IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Senior District Judge Richard P. Matsch

Civil Action No. 11-cv-02677-RPM

FRED KAFER,

Plaintiff,

v.

ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY,

Defendant. 

 

ORDER DENYING SUMMARY JUDGMENT

 

Fred Kafer seeks underinsured motor vehicle coverage under an insurance policy

purchased from Allstate Fire and Insurance Casualty Insurance Company (Allstate) through an

insurance agent in Cheyenne, Wyoming. The policy excludes such coverage for bodily injury

sustained while the insured person is operating a motor vehicle which is not insured under the

policy.

The plaintiff was injured while operating a motorcycle struck by an automobile driven by

a driver who disregarded a stop sign at an intersection in Aurora, Colorado. The motorcycle was

not an insured vehicle on the policy. 

The policy expressly states as follows:

What Law Will Apply

This policy is issued in accordance with the laws of Wyoming and covers

property or risks principally located in Wyoming. Subject to the following

paragraph, any and all claims or disputes in any way related to this policy shall

be governed by the laws of Wyoming.

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If a covered loss to the auto, a covered auto accident, or any other occurrence

for which coverage applies under this policy happens outside Wyoming, claims or

disputes regarding that covered loss to the auto, covered auto accident, or other

covered occurrence may be governed by the laws of the jurisdiction in which that

covered loss to the auto, covered auto accident or other covered occurrence

happened, only if the laws of that jurisdiction would apply in the absence of a

contractual choice of law provision such as this.

At the times the policy was applied for and issued, Fred Kafer lived in Colorado. If

Colorado law applies to this contract claim, there is coverage despite the exclusion because

Colorado has a very expansive view of the obligation of automobile insurance companies to

protect persons from financial loss caused by financially irresponsible motorists. Apodaca v.

Allstate Ins. Co., 232 P.3d 253, 259 (Colo.Ct.App. 2009). The driver who hit Fred Kafer’s

motorcycle had only $15,000.00 of liability insurance.

Wyoming makes it optional for insurance companies to offer underinsured motorist

coverage.

The plaintiff argues that he thought he was buying a Colorado policy. He had previously

purchased a homeowner’s policy from the same agent for a vacation home in Wyoming. The

agent was authorized to sell insurance in both states.

Under Colorado’s choice of law principles, a choice of law provision in a contract is

enforceable unless it contravenes a strong public policy in Colorado law. That, of course, is the

plaintiff’s position.

The strength of Colorado’s policy of protecting its citizens from losses like that in this

case is strongly expressed both in its statutes and by its highest court. DeHerrera v. Sentry

Insurance Company, 30 P.3d 167 (Colo. 2001).

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The issuing agent did not caution the plaintiff that he was buying a policy governed by

Wyoming law and the second paragraph of the exclusion language of the policy could be

construed to say that Colorado law may be applicable as this collision was an “occurrence” that

happened outside Wyoming.

The exclusion relied on by the defendant is contrary to the public policy of Colorado and

it is therefore

ORDERED that the defendant’s motion for summary judgment is denied.

Dated: June 6th, 2012

BY THE COURT:

s/Richard P. Matsch

________________________________

Richard P. Matsch, Senior District Judge

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