[00:00:00] Speaker 02: Fogel v. Shelter Mutual Insurance Company, No. [00:00:03] Speaker 02: 24-1422. [00:00:04] Speaker 02: Counselor, you may enter your appearance and proceed. [00:00:11] Speaker 04: Good morning, Your Honors. [00:00:12] Speaker 04: Kelly Kafer on behalf of the appellant, Shelter Mutual Insurance Company. [00:00:17] Speaker 04: May it please the Court? [00:00:19] Speaker 04: I'd like to try to reserve three minutes at the end of my argument, if possible. [00:00:25] Speaker 04: This case presents a question of an insurer's obligations under Colorado's auto policy disclosure statute, section 10.3.1117. [00:00:34] Speaker 04: Very simply, the interpretation of a statute advocated by Mr. Fogel and accepted by the district court imposes a disclosure obligation on shelter and other insurers that is clearly beyond what is set forth in 10.3.1117 and would punish them via significant statutory penalties for not complying with a standard that is not actually established by the statute. [00:00:55] Speaker 04: That result would be contrary to fundamental principles of statutory interpretation, as well as basic notions of fairness and equity, and should be rejected by this court. [00:01:05] Speaker 04: The district court, in essence, interpreted 10-3-1117 as requiring auto insurers to disclose any policy naming or insuring the alleged at-fault party, regardless of whether that policy actually or even potentially provided coverage for the loss. [00:01:20] Speaker 00: What's the harm in that when it has to be kept confidential anyway? [00:01:25] Speaker 04: I mean, the harm, Your Honor, is that this is basically a situation where the legislature has imposed its obligation to insurers and says, here's the language we're giving you. [00:01:35] Speaker 04: We're saying you need to close every policy that is or may be relevant. [00:01:38] Speaker 04: Insurers attempt to comply with this in good faith, disclose policies that they reasonably are applicable. [00:01:45] Speaker 04: In this case, it disclosed the policy that did apply to the loss. [00:01:49] Speaker 04: And then come back and say, well, it's actually broader than what you think it is. [00:01:53] Speaker 04: And so now you're subject to, in this case, about a year's worth of penalties plus attorney's fees when you dispute that interpretation. [00:02:01] Speaker 04: So I think the problem is it kind of goes to an issue of notice to insurance companies. [00:02:06] Speaker 04: If you're going to say you need to be disclosing these things, I think you need to make the requirement clear if you're going to also be saying, OK, now you're going to be penalized on the law if you don't do that. [00:02:19] Speaker 03: How should we be? [00:02:21] Speaker 03: I mean, it seems like on the text, it's really about what may be relevant means. [00:02:25] Speaker 03: Do you agree? [00:02:26] Speaker 03: I agree. [00:02:26] Speaker 03: I mean, that's the key point here. [00:02:27] Speaker 03: And what is your analysis of that language? [00:02:35] Speaker 04: I mean, I understand the language is, obviously, there's a dictionary interpretation, but then the problem becomes, OK, so I think the district court's reading of it was something that has a significant and debauchal bearing at the matter at hand, which I don't necessarily disagree. [00:02:47] Speaker 04: That's the dictionary definition. [00:02:50] Speaker 04: The problem becomes, [00:02:51] Speaker 04: What does that mean when it applies to insurance policies? [00:02:54] Speaker 04: And I think you have to look at it in the context of a statute. [00:02:58] Speaker 04: It can't mean every policy, because if it meant every policy, you just don't need that language. [00:03:03] Speaker 04: It could just say, you have to disclose every policy of the insured. [00:03:07] Speaker 04: Obviously, it has to be something less than that. [00:03:09] Speaker 04: So then we think that the logical way to look at that is to say, what applies? [00:03:15] Speaker 04: What does this coverage provided by this policy actually apply to this loss, because that is kind [00:03:21] Speaker 03: You know, obviously the key point with regard to insurance policies is whether or not... So what work is to the claim doing in the statutory text? [00:03:31] Speaker 04: I'm sorry, Your Honor, what was that? [00:03:33] Speaker 03: What work are the words to the claim? [00:03:36] Speaker 03: So it may be relevant to the claim. [00:03:38] Speaker 04: Yeah, I mean, I think that's exactly the issue is every claim is going to be fact-specific and those facts are key in determining whether or not a policy is going to apply to it. [00:03:48] Speaker 04: You know, like this case is one where, you know, the insured had four different policies, each insured a different automobile. [00:03:54] Speaker 04: The fact of which vehicle was involved in the claim was key to determining which policy actually applies to the loss. [00:04:03] Speaker 04: So I think that also goes to the point of saying, like, if this is, it has to be something that takes into consideration the actual terms of the policy, the actual facts of the laws to say what is or may be relevant in this particular instance. [00:04:17] Speaker 02: Counsel, does the statute say anything about who decides whether a policy may be relevant? [00:04:25] Speaker 04: It doesn't expressly, Your Honor. [00:04:26] Speaker 04: But I think the way the statutory scheme works, it's essentially, I think, implicit that it has to be the insurance company. [00:04:33] Speaker 04: I mean, they're the ones who have the disclosure obligation under the statute. [00:04:38] Speaker 04: They're the ones who suffer the consequences if they get it wrong. [00:04:41] Speaker 04: And this is actually something that the district court addressed in oral argument on this in the transcript. [00:04:46] Speaker 04: basically said that looking at the statutory scheme, it appears that if the legislature wanted to impose a kind of turn-all-over approach so that they just have to turn over every policy, they could have done that. [00:04:56] Speaker 04: They could have just said, disclose every policy. [00:04:59] Speaker 04: But they didn't do that. [00:05:00] Speaker 04: So then it puts it in the hands of the insurance company as the disclosing party to make that relevant determination. [00:05:05] Speaker 02: How is that consistent, though, with the legislatively stated policy of transparency? [00:05:15] Speaker 02: In other words, [00:05:16] Speaker 02: Why should it simply be up to the insurance company to decide whether a policy is or may be relevant? [00:05:23] Speaker 02: Isn't it more transparent to broaden that issue? [00:05:29] Speaker 02: have someone other than the insurance company make that determination? [00:05:33] Speaker 04: I mean, always, because the more information you give, I guess there's an argument that's more transparent. [00:05:38] Speaker 04: But I don't think it's to say that the idea of having insurance companies disclose the policies that they reasonably do apply is not transparent. [00:05:46] Speaker 02: I mean, I think this has to be looked at in what- Well, how can they, if they're just making a determination back in the office that this can't be relevant, [00:06:00] Speaker 02: How is the statute enforceable? [00:06:03] Speaker 04: Well, I mean, if you're not just insurance, sorry, claimants are generally going to know if there is some policy that is out there because of things like police reports and there's other tools that are out there in the world to discover if there's an insurance policy. [00:06:17] Speaker 04: So if the insurance company is simply not disclosing any policy, [00:06:21] Speaker 04: There's usually going to be some back and forth with the claimant about why that is. [00:06:25] Speaker 02: In this case, how did Mr. Fogel learn about the other policies? [00:06:30] Speaker 04: He learned about those, my understanding, from the insurance personal counsel. [00:06:33] Speaker 04: So that's the other thing I was going to point to, Your Honor. [00:06:36] Speaker 04: There is provision in the statute for the claimant to get information about what insurance is out there, what insurance providers the alleged tortfeasor has. [00:06:49] Speaker 04: directly from that person, they do have a disclosure obligation as well under the statute. [00:06:54] Speaker 04: It doesn't carry with it the penalties that apply with respect to insurance companies, but there is a disclosure obligation on the insured party themselves as well. [00:07:03] Speaker 02: And what's the test for that? [00:07:04] Speaker 02: Is there maybe relevant? [00:07:06] Speaker 04: No, there's no language about is there maybe relevant. [00:07:09] Speaker 02: So why would they need to disclose the three policies we're talking about here? [00:07:17] Speaker 04: I don't know that they necessarily needed to, but they did. [00:07:19] Speaker 04: I mean, they provided information about the policies. [00:07:21] Speaker 02: No, I understand that. [00:07:22] Speaker 02: I thought I heard you say they needed to. [00:07:24] Speaker 04: No, they need to identify. [00:07:26] Speaker 04: My understanding of the terms of the statute is that they need to identify, I think, each company that provides them with auto. [00:07:32] Speaker 04: It's not worried exactly, but they need to provide. [00:07:34] Speaker 02: On the covered auto, though, right? [00:07:36] Speaker 02: I mean, you're in an accident. [00:07:38] Speaker 02: You trade insurance cards. [00:07:39] Speaker 02: It's the insurance that applies to that car. [00:07:43] Speaker 02: But maybe they have policies on something else. [00:07:47] Speaker 02: disclose all of that? [00:07:49] Speaker 04: I think that's arguable. [00:07:50] Speaker 04: I think the statute is not that clear in regard to disclosure obligation to the insured. [00:07:54] Speaker 04: It says that they have to identify their insurance carriers. [00:07:57] Speaker 02: All right. [00:07:57] Speaker 02: But Mr. Fogel got information on all four policies and asked to look at them. [00:08:06] Speaker 02: And the company only provided the one. [00:08:11] Speaker 04: He had the copy of the one policy, which is identical to the other policies, say, for the declaration pages. [00:08:17] Speaker 02: Yes. [00:08:17] Speaker 02: But he was only provided the one policy. [00:08:19] Speaker 04: Correct, Your Honor. [00:08:20] Speaker 02: Correct. [00:08:20] Speaker 02: And so he just needs to take the company's word for it. [00:08:23] Speaker 02: Is that what you're saying? [00:08:25] Speaker 04: I mean, I think in terms of the disclosure obligation statute, yes. [00:08:28] Speaker 04: I mean, that is the way the statutory scheme is set up, is that the insurance carrier has the obligation to disclose. [00:08:33] Speaker 02: So how did the district court get this wrong? [00:08:36] Speaker 04: Because I think the interpretation is basically that they have to disclose every policy. [00:08:40] Speaker 04: That's not what the statute says. [00:08:41] Speaker 02: That is what the district court said. [00:08:43] Speaker 02: It interpreted is or may be relevant. [00:08:45] Speaker 02: It didn't say every policy. [00:08:48] Speaker 04: But basically, the determination of what is or may be relevant is going to be every policy. [00:08:53] Speaker 03: Well, that's your interpretation. [00:08:54] Speaker 03: It was the named, insured, and the property type, right? [00:08:57] Speaker 03: I mean, there was some limiting principle to what the district court identified. [00:09:01] Speaker 04: Well, the property type is auto, and this statute only applies to auto. [00:09:05] Speaker 04: So realistically, I don't see how the district court ruling is not going to require disclosure of every auto policy that a carrier has issued to that particular person or names that particular person. [00:09:17] Speaker 00: Do you agree that a claimant and an insurer could disagree in good faith and reasonably on whether another policy is relevant to the claim? [00:09:28] Speaker 04: I think there could be a disagreement about that. [00:09:31] Speaker 00: And so how does that not interfere with the ability to settle the case, which is another legislative policy? [00:09:37] Speaker 04: Well, I mean, I think you have to look back to how these things. [00:09:40] Speaker 04: Historically, this disclosure statute obviously only came about a few years ago. [00:09:44] Speaker 04: I can't remember the exact year it was enacted. [00:09:47] Speaker 04: But before that, there was not an obligation to disclose any information. [00:09:50] Speaker 04: And it's very common for claimants to, as part of discussions with insurance carriers or the claimant themselves, or sorry, the at-fault party themselves, [00:10:00] Speaker 04: to require confirmation of what insurance coverage is or isn't out there before they enter any settlement. [00:10:07] Speaker 04: So there's always been tools for people to get information and back and forth with these. [00:10:14] Speaker 04: That predates the statute. [00:10:15] Speaker 04: There could be dialogues between insurance companies. [00:10:19] Speaker 04: Now insurance companies are saying, yeah, I have this policy, but it doesn't apply. [00:10:22] Speaker 04: They're usually not just stonewalling. [00:10:23] Speaker 04: They're going to be giving some explanation of why, because if they give an explanation, they're more likely to be able to either [00:10:29] Speaker 04: you're reaching agreement with that other party about why that coverage doesn't apply. [00:10:33] Speaker 04: Or if there's obviously a disagreement that can't be resolved, it may have to go to litigation. [00:10:38] Speaker 04: But the statute, there's always been ways for people to have communications and get information about these outside of the disclosure statute. [00:10:45] Speaker 04: And the issue with disclosure statutes we're saying is, I understand you can have a debate about what the disclosure obligation should be. [00:10:51] Speaker 04: But this is a statute that not only sets for the disclosure obligation, but also imposes very significant penalties on insurance companies for not [00:10:59] Speaker 04: complying with what that disclosure obligation is. [00:11:02] Speaker 04: And what we're saying is the statute clearly indicates that it should not be just every policy, that there has to be some limiting factor here using the is or maybe relevant language. [00:11:13] Speaker 00: Is that solved by this court's opinion affirming if the court were to affirm the district court? [00:11:19] Speaker 00: Now insurers, no. [00:11:20] Speaker 00: We need to give up all the auto policies where you're an insurer. [00:11:24] Speaker 04: I mean, it would certainly create some clarity going forward, but the problem is that I think it's not fair to insurance companies that are left in this vacuum of the last few years, you know, incurring liability for not disclosing policies they had no reason to think should be disclosed because they just didn't apply the law. [00:11:39] Speaker 04: I mean, there's never been a dispute in this case. [00:11:42] Speaker 04: about these policies simply didn't apply. [00:11:45] Speaker 04: I mean, obviously, if there was, I can understand, if there was a close question or some dispute on the facts about whether or not a policy applies, I think insurance companies should disclose it. [00:11:52] Speaker 04: If there's any question about, you know, if there's some plausible way this policy could apply or some dispute about facts about whether it applies, you know, they didn't need to be disclosing it. [00:12:02] Speaker 03: You say that it might apply, and what is the data point for making that determination? [00:12:10] Speaker 03: I mean, the statute tells us that it is, [00:12:12] Speaker 03: has to be relevant to the claim? [00:12:13] Speaker 03: And I think I asked this question already, but I want to have a really clear understanding of what your position is on what makes something relevant to the claim. [00:12:22] Speaker 04: I mean, the problem with that is it's going to be a fact-specific determination. [00:12:26] Speaker 04: They're going to have to look at the terms of coverage in relation to the facts. [00:12:33] Speaker 04: And if there's any dispute about the facts or the terms of coverage, again, I think that you have to err towards disclosure. [00:12:38] Speaker 04: But if there is certainty like there was in this case where this policy only applies to these autos, these policies don't apply because it's this auto, there was no kind of disputes of facts where there would be a question. [00:12:51] Speaker 04: So if it's a clear case like this, I think that the statute doesn't contemplate disclosure. [00:12:56] Speaker 04: But if there is any sort of factual dispute or [00:12:59] Speaker 04: plausible way that the policy could come into play then they need to err on the side of disclosure and you know that would be they would be incentivized to do so because of the penalties that are imposed if they don't. [00:13:09] Speaker 02: Could I, we haven't talked about damages and I'm interested in whether you view the statute on damages as answering the question whether to award damages is based on a request for the policies or based on how many policies are requested. [00:13:29] Speaker 04: I think it has to be based on, you know, this is one particular claimant making requests for policies. [00:13:34] Speaker 04: Any and all policies that are subject to the disclosure of the statute have to be applied, and the most that can be awarded is $100 a day. [00:13:40] Speaker 04: I don't see how you can read the statute to impose more than that. [00:13:43] Speaker 04: I mean, if they wanted to do that, they could easily have included language to say, [00:13:48] Speaker 04: You're incurring a penalty of $100 a day per policy, per violation, whatever the term. [00:13:53] Speaker 02: How do you answer, though, the fact that the statute uses the word policy in the singular? [00:14:00] Speaker 02: So if an insurer is asked to produce multiple policies, why wouldn't its failure to do so constitute multiple violations? [00:14:10] Speaker 04: I'm sorry, say that again, Your Honor. [00:14:11] Speaker 04: If it's asked to request multiple policies? [00:14:14] Speaker 02: Yeah, because the statute refers to policy in the singular. [00:14:17] Speaker 02: So Mr. Fogel asks for four policies. [00:14:22] Speaker 04: Correct. [00:14:23] Speaker 02: And three aren't produced. [00:14:26] Speaker 02: Why doesn't the singular policy mean that there are three violations? [00:14:31] Speaker 04: Because the obligation is to disclose all policies that apply, not just the policy request. [00:14:37] Speaker 04: I mean, the obligation is to disclose each and every policy that is or may be relevant to the claim. [00:14:44] Speaker 04: So I think it already assumes that the obligation is to disclose [00:14:47] Speaker 04: one or more policies that apply, you know, for instance, if there is an umbrella policy or something like that. [00:14:52] Speaker 02: Does it say that? [00:14:52] Speaker 02: Does the statute say one or more? [00:14:53] Speaker 04: Yes, it has language that says, you know, with regard to each policy of insurance that is or may be relevant, that that's the disclosure obligation. [00:15:01] Speaker 04: I'm sorry, Your Honors, I'm out of time. [00:15:03] Speaker 04: I try to finish answering your question. [00:15:05] Speaker 04: But despite the fact that [00:15:07] Speaker 02: Why don't you just wrap it up and we'll be fine? [00:15:10] Speaker 04: Sure. [00:15:10] Speaker 04: Yeah. [00:15:10] Speaker 04: Basically, because it does contemplate disclosure of more than one policy already, I don't think you can read it to say that it also is going to impose a separate penalty with regard to each policy without specific language to that effect. [00:15:23] Speaker 02: Thank you, counsel. [00:15:24] Speaker 04: Thank you, your honor. [00:15:34] Speaker 01: May it please the court, I'm Nelson Boyle here for Carl Fogel. [00:15:41] Speaker 01: So I would like to address a couple of things that were just said. [00:15:47] Speaker 01: First, that there's always been ways to find out what coverage exists, I think my opposing counsel said. [00:16:02] Speaker 01: The legislature accepted that as true. [00:16:04] Speaker 01: They wouldn't have adopted the statute. [00:16:07] Speaker 01: The court can't assume that the statute was unnecessary. [00:16:11] Speaker 01: Also, I think I heard that certainly if there was some dispute over which policy applies, all of them would have to be disclosed completely. [00:16:23] Speaker 01: In the record, excuse me. [00:16:31] Speaker 02: Sorry about that. [00:16:33] Speaker 02: Council, that actually is a jumping off point for a question I wanted to ask you. [00:16:39] Speaker 02: I'm thinking of the timing issue here. [00:16:44] Speaker 02: I mean, we know, I take it in hindsight, that the three policies at issue weren't relevant, correct? [00:16:53] Speaker 01: That's correct. [00:16:54] Speaker 02: Okay. [00:16:55] Speaker 02: So if they weren't relevant, then [00:17:00] Speaker 02: Why is there a violation of the statute? [00:17:03] Speaker 01: So two reasons. [00:17:04] Speaker 01: And I'll get to the statutory language second. [00:17:09] Speaker 01: But first, in the oral argument, plaintiff's counsel was asked, how come this thing settled? [00:17:25] Speaker 01: It was clear that it settled because there was personal counsel involved, and this is on pages 657 to 658 of the record, volume three, where Mr. Smith, Mr. Fogel's counsel, explained that he had assurances from Mr. Catalano [00:17:44] Speaker 01: the at-fault driver's personal counsel that he still owned the vehicle on the one policy. [00:17:53] Speaker 01: If he did not still own the vehicle on the one policy, the other three policies would be in play. [00:17:58] Speaker 01: That conversation led to the settlement in November after the July 22 letter that arrived. [00:18:05] Speaker 01: So getting to the language of the statute, my opponents, they seem to read the statute to just say, is relevant, and they leave out or may be relevant. [00:18:22] Speaker 01: And the definition of relevant comes into play there. [00:18:27] Speaker 01: So it is significant and demonstrable bearing on the matter at hand. [00:18:32] Speaker 00: So does relevant mean provides coverage? [00:18:35] Speaker 01: No. [00:18:36] Speaker 01: Relevant means that it could be relevant, it could provide coverage. [00:18:40] Speaker 00: What's the difference between provides coverage and could provide coverage? [00:18:44] Speaker 01: Well, it's a policy that does insure this person but may not apply to this crash. [00:18:54] Speaker 00: And so that's the dividing line? [00:18:56] Speaker 00: If a policy names someone as an insured, additional insured, then you have to provide it. [00:19:03] Speaker 00: Yes, or if it could, if they could be. [00:19:05] Speaker 03: I mean, some policies... But it has to be relevant to the claim. [00:19:08] Speaker 03: I'm sorry to interrupt your answer to Judge Phillips, but could you incorporate that statutory language into your answer? [00:19:15] Speaker 03: You're talking about that your opposing counsel is overlooking what may be relevant means. [00:19:20] Speaker 03: I think everyone is overlooking the to the claim piece of this. [00:19:24] Speaker 03: So how do we understand what may be relevant to the claim means? [00:19:29] Speaker 01: So what may be relevant to the claimant is if there's coverage that may apply because we all know that insurers and insureds sometimes get involved in coverage disputes and this court and the court below and Colorado courts have to decide those disputes where the insurer says, you know, we read the policy to say you don't have coverage to their insured. [00:19:53] Speaker 01: And then the insured says, no, I think I do. [00:19:57] Speaker 01: And then a declaratory action is filed by one or the other. [00:20:00] Speaker 01: And the courts have to decide, what does this language mean? [00:20:03] Speaker 01: We cited some of those in our brief, I think, on page 41. [00:20:06] Speaker 01: Some cases that address that said the insurer got it wrong. [00:20:11] Speaker 02: Could I just back you up? [00:20:14] Speaker 02: Because I think what you just said relates to something that you mentioned a couple of minutes ago, which is if [00:20:24] Speaker 02: If the policy that ended up providing coverage was based on the driver's ownership of the car, then the other three wouldn't provide coverage, correct? [00:20:37] Speaker 01: That's correct. [00:20:39] Speaker 02: So the question is, are the other three maybe relevant in the event that the driver didn't own the car under the first policy? [00:20:52] Speaker 02: Is that what you're saying? [00:20:53] Speaker 01: That's correct. [00:20:54] Speaker 01: And if I could, I'd like to go to the damages portion of the case and address the question about whether it should be one penalty or three, if the court doesn't have further questions on that. [00:21:16] Speaker 03: I actually do have another question on that. [00:21:20] Speaker 03: In the district court, [00:21:22] Speaker 03: The judge pressed you to articulate a workable standard, which I think is a challenging thing to do in this case. [00:21:29] Speaker 03: And I believe you said that it's something like if the tortfeasor is named on an insurance policy, then the policy is relevant, because even if it doesn't provide coverage, he has to understand that it doesn't provide coverage. [00:21:43] Speaker 03: And I was thinking about that, and I don't understand how that's different than saying, well, disclose all the policies. [00:21:52] Speaker 03: And the statute doesn't say disclose all the policy. [00:21:54] Speaker 03: This has some limiting principle to it. [00:21:56] Speaker 03: So what is the workable standard that our court should find exists under this statute if we were to endorse your position? [00:22:07] Speaker 01: OK, so to clarify that, that's where do you draw the line before all? [00:22:13] Speaker 03: Well, what's the workable standard here that doesn't read the statute to disclose everything? [00:22:20] Speaker 03: Because it doesn't say that. [00:22:22] Speaker 03: And in fact, it seems that Colorado's statute's quite different from many statutes in other states that do require explicitly in the text broader disclosure. [00:22:33] Speaker 03: So what's the workable standard that endorses your position but doesn't read the statute contrary to its plain text to disclose all the policies? [00:22:43] Speaker 03: Because it doesn't say that. [00:22:46] Speaker 01: So that is a difficult question, obviously. [00:22:51] Speaker 01: I think that because it says may be relevant, it has to be every policy that may be relevant. [00:22:58] Speaker 01: It doesn't say all. [00:22:59] Speaker 01: I just don't have in my head an example of something that wouldn't fall under maybe were relevant. [00:23:07] Speaker 01: It's pretty expansive, as the district court recognized. [00:23:10] Speaker 01: I mean, the word relevant is expansive, but then may be relevant. [00:23:13] Speaker 01: is even more expansive. [00:23:15] Speaker 03: So the claim may be relevant to the claim. [00:23:17] Speaker 03: But if I understand your position, it's that the expansive, and I don't want to put words in your mouth, I'm just trying to understand your argument, that the expansive nature of that language may be relevant to the claim essentially should be read as everything, all policies. [00:23:34] Speaker 01: Essentially, yes, for the facts in this case. [00:23:37] Speaker 01: I mean, I imagine there may be a case out there, something out there that [00:23:44] Speaker 01: wouldn't fall within may be relevant. [00:23:47] Speaker 01: But I'm not sure what that is. [00:23:49] Speaker 00: What about non-automotive policies? [00:23:52] Speaker 00: They wouldn't be relevant. [00:23:53] Speaker 01: They would not. [00:23:54] Speaker 01: But the statute's pretty clear that it's only automotive policies. [00:23:57] Speaker 01: So I think it already carves those out. [00:24:03] Speaker 01: I guess if you had a situation where maybe somebody was insured [00:24:13] Speaker 01: under the household insured language in a policy and, you know, say, you know, they're the child of someone and then they move out to an apartment. [00:24:24] Speaker 01: And so they're now in an apartment, but their name is on the policy still because, you know, they've gone off to college or whatever, well, not to college. [00:24:31] Speaker 01: They moved out on their own and they are no longer within the household. [00:24:37] Speaker 01: There would be a household exclusion there. [00:24:40] Speaker 01: But again, I think they'd still have to disclose it because the claimant wouldn't know that. [00:24:45] Speaker 03: What about a policy purchased after the accident? [00:24:48] Speaker 01: I'm sorry? [00:24:49] Speaker 03: What about a policy purchased after the accident? [00:24:53] Speaker 01: Yeah, a policy purchased after the accident. [00:24:56] Speaker 01: I think if they disclosed the information that it was purchased after the accident, they wouldn't have to disclose the policy. [00:25:06] Speaker 01: Because they'd be able to show, there is a policy out there, but it was purchased after the accident. [00:25:11] Speaker 01: Here's the information from our system about when they purchased it. [00:25:14] Speaker 01: I think that would, you know, why would they have to disclose the actual policy then? [00:25:19] Speaker 01: That's maybe an example of where it's not every. [00:25:24] Speaker 01: Because, you know, but I'm not sure on that. [00:25:33] Speaker 01: I did also want to point out that the, [00:25:36] Speaker 01: The brief from the other side takes umbrage with considering the legislative purpose in section 10.3.1101 of the Colorado revised statutes. [00:25:47] Speaker 01: But in one of their briefs at pages 426 to 427 of volume two, they invited the court to look at that. [00:25:58] Speaker 01: And that was in the supplemental brief when the court asked for, you know, what does this language mean, you know, for them to address that. [00:26:07] Speaker 01: So it seems like they invited the court to do what they claim was error to consider the legislative purpose that's stated in the statutory scheme. [00:26:30] Speaker 01: On the question about damages, [00:26:32] Speaker 01: You know, we believe that because it requires the disclosure of more than one policy, if there is more than one policy, and if each one is withheld, it supports the legislative purpose of transparency to have a separate penalty for each one. [00:26:50] Speaker 01: Also, there's a separate claim for each one in the lawsuit, and there should be damages for each claim. [00:26:58] Speaker 01: But it's... Let me jump in there. [00:27:02] Speaker 02: I'm not sure I follow that. [00:27:03] Speaker 02: I guess we've quoted the words the claim a few times this morning. [00:27:11] Speaker 02: I think it comes into play again here because the request for the policies concerned the claim regarding this accident. [00:27:23] Speaker 02: Yes. [00:27:23] Speaker 02: And if that's the way it works, why doesn't that show [00:27:27] Speaker 02: that any failure to produce them was a singular violation. [00:27:33] Speaker 02: In other words, you ask for it. [00:27:35] Speaker 02: You say, OK, we've had this accident. [00:27:37] Speaker 02: We're going to make this claim. [00:27:39] Speaker 02: Give us all the policies that are maybe relevant to the claim. [00:27:45] Speaker 02: Then why isn't failure to do so a single violation? [00:27:51] Speaker 02: You only get a one-time penalty for that. [00:27:57] Speaker 01: Well, if the insurers, say, here had withheld these three liability policies, but there was also an umbrella policy that they never disclosed at all and nobody ever knew about. [00:28:08] Speaker 01: And then in the course of the lawsuit on this, there was another policy that was discovered that also could be relevant. [00:28:16] Speaker 01: That would be, you know, I mean, so if they withheld the first three and then, you know, during the lawsuit you find out there's a fourth one, I mean, that would be a separate [00:28:26] Speaker 01: incident because they didn't even identify it. [00:28:33] Speaker 02: Well, maybe, but still, the request was made. [00:28:37] Speaker 02: It was made in one day, give us all the policies, and they held back the three. [00:28:46] Speaker 02: I mean, the situation you're describing isn't what happened. [00:28:50] Speaker 01: So in a situation, you know, these are $100,000 policies, but if you had, say, three umbrella policies, so it was $3 million in coverage, right, you know, the insurer would be incentivized to, even though there's a penalty, if the penalty is only going to be $30,000 or, you know, $100 a day for a year, you know, so $36,000, it would incentivize [00:29:16] Speaker 01: playing the game of, do we just withhold these and see if anybody ever finds out about these umbrella policies? [00:29:22] Speaker 01: Because if somebody was catastrophically injured and they all applied, they'd have to pay $3 million. [00:29:28] Speaker 01: By having them have to pay for each policy that they don't disclose, it supports the statutory purpose. [00:29:37] Speaker 01: I'll also say that the statute is silent on whether it's a course of conduct or each policy. [00:29:45] Speaker 01: Each policy supports the statutory purpose. [00:29:49] Speaker 01: And the examples of other statutes that the Colorado legislature had done this in, like the consumer protection one, there's a whole separate section of the statutes because they have about 100 different types of violations. [00:30:03] Speaker 01: Here there's only one type of violation. [00:30:06] Speaker 01: So then they have that. [00:30:07] Speaker 01: And then the other one with the wage claim, if you read the sections together there, first there's an exception. [00:30:15] Speaker 01: And then they point to, Shelter points to an exception to the exception to say that, you know, they used specific wording to say that there was a per claim penalty available. [00:30:32] Speaker 01: But first they say that they are available, then they say they're not in a certain situation, then they say there's an exception to that. [00:30:44] Speaker 02: Thank you, counsel. [00:30:47] Speaker 02: I believe we've exhausted the time for this argument, so we will consider the case submitted. [00:30:54] Speaker 02: Council, or excuse, thank you for your arguments this morning.