Progressive Direct Insurance Company, Petitioner: v. Andrew Ortiz

── Progressive Direct Insurance Company, Petitioner: v. Andrew Ortiz ── Court: Supreme Court of Colorado Date: June 01, 2026 Category: General 1 2026 CO 40 Progressive Direct Insurance Company, Petitioner: v. Andrew Ortiz, Respondent No. 24SC440 Supreme Court of Colorado, En Banc June 1, 2026 2          The supreme court granted certiorari to review whether it should reconsider its decision in State Fann Mutual Automobile Insurance Co. v. Brekke, 105 P.3d 177 (Colo. 2004). There, the supreme court held that to provide a court with the information necessary to determine a uninsured motorist ("UM") insurer's level of participation in tort litigation between its insured and an uninsured motorist, a UM insurer must plead with particularity the legitimate defenses it intends to raise as soon as practicable. Id. at 192 &n.20,193.          With one minor clarification regarding C.R.C.P. 8 and C.R.C.P. 9(b), the supreme court declines to overrule Brekke. Instead, the court concludes that Brekke's guiding principles stand. To provide a court with the information needed to timely determine a UM insurer's appropriate level of participation in tort litigation between its insured and an uninsured motorist, an insurer must —as soon as practicable—plead its legitimate defenses specifically. Rule 9(b) does not apply unless a UM insurer asserts fraud or mistake as a legitimate defense.          Because the UM insurer in this case failed to meet Brekke's requirements, the supreme court concludes that the district court did not abuse its discretion in barring the UM insurer from contesting liability in the tort litigation between its insured and an uninsured motorist. The district court appropriately balanced the interests of the parties and provided the insurer with the opportunity for a fair hearing on its legitimate defenses. Accordingly, the supreme court affirms the judgment of the court of appeals. 3           Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 23CA292           Attorneys for Petitioner: Montgomery|Amatuzio Brendan O. Powers Denver, Colorado           Attorneys for Respondent: Western Slope Law Nelson A. Waneka Glenwood Springs, Colorado Galperin and Associates Jacob Galperin Rebecca Bilello Denver, Colorado 4           Attorneys for Amicus Curiae Colorado Trial Lawyers Association: Fiedler Trial Lawyers James R. Anderson Denver, Colorado Ramos Law Spencer B. Aitken Centennial, Colorado           JUSTICE BERKENKOTTER delivered the Opinion of the Court, in which CHIEF JUSTICE MARQUEZ, JUSTICE BOATRIGHT, JUSTICE HOOD, JUSTICE GABRIEL, JUSTICE SAMOUR, and JUSTICE BLANCO joined. 5           OPINION           BERKENKOTTER, JUSTICE          ¶1 The General Assembly enacted the uninsured motorist ("UM")[1] statute, section 10-4-609, C.R.S. (2025), to mandate uninsured and underinsured motorist coverage as part of automobile liability policies in Colorado, providing protection for insured persons who suffer bodily injury or death caused by uninsured or underinsured motorists. See id. The statute establishes minimum coverage requirements, defines the scope of protection, and specifies how coverage amounts are calculated and applied. Id. Its purpose is to provide a mechanism through which an insured motorist may "purchase insurance coverage against loss caused by the negligent conduct of a financially irresponsible motorist." Aetna Cas. &Sur. Co. v. McMichael, 906 P.2d 92, 98 (Colo. 1995); see also DeHerrera v. Sentry Ins. Co., 30 P.3d 167, 174 (Colo. 2001).          ¶2 Uninsured motorist coverage shall be in addition to any legal liability coverage and shall cover the difference, if any, between the amount of the limits of any legal liability coverage and the amount of the damages sustained, excluding exemplary damages, up to the maximum amount of the coverage obtained pursuant to this section. 6 § 10-4-609(1)(c). This gap-filling function ensures that insureds receive compensation up