in the trial court. Therefore, we decline to consider it. See People v. Cagle, supra; People v. Boyd, 30 P.3d 819 (Colo.App.2001)(declining to consider equal protection argument not raised in trial court).

The judgment is affirmed.

Judge DAVIDSON and Judge CASEBOLT concur.


author: Judge METZGER.

text:
    Rodney E. PIKE and Rita J. Pike, Plaintiffs-Appellants, v. AMERICAN STATES PREFERRED INSURANCE COMPANY, an Indiana corporation, Defendant-Appellee.
    No. 06CA0400.
    Colorado Court of Appeals, Div. I.
    Feb. 28, 2002.
    Rehearing Denied April 4, 2002.
    Certiorari Denied Oct. 15, 2002.

      Norton Frickey, P.C., Robert B. Carey, Colorado Springs, Colorado, for Plaintiffs-Appellants.
    Hall & Evans, LL.C., Alan Epstein, Denver, Colorado, for Defendant-Appellee.
   Opinion by

Judge METZGER.

Plaintiffs, Rodney E. Pike and Rita J. Pike, appeal the summary judgment entered in favor of defendant, American States Preferred Insurance Company. We affirm.

Anthony and Loretta Estrada had a homeowners policy with American States. On October 1, 1996, plaintiffs' fifteen-year-old son and the Estradas' teenage son, took the Es-tradas' go-cart out of their home garage for a ride, contrary to the Estradas' rule that the go-cart was not to be used without parental supervision. Plaintiffs' son was driving the go-cart on a public roadway some distance from the Estradas' home when he was struck and killed by a pickup truck.

Plaintiffs brought a wrongful death action against the Estradas, asserting claims for negligence and negligent entrustment. American States reviewed the Estradas' homeowners policy, interviewed them about the facts surrounding the accident, and determined that no coverage existed. It refused to defend the Estradas in the lawsuit and refused to settle the claim.

After entry of a stipulated default judgment for plaintiffs in the wrongful death action, plaintiffs and the Estradas entered into a "Bashor" agreement, see Northland Insurance Co. v. Bashor, 177 Colo. 463, 494 P.2d 1292 (1972), whereby the Estradas assigned all claims they might have against American States to plaintiffs. Plaintiffs then filed this action against American States, alleging claims for (1) breach of the insurance contract, (2) breach of the duty to settle or defend the Estradas by denying coverage, and (8) breach of the implied covenant of good faith and fair dealing. Plaintiffs and American States filed cross-motions for summary judgment; the trial court denied plaintiffs motion and entered summary judgment in favor of American States. Plaintiffs appeal.

Summary judgment is a drastic remedy that is appropriate only if the pleadings and supporting documents demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo.1988). Our review of an order granting summary judgment is de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo.1995).

I.

Plaintiffs contend the trial court erred in determining that the "insured location" and "dead storage" exceptions to the homeowners policy's automobile exclusion did not apply and that, therefore, no coverage existed. We find no error.

Because an insurance policy is a contract, the principles of contract interpretation are applicable. Chacon v. American Family Mutual Insurance Co., 788 P.2d 748 (Colo.1990). Unless the policy language is ambiguous, it must be enforced as written. State Farm Mutual Automobile Insurance Co. v. Stein, 940 P.2d 384 (Colo.1997).

Language in an insurance contract is ambiguous if it is susceptible of more than one reasonable interpretation. Hecla Mining Co. v. New Hampshire Insurance Co., 811 P.2d 1083 (Colo.1991). To determine whether insurance policy language is ambiguous, the court must consider the allegations in the complaint in the underlying action in light of the relevant policy language. Terra-Matrix, Inc. v. United States Fire Insurance Co., 939 P.2d 483 (Colo.App.1997).

We review de novo a trial court's interpretation of an insurance contract and its determinations concerning ambiguity. Union Insurance Co. v. Houtz, 883 P.2d 1057 (Colo.1994).

The Estradas' homeowners policy provided coverage for an "occurrence," which the policy defined as an "accident resulting in personal injury or property damage." The term "accident" was not defined.

The motor vehicle exclusion to that coverage stated, as relevant here:

Personal Liability and ... Medical Payments to Others do not apply to 'bodily injury' or property damage':
f. arising out of:
(1) the ownership, maintenance, [or] use . of motor vehicles or all other motorized land conveyances owned or operated by ... an "insured";
(2) the entrustment by 'insured of a motor vehicle or any other motorized land conveyance to any person; or
(8) statutorily imposed vicarious parental liability for the actions of a child or minor using a conveyance excluded in paragraph (1) or (2) above.

However, the policy provided certain exceptions to the motor vehicle exelusion. As pertinent here, it stated:

This exclusion does not apply to:
(2) a motorized land conveyance designed for recreational use off public roads, not subject to motor vehicle registration and:
(b) owned by an "insured and on an "insured location'; [or]
(4) a vehicle or conveyance not subject to motor vehicle registration which is:
(c) in dead storage on am "insured location.' (emphasis added)

The parties stipulated that the go-cart was a "motorized land conveyance designed for recreational use off public roads, not subject to motor vehicle registration," within the meaning of paragraph (2) of the policy's exceptions to the motor vehicle exclusion. Thus, the dispositive question is whether the go-cart was either "owned by an 'insured' and on an 'insured location'" (paragraph 2(b)) or "in dead storage on an "insured location'" (paragraph 4(c)) at the time of the accident here.

The policy defined an "insured location" as:

a. the 'residence premises';
b. the part of other premises, other structures and grounds used by you as a residence and:
(1) which is shown in the Declarations; or
(2) which is acquired by you during the policy period for your use as a residence;
any premises used by you in connection with a premises in 4.a. or 4.b. above;
d. any part of a premises:
(1) not owned by an 'insured'; and
(2) where an 'insured' is temporarily residing;
e. vacant land, other than farm land, owned by or rented to an "insured";
f. land owned by or rented to an "insured' on which a one or two family dwelling is being built as a residence for an "insured';
g. individual or family cemetery plots or burial vaults of an "insured; or
h. any part of a premises occasionally rented to an 'insured' for other than 'business' use.

The trial court determined that the "insured location" was the Estradas' residence premises, and the other structures and grounds used by the Estradas as a residence. It reasoned that, because the accident did not occur on an insured location, no coverage existed.

A.

Plaintiffs argue this was error. They first contend the "Estradas' negligence in failing to secure the go-cart is the 'oceur-rence' that is the subject of this lawsuit." Thus, they reason, because this failure to secure the go-cart occurred in the garage, and because the garage was an "insured location," the automobile exclusion did not apply and coverage existed. We agree with the trial court.

7 In deciding when an "accident" occurred, for purposes of determining what constitutes an "occurrence," the supreme court, in Samuelson v. Chutich, 187 Colo. 155, 160, 529 P.2d 631, 634 (1974)(involving an explosion six years after a gas line was improperly laid), held: "'The "accident" causing injury in this case occurred at the time of the explosion, not when the allegedly wrongful act was committed.'" The court relied on Century Mutual Insurance Co. v. Southern Arizona Aviation, Inc., 8 Ariz.App. 384, 386, 446 P.2d 490, 492 (1968), which held that the word "accident" in an insurance policy "clearly implies a misfortune with concomitant damage to a victim, and not the negligence which eventually results in that misfortune."

The Samuelson court bolstered this conclusion by adopting the reasoning in Home Mutual Fire Insurance Co. v. Hosfelt, 233 F.Supp. 368, 370 (D.Conn.1962): "To stretch the scope of 'accident' backward in time to reach the date of the earliest beginning of any prior event which might be regarded as having a causal relation to the unlooked-for mishap would introduce ambiguity where none now exists." The majority of jurisdictions adhere to this rule. See generally, M. McMahon, Annotation, Event Triggering Liability Insurance Coverage as Occurring Within Period of Time Covered by Liability Insurance Policy Where Injury or Damage is Delayed-Modern Cases, 14 A.L.R.5th 695 (1993).

We apply analogous reasoning in determining where the "accident" occurred here. It is undisputed that the "accident," that is, "damage to a victim," here occurred at an intersection of two public roads, some distance from the Estradas' property. Because the location of the damage, and not the location of the Estradas' alleged failure to secure the go-cart, is the pivotal fact, the trial court correctly determined that the automobile exclusion applied and no coverage existed.

We reject plaintiffs' alternative argument that the phrase "on an insured location" is ambiguous. Their reliance on decisions from other jurisdictions for this proposition is misplaced in light of the clearly articulated rule in Samuelson v. Chutich, supra.

B.

For substantially similar reasons, we agree with the trial court that the go-cart was not in "dead storage" at the time of the accident and, therefore, no coverage existed.

The term "dead storage" is not defined in the policy. However, we agree with the trial court that "it must be something more than 'storage,'" and adopt the reasoning in American Family Mutual Insurance Co. v. Van Gerpen, 151 F.3d 886, 888 (8th Cir1998):

[DJead storage is clearly a type of storage, and the state of being in storage is inconsistent with the state of being in use. The "dead" in "dead storage" suggests, at the least, that the engine would not be running. Reasonable minds might differ as to whether dead storage requires disconnect ing the battery, draining the radiator, emptying the gas tank, or placing the [vehicle] up on blocks, but it is unreasonable to suggest that a [vehicle] is in "dead storage" when the engine is operating, the wheels are turning, and several people are riding around on it.

See also P. Rambow, A Practical Guide on Emerging Issues in Inswrance Policy Lon-guage, 27 Wm. Mitchell L. Rev. 1105 (2000).

Clearly, here, the go-cart was being operated on a public road when the accident occurred. Thus, the trial court was correct in concluding that the go-cart was not in dead storage on an insured location at the time of the accident.

Our review of the cases plaintiffs cite from other jurisdictions does not persuade us otherwise; Even if authorities are split on the meaning of "dead storage," the policy here, when read in conjunction with Colorado law, provides coverage only when such storage is "on an 'insured location'" at the time of the accident. The go-cart was not on an insured location and was not in storage, dead or otherwise, when the accident here occurred.

Consequently, because the material facts were undisputed, the salient policy terms were not ambiguous, and the relevant law precluded coverage, the entry of summary judgment in favor of American States was correct.

IL.

We do not agree with plaintiffs that the question of coverage for their negligence claim, insofar as it is premised on a negligent entrustment or negligent supervision theory, should survive summary judgment.

In Northern Insurance Co. v. Ekstrom, 784 P.2d 320 (Colo.1989), the supreme court held that, where, as here, multiple causes of injury are alleged, a claim is barred by the automobile exclusion unless it arises from nonautomobile related conduct and is independent of any ownership, operation, or use of an automobile.

Here, there was "no independent nonauto-related act which would take the claim outside the seope of the motor vehicle exelusion-ary clause." See Taylor v. American Fire & Casualty Co., 925 P.2d 1279, 1282-83 (Utah Ct.App.1996). Thus, the trial court correctly rejected this claim.

IIL

Plaintiffs also contend the trial court erred in determining that American States had no duty to defend and in entering summary judgment on their breach of contract and bad faith claims. We find no error.

In determining whether an insurer has a duty to defend, courts must examine the allegations in the complaint filed in the underlying action. If those allegations potentially come within policy coverage, or if there is even some doubt, the insurer must defend the claim. Conversely, if there is no coverage, there is no duty to defend. See Constitution Associates v. New Hampshire Insurance Co., 930 P.2d 556 (Colo.1996). An insurer has a duty to defend unless it can show that: (1) the allegations in the complaint against the insured describe only situations that are within the policy exclusions; and (2) there is no factual or legal basis on which the insurer might be held liable to indemnify the insured. See Hecla Mining Co. v. New Hompshire Insurance Co., supra.

The allegations in the complaint here unequivocally show that the accident did not occur on an insured location. Moreover, even if we additionally consider the facts ascertained by American States in its investigation, see TerraMatrix, Inc. v. United States Fire Insurance Co., supra, we reach the same conclusion that a factual basis is lacking. And, because the law in Colorado would allow coverage under this policy only if the accident had occurred on an insured location, no legal basis exists on which American States might be held liable.

Consequently, the trial court correctly held that, absent both a factual and a legal basis for liability, American States had no duty to defend.

The judgment is affirmed.

Judge VOGT and Judge DAILEY concur.


author: Judge DAILEY.

text:
    The PEOPLE of the State of Colorado, Petitioner-Appellee, In the Interest of J.R.T., a Child, and Concerning J.M., Respondent-Appellant.
    No. 00CA1892.
    Colorado Court of Appeals, Div. III.
    March 28, 2002.
    Certiorari Granted Oct. 15, 2002.

      Daniel Kogosvek, County Attorney, Patricia J. Rosales-Chavez, Assistant County Attorney, Pueblo, Colorado, for Petitioner-Ap-pellee.
    Margaret L. Herdeck, Pueblo, Colorado, for Respondent-Appellant.
   Opinion by

Judge DAILEY.

J.M. (father) appeals from an order increasing child support. We reverse and remand for further proceedings.

Father's initial child support obligation was established in April 1995 based upon earnings of $1866 per month. He was ordered to pay $308 per month child support for his child, J.R.T. In March 2000, the People filed a motion to modify child support.

At the time of the June 2000 hearing, father was earning $2167 per month. However, based upon the finding that father had been terminated for misconduct from two different jobs in which he had earned $4510 and $2648 per month, respectively, the trial court determined that father was voluntarily underemployed under § 14-10-115(7)(b)(D, C.R.S.2001. Imputing income to father of $4510 per month, the court ordered him to pay child support of $543 per month beginning April 1, 2000, increasing to $568 per month beginning September 1, 2000.

In two unrelated matters, father had been ordered to pay additional moneys for the support of two other children.

In this appeal, father contends that: (1) a child support order cannot be modified based upon prior income; and (2) in any event, the trial court erred in concluding that he was voluntarily underemployed simply because he lost one or more Iucrative positions through his own fault. We agree with father's second contention.

Regarding his first contention, father directs our attention to that part of § 14-10-122(1)(b), C.R.S.2001, requiring courts to evaluate motions to modify child support in view of "the circumstances of the parties at the time" such motions are filed. Father interprets this language as limiting a court to considering only the actual, not potential, income of the parties.

Father's interpretation, however, is undermined by the preceding text in § 14-10-122(1)(b) requiring "[aJpplication of the child support guideline set forth in section 14-10-115(8) to (16)" to the parties' cireumstances at the time the motion was filed. The applicable guideline includes the requirement that child support be "calculated based on a determination of potential income" where, except in certain cireumstances not pertinent here, "a parent is voluntarily unemployed or underemployed." Section § 14-10-115(7)(b)(D). See In re Marriage of Bregar, 952 P.2d 783, 784-86 (Colo.App.1997) (applying § 14-10-115(7)(b)(I) in context of motion to modify child support).

Regarding father's second contention, whether a parent is voluntarily underemployed is typically a question of fact for the trial court to resolve, and we will not disturb the trial court's determination unless it is clearly erroneous and not supported by the record. See In re Marriage of Zisch, 967 P.2d 199, 203 (Colo.App.1998). However, we use the "clearly erroneous" standard of review only if the trial court has applied the correct legal standard in making its findings of fact. See NAACP v. Duval County School, 273 F.3d 960, 965 (11th Cir.2001). We review de novo whether the trial court applied the correct legal standard in making its findings, see People v. Richardson, 47 P.3d 718 (Colo.App. No. 99CA1230, Feb. 14, 2002)("A determination of the proper legal standard and application of that standard to particular facts is a question of law."), and conclude, in this instance, that the trial court erred.

The trial court determined that "a finding that a parent has been terminated from his employment for his own misconduct supports a determination that the parent is voluntarily underemployed or unemployed."

We acknowledge the attractiveness of such a position. Parents should know that they might not be able to continue paying or, as here, provide even increased child support if they commit acts leading to their separation from their jobs. Under this line of thinking, a child should not be disadvantaged because of a loss of income caused by the fault of the parent. See In re Marriage of Atencio, 47 P.3d 718 (Colo.App. No. 01CA0347, Mar. 28, 2002)(Jones, J., concurring in part and dissenting in part).

But the General Assembly permits imputation of income to a parent for purposes of assessing a child support obligation only when the parent is "voluntarily unemployed or underemployed." Section 14-10, 115(7)(b)(I). To date, no Colorado appellate court decision has addressed the meaning of the phrase "voluntarily unemployed or underemployed" under the cireumstances here.

In determining the meaning of that phrase, we give effect to the statutory terms according to their commonly understood and accepted usage. See National Farmers Union Property & Casualty Co. v. Estate of Mosher, 22 P.3d 531, 533 (Colo.App.2000).

Webster's Third New International Dictionary 2564 (1986) defines "voluntarily" as "in a voluntary manner: of one's own free will," and defines "voluntary" as "produced in or by an act of choice" or "done by design or intention." Black's Law Dictionary 1569 (7th ed.1999) similarly defines the term "voluntarily" as "intentionally; without coercion" and the term "voluntary" as "[dlone by design or intention [voluntary act]."

The common meanings of the terms "voluntarily" and "voluntary" coincide with those used by Colorado appellate courts. See People v. Licea, 918 P2d 1109, 1112 (Colo.1996){consent to search is voluntary if it is "the product of an essentially free and unconstrained choice by its maker")(internal quotation marks omitted); People v. Raffaelli, 647 P.2d 230, 234 (Colo.1982)(statement is "voluntary" if it is the product of a free and unconstrained choice); People v. Gray, 975 P.2d 1124, 1127 (Colo.App.1997)(waiver of Miranda rights is voluntary if it is the product of free and deliberate choice).

Significantly, in § 14-10-115(7)(b)(I), the term "voluntarily" directly modifies the phrase "unemployed or underemployed." The plain, definite, and sensible meaning of the provision, then, is that a parent is "voluntarily unemployed or underemployed" when the parent intentionally chooses of his or her own free will to become unemployed or underemployed. See Allen v. Core Target City Youth Program, 275 Md. 69, 79, 338 A.2d 237, 243 (1975)(as used in unemployment compensation statute, phrase "leaving work voluntarily" meant "claimant, by his or her own choice, intentionally, of his or her own free will, terminated the employment").

Because a person who is involuntarily terminated from his position does not intend or choose to become unemployed, the person is not, for that reason alone, "voluntarily unemployed or underemployed" within the meaning of § 14-10-115(7)(b)(D.

This is so even if, as here, the person's own misconduct led to termination from employment. See Wills v. Jones, 340 Md. 480, 496, 667 A.2d 331, 338-39 (1995)(employee's misconduct insufficient in itself to "deem a subsequent termination of employment 'voluntary' even if the employee's termination was a foreseeable result of the misconduct"); Lee v. Lee, 459 N.W.2d 365, 370 (Minn.Ct.App.1990)("Even assuming the willfulness of relator's on-the-job misconduct ..., we are cited to no authority which permits a tribunal to equate willful misconduct with voluntary termination where there is no evidence that the misconduct was an attempt to induce termination and thereby avoid a child support obligation."); Wilson v. Wilson, 43 S.W.3d 495, 497 (Tenn.Ct.App.2000)("We do not think that any time an obligor parent is fired for misconduct he or she is willfully unemployed under that provision of the child support guidelines. Although there is no requirement that a parent intended to avoid their child support obligations by their actions, we do think that willful or voluntary unemployment or underemployment must result from an intent on the part of the parent to reduce or terminate his or her income.").

For these reasons, we conclude that whether a person lost a job because of willful or knowing misconduct is not determinative of whether the person is voluntarily unemployed or underemployed. What is determinative, however, is the person's subsequent course of action and decision making. A person who has been involuntarily terminated from a position may thereafter become voluntarily unemployed or underemployed by not attempting in good faith to obtain new employment at a comparable salary or by refusing to accept suitable employment offers. See Jensen v. Jensen, 877 S.W.2d 131, 136 (Mo.Ct.App.1994).

Our interpretation of $ is consistent with the application of that provision in In re Marriage of Bregar, supra. In Bregar, another division of this court affirmed a determination that a lawyer-parent was voluntarily underemployed when, after having been fired from his law firm, he started a cattle ranch, something he had wanted to do since he was a child, and something which, ultimately, was financially unsuccessful. The division did not rest its affirmance upon the fact that the parent had been fired, but instead upon the magistrate's implicit determinations that the parent's "efforts in starting a cattle raising operation were not reasonable" and his "testimony concerning . efforts to obtain [other] legal employment was not credible." In re Marriage of Bregar, supra, 952 P.2d at 785. The determination in Bregar thus hinged on the parent's actions after being fired.

Here, we conclude that the trial court erred in determining that father was voluntarily underemployed simply because he was fired as a result of his own misconduct. The trial court should have considered the reasonableness of father's attempts, if any, to obtain comparable employment and pay following his firings. Consequently, we reverse the trial court's order and remand the case for consideration of these matters. The trial court may, in its discretion, receive further evidence.

Accordingly, the order is reversed, and the case is remanded to the trial court to conduct further proceedings consistent with the views expressed in this opinion.

Judge NEY and Judge ROY concur.


text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Demarco Jamaal WHITE, Defendant-Appellant.
    No. 00CA2028.
    Colorado Court of Appeals, Div. V.
    March 28, 2002.
    Certiorari Denied Oct. 7, 2002.

      Ken Salazar, Attorney General, Esteban A. Martinez, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Thor Y. Inouye, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
   Opinion by

Judge NIETO.

Defendant, Demarco Jamaal White, appeals the judgment of conviction entered on jury verdicts finding him guilty of illegal discharge of a firearm and reckless endangerment. We affirm.

The evidence established that defendant emerged from his home, walked up to a parked car, and fired a single gunshot from a semi-automatic handgun into the hood of the car. The bullet pierced the hood within a few inches of the windshield. At the time of the shooting, the car was occupied by a woman and her four children.

I.

Defendant first argues that there is insufficient evidence in the record to support his conviction for illegal discharge of a firearm. Specifically, he contends that the statute defining that offense only proscribes firing a gunshot into the passenger compartment of an automobile. We disagree.

When the sufficiency of evidence is challenged on appeal, the reviewing court must determine whether the evidence, viewed as a whole and in the light most favorable to the prosecution, is sufficient to support a conclusion by a reasonable person that the defendant is guilty of the crimes charged beyond a reasonable doubt. Kogan v. People, 756 P.2d 945, 950 (Colo.1988).

"Any person who knowingly or recklessly discharges a firearm into any dwelling or any other building or occupied structure, or into any motor vehicle occupied by any person, commits the offense of illegal discharge of a firearm." Section 18-12-107.5(1), CRS. 2001.

The phrase "into any motor vehicle" in the second clause of § 18-12-107.5(1) is not defined by statute, and its meaning in the second clause has not been determined in Colorado by appellate decision.

The cardinal rule in construing a statute is to ascertain and give effect to the intent of the General Assembly. In determining legislative intent, we look first to the plain language of the statute. If that language is clear and unambiguous, then we need not resort to rules of statutory construction. People v. Serpa, 992 P.2d 682, 684-85 (Colo.App.1999)

In People v. Serpa, supra, a division of this court applied a plain meaning analysis to the first clause of § 18-12-107.5(1) and conelud-ed that the evidence was sufficient to support the defendant's conviction because it established that he had fired a bullet that struck and scored a shingle on the roof of a dwelling. The division reasoned that firing a bullet "into" the materials of which a house is built violates the statute because there is no requirement in the statute that the bullet pierce the exterior of the building and enter the interior of the house.

We agree with the reasoning of People v. Serpa, supra, and, applying it here, conclude that the meaning of the second clause of § 18-12-107.5(1) is evident from the plain language such that it is unnecessary to resort to rules of statutory construction or refer to the legislative history. The second clause of the statute does not require proof that a bullet actually entered the passenger compartment of the vehicle, and the absence of such a requirement is consistent with the General Assembly's clear intention to criminalize the discharge of a firearm into an occupied vehicle irrespective of whether an occupant is endangered.

Accordingly, we conclude the evidence is sufficient to support defendant's conviction.

IL.

Defendant next argues that the trial court abused its discretion, and thereby violated his right to due process, by admitting evidence of a handgun seized at the scene that was not used in the offense, by allowing a witness to use defendant's nickname when referring to him in her testimony, and by allowing the prosecution to introduce evidence that a police special weapons and tactics (SWAT) team responded to the scene. We are not persuaded.

Evidence is relevant if it has a tendency to render a fact of consequence more or less probable than it would be without such evidence. CRE 401. Relevant evidence, however, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice to the defendant. CRE 403.

Trial courts have considerable discretion concerning the admissibility of evidence and the determination of its relevancy, probative value, and prejudicial impact. To constitute an abuse of discretion, the trial court's evidentiary ruling must be shown to be manifestly arbitrary, unreasonable, or unfair. People v. Moya, 899 P.2d 212, 217 (Colo.App.1994)

A.

Over defendant's objection, the trial court allowed the prosecution to elicit testimony establishing that a fully loaded revolver had been seized from defendant's home after the shooting.

We perceive no abuse of discretion in the trial court's ruling. In opening statement, defense counsel erroneously referred to the weapon used in the incident as a "revolver." Thus, evidence establishing that the revolver discovered near the scene was fully loaded and of a caliber different than the semi-automatic handgun used to shoot the car was relevant to establish that a revolver was not used in the shooting. This evidence of a second handgun was not particularly prejudicial to defendant because, at trial, he did not dispute that he had used a handgun to fire a shot into the hood of the car. Moreover, the revolver was discovered in a house that defendant shared with other persons, and there was no evidence directly connecting him to the weapon. Also, we note that the trial court did not allow the prosecution to admit the revolver into evidence as an exhibit.

B.

Over defendant's objection, the trial court ruled that the child witnesses could, in their testimony, refer to defendant by the nickname by which they knew him, "Big Greasy."

The prosecution's first witness was the children's mother, the woman who was in the car when defendant fired the shot. In her testimony, this witness referred to defendant as "Big Greasy." The trial court instructed the jurors:

The fact that a nickname is used is not evidence that you can consider in determining whether or not the prosecution has proven the charge beyond a reasonable doubt. Nicknames come and go. It's alright (sic) if that's used, but you cannot consider that nickname in any way in deciding the merits of this case.

All of the jurors signified that they understood the court's advisement. Although the children's mother continued to refer to defendant by his nickname, the children did not do so when they testified.

We must presume that the jury followed the court's admonishment, and we are not persuaded by defendant's claim that revelation of this nickname, standing alone, apprised the jury of his gang membership. Nor are we persuaded by defendant's claim that reasonable jurors would, by linking a string of synonyms, interpret the word "preasy" to mean "false carnestness." Accordingly, we perceive no abuse of discretion in the trial court's decision to admit this evidence for the limited purpose of facilitating identification.

C.

Over defendant's objection, the trial court allowed the prosecution to introduce evidence establishing that numerous SWAT team members responded to the scene of the shooting and established a perimeter around defendant's house.

We perceive no abuse of discretion in the trial court's ruling. The evidence of the SWAT team's response was relevant to lay a foundation for the participating officers' testimony concerning their investigation of the crime seene. Because this evidence merely showed a reasonable police response to a shooting in a residential neighborhood, it did not unfairly suggest that defendant was a dangerous individual.

Finally, because we reject defendant's individual claims of error, we necessarily reject his claim of cumulative error. See People v. Haynie, 826 P.2d 371, 379 (Colo.App.1991).

The judgment is affirmed.

Judge DAVIDSON and Judge CASEBOLT concur.


text:
    Michael E. DAUGHERTY, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellee.
    No. 01CA0130.
    Colorado Court of Appeals, Div. V.
    March 28, 2002.

      Thomas J. Tomazin, P.C., Thomas J. To-mazin, Englewood, Colorado, for Plaintiff-Appellant.
    Harris, Karstaedt, Jamison & Powers, P.C., A. Peter Gregory, Heather A. Salg, Englewood, Colorado, for Defendant-Appel-lee.
   Opinion by

Judge NIETO.

Plaintiff, Michael E. Daugherty, appeals the judgment dismissing as time barred his complaint against defendant, Allstate Insurance Company. We affirm in part and reverse in part.

In July 1996, plaintiff's car collided with a vehicle occupied by a couple (the Sauters) after plaintiff ran a red light in an attempt to elude police. Plaintiff had an automobile insurance policy with Allstate at the time of the accident. Allstate informed plaintiff by letter, dated July 30, 1996, that it was denying all coverage for the accident based on a provision in plaintiff's policy that exeluded liability coverage for damages resulting from intentional or criminal acts by the insured.

In December 1996, the Sauters sued plaintiff, alleging claims for injuries they sustained in the accident. The Sauters provided Allstate with a copy of the complaint. No responsive pleadings were filed by or on behalf of plaintiff, and default entered. After a hearing on July 9, 1998 to determine damages, the trial court entered two default judgments against plaintiff.

Plaintiff then assigned to the Sauters all rights and claims he had against Allstate arising out of his automobile insurance policy. See Bashor v. Northland Insurance Co., 29 Colo.App. 81, 480 P.2d 864 (1970), aff'd, 177 Colo. 463, 494 P.2d 1292 (1972).

On July 7, 2000, plaintiff filed a complaint against Alistate alleging claims for breach of contract, bad faith breach of insurance contract, and exemplary damages. Allstate moved for summary judgment, asserting, among other defenses, that plaintiff's claims were barred by the statute of limitations. The trial court concluded that plaintiff's claims were time barred and granted the motion.

Plaintiff contends the trial court erred in granting Allstate's motion for summary judgment because his claims were not barred by the statute of limitations. Specifically, he argues that the court erred in concluding that all of his claims accrued on July 30, 1996, the date of Allstate's letter denying all coverage. We agree that some of plaintiff's claims are not time barred.

An order granting summary judgment is reviewed de novo. Summary judgment is a drastic remedy and should be granted only when the pleadings, affidavits, depositions, or admissions establish that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Hyden v. Farmers Insurance Exchange, 20 P.3d 1222 (Colo.App.2000)

"Generally, before a statute of limitations begins to run, there must be some damage which would entitle a plaintiff to maintain a cause of action. The procedure to be utilized in determining when a cause of action accrues is to ascertain when litigation could first have been successfully maintained." Flatiron Paving Co. v. Great Southwest Fire Insurance Co., 812 P.2d 668, 670 (Colo.App.1990) (citation omitted).

A cause of action for breach of contract accrues on the date the breach is discovered or should have been discovered by the exercise of reasonable diligence. Section 13-80-108(6), C.R.S.2001. "[A] claim for relief in actions arising out of non-performance of contract obligations accrues at the time of the failure to do the thing required to be done under the contract." Goeddel v. Aircraft Finance, Inc., 152 Colo. 419, 424, 382 P.2d 812, 815 (1963).

A claim for bad faith breach of an insurance contract sounds in tort and acerues from the date on which both the injury and its cause are known or should have been known through the exercise of reasonable diligence. Section 13-80-108(1), C.R.S.2001; Harmon v. Fred S. James & Co., 899 P.2d 258 (Colo.

Plaintiff's breach of contract and bad faith breach of insurance contract claims both involve allegations that Allstate breached two separate contractual duties. Plaintiff alleged that Allstate breached its duty to defend him in the action filed by the Sauters and also breached its duty to indemnify him from the liability he incurred as a result of the judgment entered against him in that action. The duty to defend and the duty to indemnify are separate and distinct. Hecla Mining Co. v. New Hampshire Insurance Co., 811 P.2d 1083, 1086 n. 5 (Colo.1991). Thus, these two duties should be viewed separately. See TerraMatrix, Inc. v. United States Fire Insurance Co., 939 P.2d 483 (Colo. Therefore, each claim must be examined regarding each separate alleged breach of duty.

L.

Plaintiff contends that his breach of contract claim did not acerue until the Sauters' judgment became final on July 24, 1998, and therefore, his complaint filed on July 7, 2000, was timely under the three-year statute of limitation, § 13-8-101(1)(a), C.R.S.2001. We conclude that part of this claim was timely filed.

A.

An action for breach of a duty to defend in an insurance contract arises when a third party makes a claim against the insured alleging facts that might fall within the policy's coverage. Hecla Mining Co. v. New Hampshire Insurance Co., supra. Therefore, a duty to defend action arises, at the latest, when the insured has been named in a formal complaint making such allegations. Farmers Insurance Exchange v. American Manufacturers Mutual Insurance Co., 897 P.2d 880 (Colo.App.1995).

Here, plaintiff could have maintained a cause of action against Alistate for breach of contract based on failure to defend at least when the Sauters named him in their complaint. At that time, absent some exclusion in the policy, Allstate would have been obligated to defend him and had already informed him that it would not be providing any coverage regarding the accident.

A contention similar to plaintiff's argument that his claim for breach of contract based on Allstate's duty to defend did not arise until the final judgment was entered against him, was rejected in Farmers Insurance Exchange v. American Manufacturers Mutual Insurance Co., supra. We likewise reject this argument.

Further, plaintiff's reliance on Vanderloop v. Progressive Casualty Insurance Co., 769 F.Supp. 1172 (D.Colo.1991), is misplaced. There, the court concluded that the plaintiff's claim against an insurance company for failure to settle did not acerue until final judgment was entered because it was only then that the plaintiff's injuries became known. That case has no application here because plaintiff's claim is for failure to defend, not for failure to settle.

Accordingly, plaintiff's claim for breach of contract based on the failure to defend accrued, at the latest, in December 1996 when the Sauters filed their complaint against plaintiff and plaintiff was on notice that Allstate was denying all coverage under the policy. Regardless of whether the statute of limitations for this claim expired in two years as Allstate contends or three years as plaintiff contends, his breach of contract claim based on failure to defend was time barred under either scenario because his complaint was not filed until July 2000, more than three and one-half years later.

B.

With respect to plaintiffs claim for breach of contract based on Allstate's failure to indemnify, Flatiron Paving Co. v. Great Southwest Fire Insurance Co., supra, is instructive. There, on facts very similar to this case, a division of this court held that a claim for failure to indemnify does not arise until a judgment is entered against the insured. The division stated:

Although at the time Flatiron brought suit against [the insured, the insured] might have sued Southwest for its failure to defend, that claim is not involved here. Under the statute in existence at the time, [the insured] would have had no basis for suing Southwest for failure to indemnify until [the insured] had incurred damages.
The judgment against [the insured] is dated November 19, 1984. It was not until then that the insured or its assignee could have brought a failure to indemnify action against Southwest.

Flatiron Paving, supra, 812 P.2d at 670.

Here, the judgment against plaintiff was not entered until July 9, 1998. Consequently, plaintiff's claim for indemnification did not accrue until that date. See Hecla Mining Co. v. New Hampshire Insurance Co., supra; Flatiron Paving, supra.

Again, while the parties dispute which statute of limitations is applicable, there is no dispute that plaintiffs claim for breach of contract based on failure to indemnify is not time barred if it was filed within two years from the date it accrued. Because the complaint was filed on July 7, 2000, it was brought within two years of the date of accrual, and it was not barred by the statute of limitations.

Accordingly, plaintiff's claim for breach of contract based on Allstate's failure to indemnify must be reinstated.

IL.

We next address plaintiff's claim for bad faith breach of insurance contract. Plaintiff argues that this claim arose on July 9, 1998, when the judgment was entered against him and therefore, his complaint filed on July 7, 2000 was timely. We agree in part.

A bad faith claim is a tort claim governed by the two-year statute of limitations in § 13-80-1022, C.R.S$.2001. The action accrues when both the nature and extent of the injury and its cause are known or should have been known through the exercise of reasonable diligence. Harmon v. Fred S. James & Co., supra.

A bad faith claim exists independently from the liability imposed by the insurance contract. Flickinger v. Ninth District Production Credit Ass'n, 824 P.2d 19 (Colo.App.1991). "The basis of a bad faith claim is the insurer's conduct in handling the claim." Emenyonu v. State Farm Fire & Casualty Co., 885 P.2d 320, 324 (Colo.App.1994)

The basic elements of any tort claim are: (1) the existence of a duty; (2) a breach of that duty; and (8) an injury caused by the breach of duty. Redden v. SCI Colorado Funeral Services Inc., 38 P.3d 75 (Colo.2001); Vanderloop v. Progressive Casualty Insurance Co., supra. The duty at issue in a bad faith breach of insurance contract claim is the insurance company's duty to act in good faith and deal fairly with its insured. Farmers Group, Inc. v. Trimble, 691 P.2d 1138, 1142 (Colo.1984). However, the insurance company is not called upon to perform this duty until some contractual duty imposed by the insurance policy has arisen. While the contractual duty and the duty to act in good faith are separate and distinct duties, they are related, and both must exist simultaneously to create a bad faith claim. "Il]t is the affirmative act of the insurer in unreasonably refusing to pay a claim and failing to act in good faith, and not the condition of nonpayment, that forms the basis for liability in tort." Farmers Group, Inc. v. Trimble, supra, 691 P.2d at 1142.

Here, plaintiff alleged that Allstate acted in bad faith by failing to perform two separate contractual promises: (1) unreasonably refusing to defend him and (2) unreasonably refusing to indemnify him. Because the contractual duty and the unreasonable conduct must exist simultaneously, we must examine the two allegations separately.

A.

As noted above, Allstate's duty to defend plaintiff arose at the latest when he was named in the action filed by the Sauters. At that time, plaintiff knew the nature and extent of whatever injury he suffered as a result of the alleged bad faith conduct of Allstate in refusing to defend him. He also knew the cause of that injury, namely, Allstate's allegedly unreasonable refusal to defend him. Therefore, plaintiffs bad faith claim based on Allstate's duty to defend had to be filed within two years after the Sauters' case was filed in December 1996. The claim was not filed until July 7, 2000, and therefore, the trial court correctly determined that this part of plaintiff's bad faith claim was barred by the statute of limitations.

B.

Allstate's duty to indemnify arose, as explained above, when the Sauters obtained a judgment against plaintiff on July 9, 1998. At that time plaintiff knew the nature and extent of whatever injuries he suffered as a result of Allstate's alleged bad faith conduct in refusing to indemnify him. He also knew that Allstate's allegedly unreasonable refusal to indemnify him was the cause of those injuries.

Plaintiff could not have asserted a bad faith claim based on failure to indemnify prior to the entry of the Sauters' judgment because before that time Allstate had no duty to indemnify him, and therefore, it could not have acted unreasonably in refusing to indemnify him. Thus, this part of plaintiff's bad faith claim had to be filed within two years following the entry of judgment against him on July 9, 1998. The claim was filed on July 7, 2000, and thus was timely.

Accordingly, plaintiff's claim for bad faith breach of insurance contract based on the duty to indemnify must be reinstated.

Because we have determined that this portion of plaintiffs bad faith claim was filed within two years after it accrued, and that the portion of the bad faith claim based on the duty to defend accrued more than three years before the case was filed, we need not consider plaintiff's claim that a three-year statute of limitations applied.

The judgment is affirmed to the extent it dismissed the parts of plaintiff's claims that were based on the duty to defend. The judgment is reversed to the extent it dismissed the parts of plaintiffs claims that were based on the duty to indemnify, and the case is remanded with directions to reinstate those parts of the claims, as well as plaintiff's claim for exemplary damages.

Judge DAVIDSON and Judge CASEBOLT concur.


text:
    Brian F. FAZIO, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a mutual company, Defendant-Appellee.
    No. 01CA0601.
    Colorado Court of Appeals, Div. I.
    March 28, 2002.

      John A. Meininger, Denver, Colorado, for Plaintiff-Appellant.
    Lambdin & Chaney, LLP, Suzanne Lamb-din, Stephanie A. Montague, Englewood, Colorado, for Defendant-Appellee.
   Opinion by

Judge METZGER.

Plaintiff, Brian F. Fazio, appeals the summary judgment entered in favor of defendant, State Farm Mutual Automobile Insurance Company. We affirm.

Plaintiff was severely injured on June 28, 1996, when the motorcycle he was operating collided with a deer. Plaintiff's motor vehicle insurance policy with State Farm provided liability coverage for his motorcycle as required by § 10-4-706(1)(a), C.R.8.2001. However, in conformance with § 10-14-7058), C.R.9.2001, the policy did not include personal injury protection (PIP) coverage.

Plaintiff made a claim for PIP benefits, which State Farm denied. Plaintiff then filed this lawsuit alleging, as relevant here, that State Farm had breached the insurance contract. Plaintiff asked the court to exercise its equitable powers to reform the contract to order PIP coverage. The parties filed cross-motions for summary judgment, and the trial court granted summary judgment in favor of State Farm. This appeal followed.

Plaintiff contends the entry of summary judgment in favor of State Farm was error. He argues that, because the relevant version of § 10-4-710(2)(a), C.R.8.2001, clearly and unambiguously requires insurance carriers to offer enhanced optional PIP coverage and because State Farm did not offer him enhanced PIP coverage, he is entitled to reformation of his insurance contract. We disagree.

Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Camacho v. Honda Motor Co., 741 P.2d 1240, 1248-49 (Colo.1987). We review a trial court's grant of summary judgment de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Bd., 901 P.2d 1251, 1256 (Colo.1995).

The interpretation of a statute is a question of law, which we also review de novo. See United Airlines, Inc. v. Industrial Claim Appeals Office, 993 P.2d 1152, 1157 (Colo.2000). When construing a statute, courts must determine and give effect to the intent of the General Assembly. See Walker v. People, 932 P.2d 303 (Colo.1997). To determine intent, we look first to the plain language of the statute. See Vaughan v. McMinn, 945 P.2d 404 (Colo.1997). If we can give full effect to the ordinary meaning of the words used, the statute should be construed as written, because it is presumed the General Assembly meant what it clearly said. See State v. Nieto, 993 P.2d 493, 500 (Colo.2000).

It is presumed the General Assembly intends a just and reasonable result when it enacts a statute. Therefore, a statutory construction that leads to absurd results will not be followed. See City of Ouray v. Olin, 761 P.2d 784, 788 (Colo.1988). When interpreting a statute that is part of a comprehensive legislative scheme, all parts must be given meaning, and the statutory provisions must be construed to further the legislative intent. See Southwest Capital Investments, Inc. v. Pioneer General Insurance Co., 924 P.2d 1205 (Colo.App.1996).

To place plaintiff's argument in context, we will summarize the relevant statutes. Section 10-4-706, C.R.S.2001, establishes mandatory minimums for motor vehicle insurance in Colorado, including liability, property damage, and certain minimum PIP coverage. However, under § 10-4-705(8), coverage for motorcycles is limited to Hability coverage only. Thompson v. Dairyland Insurance Co., 618 P.2d 736 (Colo.App.1980); see also Brucha v. Cruise America, Inc., 53 P.3d 700, 2001 WL 1548720 (Colo.App. No. 01C0A0057, Dec. 6, 2001). See generally Jon R. Schumacher, Not So Fast-Your Client May Have PIP Coverage, and Lots of It, 51 Trial Talk 8 (Feb./Mar.2002)

The version of § 10-4-710(2)(a) in effect at the time of plaintiff's accident provided: "Every insurer shall offer for inclusion in a complying policy, in addition to the coverages described in section 10-4-706, at the option of the named insured [certain types of enhanced PIP coverage)." Colo. Sess. Laws 1992, ch. 219 at 1779.

The plain meaning of this language is that a named insured who has minimum PIP coverage under § 10-4-706 must be offered an opportunity to purchase certain types of enhanced PIP coverage. Conversely, an insurer is not required to offer enhanced PIP coverage to a named insured, such as a mo-toreycle owner like plaintiff, who by virtue of § 10-4-705(8) is not required to have any PIP coverage. A contrary reading would lead to the absurd result of requiring insurers to offer enhanced PIP coverage for mo-toreycles in the absence of any requirement for them to offer even minimum PIP coverage.

This interpretation is also consistent with the overall statutory scheme. In Brennan v. Farmers Alliance Mutual Insurance Co., 961 P.2d 550, 553 (Colo.App.1998), a division of this court addressed the seope of PIP coverage as it pertains to the categories of persons who are eligible for extended coverage:

[In § 10-4-710, extended coverage is to be made available "in addition to the coverage described in § 10-4706." The "types" of extended coverage to be provided are the "types" described in § 10-4-706(1)(b). And, the coverages provided in § 10-4-706(1)(b) apply without distinction to all categories of persons listed in § 10-4-707(1). Thus, by the plain terms of these provisions, §$ 10-4-710 describes an option to purchase coverage, but at higher limits, for the same persons and under the same conditions applicable to mandatory basic PIP coverage. (emphasis added) We conclude that the former version of

§ 10-4-710(2)(a) does not require insurers to offer enhanced PIP coverage for motorcycles. Therefore, the trial court was correct in entering summary judgment in favor of State Farm.

The judgment is affirmed.

Judge ROTHENBERG and Judge KAPELKE concur.