Chapter 21 - § 21.6 • ACCRUAL OF CLAIM FOR FAILURE TO OFFER ENHANCED PIP BENEFITS

• Jurisdiction: Colorado

§ 21.6 • ACCRUAL OF CLAIM FOR FAILURE TO OFFER ENHANCED PIP BENEFITS

Wagner v. Grange Insurance Association, 166 P.3d 304 (Colo. App. 2007), involved claims for reformation of an auto insurance policy, breach of contract, and bad faith, arising from the insurer's alleged failure to offer enhanced PIP benefits. The plaintiff, Wagner, was involved in an auto accident on July 27, 1993, when he was driving a vehicle insured by Grange under a policy issued to his mother. The policy contained basic PIP benefits. At the time the policy was issued, former C.R.S. § 10-4-710(2)(a) required insurers to offer enhanced PIP benefits.

In 2005, Wagner brought suit against Grange, asserting that it had breached the contract and acted in bad faith by failing to offer enhanced PIP benefits when it sold the policy to his mother. Grange moved to dismiss the complaint pursuant to C.R.C.P. 12(b)(5), arguing that Wagner's claims were untimely under the three-year statute of limitations for claims under the No-Fault Act and under the two-year statute of limitations for bad faith claims. The trial court granted the motion to dismiss, concluding that Wagner's claims were untimely because they accrued on the date of the accident.

Wagner appealed, arguing that the trial court should not have considered the statute of limitations defense because it was raised in a motion to dismiss. Wagner also argued that there was a genuine issue of material fact regarding the accrual of his claims, thereby precluding summary judgment. The court of appeals agreed with this latter argument and reversed the summary judgment.

The court of appeals recognized that, generally, Colorado courts have not allowed defendants to raise...