APPENDIX B

• Jurisdiction: Colorado

APPENDIX B

Editor's note: This Appendix B is identical to Chapter 3 in the prior edition of this book. Due to renumbering of the chapters, some internal citations in this appendix no longer referred to the correct chapter and section. These internal citations are indicated in brackets (i.e., [§ 2.4.1]) and have been updated to refer to sections in current Chapters 1 through 4. Any internal citation in this appendix that does not appear in brackets has not been updated and refers to material in this appendix.

Chapter 3 PIP COVERAGE ISSUES

SYNOPSIS

§ 3.1 GENERAL PRINCIPLES

§ 3.2 SCOPE OF MEDICAL COVERAGE UNDER C.R.S. § 10-4-706(1)(b)

§ 3.2.1—Injury As Condition Precedent To Coverage
§ 3.2.2—Mileage Expenses Covered As Medical Benefit

§ 3.3 CAUSATION ISSUES UNDER C.R.S. § 10-4-706

§ 3.3.1—Causal Connection Existed Where Insured Struck By Awning On Vehicle Used As Refreshment Stand
§ 3.3.2—Causal Connection Existed Where Injuries Occurred While Maintenance Work Was Being Performed On Vehicle
§ 3.3.3—Causal Connection Existed Where Injuries Occurred While Camper Shell Was Being Installed On Pickup
§ 3.3.4—Causal Connection Did Not Exist Where Injury Occurred Away From Vehicle
§ 3.3.5—Causal Connection May Exist For Injuries Due To Shooting
§ 3.3.6—Causal Connection May Exist For Injuries Due To Assault
§ 3.3.7—Applicability Of "Thin Skull" Rule To PIP Claims
§ 3.3.8—Injuries Sustained By Insured During Sexual Assault Which Occurred In Her Car Did Not Arise Out Of The Use Of Her Car, And Insurer Was Not Obligated To Provide PIP or UM Coverage

§ 3.4 REHABILITATION COVERAGE UNDER C.R.S. § 10-4-706(1)(c)

§ 3.4.1—Rehabilitation Coverage Does Not Include Subsistence Allowance
§ 3.4.2—Job Search And Placement Services Are Not A Covered Rehabilitation Benefit
§ 3.4.3—Insured's Status As A Student Not Automatic Disqualification For Occupational Retraining Benefits
§ 3.4.4—Insured May Be Entitled To Payment For Purchase Of Hot Tub As A Rehabilitative Benefit
§ 3.4.5—Rehabilitation Benefits Are Limited As To Both Time And Amount

§ 3.5 WAGE LOSS AND ESSENTIAL SERVICES BENEFITS UNDER C.R.S. § 10-4-706(1)(d)

§ 3.5.1—Eligibility For Wage Loss Benefits Ends After Expiration Of 52 Weeks From Accident
§ 3.5.2—Calculation Of "Gross Income" For Self-Employed Person
§ 3.5.3—Loss Of Specific Amount, Beginning On Specific Date, Is Prerequisite To Recovery Of Wage Loss Benefits
§ 3.5.4—Cost Of Replacement Worker Is A Proper Measure Of Loss Of Gross Income For A Self-Employed Person
§ 3.5.5—Being Employed On Date Of Accident Not A Prerequisite For Recovery Of Wage-Loss Benefits
§ 3.5.6—Wage-Loss Benefits May Be Recoverable Even If Insured Receives Sick Leave From Employer
§ 3.5.7—Actual Expense Not Prerequisite To Coverage For Essential Services

§ 3.6 PERSONS ENTITLED TO PIP COVERAGE UNDER C.R.S. §§ 10-4-707(1)(a) THROUGH (c)

§ 3.6.1—Coverage For Pedestrians Under C.R.S. § 10-4-707(1)(c)

a—Coverage only exists for pedestrian injured by described motor vehicle
b—Person struck by awning of vehicle used as refreshment stand was entitled to PIP benefits as a pedestrian
c—Passenger on motorcycle was not a pedestrian
d—The term "pedestrian" includes all persons who are not riding in or upon a vehicle or who are not in the immediate act of entering into or alighting from a vehicle
e—Motorcyclist, who was struck by another vehicle after being ejected from motorcycle, was a pedestrian
f—For purposes of PIP coverage, an accident involving a pedestrian may arise out of the use of multiple vehicles

§ 3.6.2—PIP Coverage For Motorcyclists

a—Insured injured while driving his own motorcycle not entitled to PIP coverage under C.R.S. § 10-4-707(1)(a)
b—Under C.R.S. § 10-4-707(1)(b), resident relative of named insured was entitled to PIP coverage when he was injured when a pickup truck struck him while he was riding his off-road motorcycle
c—Policy provision excluding PIP coverage for insured who was injured while riding her own motorcycle was valid and enforceable
d—Analysis of PIP coverage for motorcyclists
e—Conclusion

§ 3.6.3—PIP Coverage For Passengers

a—PIP coverage extends to passengers of rented vehicles, even if driven by an unauthorized driver
b—As exception to general rule, "operator's policy" provides coverage to passenger in uninsured vehicle
c—Under C.R.S. § 10-4-707(1)(c), PIP coverage extends only to passengers injured in an accident occuring in Colorado
d—Passenger riding in uninsured vehicle is not entitled to PIP coverage under policy insuring driver
e—Passenger in vehicle driven by driver specifically denied permission to operate vehicle by owner is not entitled to PIP coverage
f—Under "initial permission rule," only passengers who use insured vehicle with knowledge that named insured has prohibited such use are excluded from PIP coverage

§ 3.6.4—PIP Coverage For Resident Relatives

a—Resident relative was not entitled to PIP coverage for injuries sustained while operating owned but uninsured vehicle
b—Resident relative was not entitled to PIP coverage for injuries he sustained while operating his own motorcycle, not actually covered by the No-Fault Act

§ 3.6.5—PIP Coverage Required Under Garage Policy
§ 3.6.6—PIP Coverage For A Named Insured

a—Customer who rents vehicle from self-insured rental company is the "named insured" for purposes of PIP coverage, as well as other coverages

§ 3.6.7—Ownership Of Vehicle Is Relevant To Determination Of PIP Coverage — How Ownership Is Determined When There Is A Conditional Sale Of A Vehicle

§ 3.7 PRIMACY OF PIP COVERAGE UNDER § 10-4-707 — AS GENERAL RULE, COVERAGE APPLICABLE TO VEHICLE OUT OF USE OF WHICH ACCIDENT AROSE IS PRIMARY

§ 3.7.1—Primacy Rules Of C.R.S. § 10-4-707 Are Applicable Only To PIP Coverage
§ 3.7.2—Exception To General Primacy Rule — Operator's Policy Is Primary For PIP Coverage Where Operator Neither Owns Vehicle Nor Is An Employee Of Owner
§ 3.7.3—Exception To General Rule — Where "Ridesharing Arrangement" Is Involved, Each Injured Person Is Afforded Primary PIP Coverage Through His Or Her Own Complying Policy
§ 3.7.4—PIP Coverage Is Primary To Medicare — Interplay Between Medicare And PIP Coverage
§ 3.7.5—Workers' Compensation Coverage Is Primary To PIP Coverage

a—Release of workers' compensation benefits will release claim for PIP benefits as well
b—Language in PIP policy stating that any amount paid was to be reduced by any amount actually provided under workers' compensation law made PIP coverage secondary to workers' compensation coverage

§ 3.8 REMEDIES UNDER C.R.S. § 10-4-708

§ 3.8.1—Recovery Of Attorney Fees

a—Insurer's belief it was acting in good faith does not negate insured's right to recover attorney fees
b—Calculation of "reasonable" attorney fees
c—Attorney fees must be apportioned between claims under C.R.S. § 10-4-708 and other claims
d—Finding that PIP benefits were not paid when due is not prerequisite to an award of attorney fees under C.R.S. § 10-4-708(1.7)

§ 3.8.2—Treble Damages For Willful And Wanton Denial Or Delay Of Payment

a—Claim for willful and wanton denial of PIP benefits must be proved by preponderance of the evidence
b—Insurance company's payment of disputed benefits before insured files lawsuit divests insured of right to recover damages, attorney fees, or statutory interest, but insured may still recover treble damages for willful and wanton failure to pay benefits in a timely manner
c—Insured who proves insurer willfully and wantonly delayed or denied payment of PIP benefits is not entitled to recover treble damages based upon medical expenses that were not incurred due to insurer's wrongful refusal to pay for treatment
d—Treble damages provision of C.R.S. § 10-4-708 does not preempt common law tort claims arising from the same conduct
e—Definition of willful and wanton failure to pay benefits under C.R.S. § 10-4-708(1.5)(d) — Claims for willful and wanton denial of PIP benefits and insurance bad faith are not identical, as willful and wanton denial of benefits is merely a "subset" of bad faith
f—Arbitration panel's finding that insurer did not willfully and wantonly deny PIP benefits may bar bad faith claim

g—A finding that insurer was guilty of outrageous conduct necessarily means its conduct was willful and wanton — Establishing a claim for willful and wanton conduct requires proof that the insurer acted without justification and in disregard of the insured's rights
h—In action to recover unpaid PIP benefits, award of treble damages includes unpaid benefits and is not in addition to unpaid benefits — Insurer's conduct during course of litigation may be considered by trial court to increase amount of punitive damages awarded by jury
i—No-Fault Act's treble damages remedy for willful and wanton failure to pay PIP benefits does not preempt common law claim for recovery of non-economic damages for willful and wanton breach of contract

§ 3.8.3—Timeliness Of Payment — 30-Day Time Period For Payment Of Benefits Under C.R.S. § 10-4-708(1) Does Not Begin To Run Until Insurer Receives Reasonable Proof That The Expenses Incurred Were Reasonable, Necessary, And Causally Related To The Accident
§ 3.8.4—Recovery Of 18 Percent Interest On PIP Benefits — Post-Judgment Interest Rate On PIP benefits Awarded As Damages Is 8 Percent
§ 3.8.5—Insured May Recover Interest, Attorney Fees, And Treble Damages Pursuant To C.R.S. § 10-4-708 Only Where PIP Carrier Fails To Pay Minimum Coverages Required By No-Fault Act
§ 3.8.6—Mandatory Arbitration Under The Former Version Of C.R.S. § 10-4-708(1.5)

a—Constitutionality of former statute requiring mandatory arbitration of disputes over PIP benefits

§ 3.8.7—In An Action To Recover Overdue PIP Benefits, Insurer May Be Required To Pay 18 Percent Statutory Interest Under C.R.S. § 10-4-708(1.8) To Insured's Assignee

§ 3.9 PENALTY PROVISION OF C.R.S. § 10-4-708.5 — DUTY OF PHYSICIAN TO NOTIFY PIP CARRIER OF TREATMENT — NOTICE REQUIREMENT INAPPLICABLE TO HOSPITALS

§ 3.10 COORDINATION OF BENEFITS UNDER C.R.S. §...