Opinion
No. 71-112
Decided March 21, 1972. Rehearing denied April 4, 1972.
Liability insurer brought action seeking compensation from another liability insurer for expenses arising out of settlement of personal injury action. From dismissal of action, plaintiff appealed.
Affirmed
1. INSURANCE — Motor Vehicle Financial Responsibility Act — Not Imply — Omnibus Clause — General Liability Policy. Since general liability policy issued by defendant had not been certified to Director of Revenue as permitted, but not required, by Motor Vehicle Financial Responsibility Act and since that Act does not require insurance, the Act does not imply, by operation of law, the existence of an omnibus clause in the policy.
2. General Liability Policy — No Omnibus Clause — Action — Expenses of Settlement — Properly Dismissed. Since general liability policy issued by defendant did not contain omnibus clause nor a loading;and unloading clause and since no omnibus clause may be implied by law, the policy did not cover plaintiff's insureds who were allegedly liable for injuries to employee of defendant's insured, and thus action for expenses of settlement of injured employee's negligence action was properly dismissed.
Appeal from the District Court of the City and County of Denver, Honorable Saul Pinchick, Judge.
Zarlengo, Mott and Carlin, Reed L. Winbourn, for plaintiff-appellant.
Paul D. Renner, for defendant-appellee.
A liability insurer here appeals from a dismissal of its cause of action seeking compensation from another liability insurer for expenses arising out of settlement of a personal injury action.
While employed as a truck driver for Buckingham Freight Lines, one William J. Roach was injured as he helped Tommy L. Hicks, an employee of Denver Equipment Company, load a steel beam onto the trailer of the semitrailer truck Roach was driving. Roach, claiming that Hicks negligently caused his injuries, filed a civil action against Hicks and Denver Equipment. Counsel for Denver Equipment made a written demand on Buckingham and its insurer, Transport Indemnity Company, to assume the defense of the Roach action on the basis that Buckingham was the company doing the loading when the injury occurred. Refusing to pay or defend claims resulting from Roach's action against Hicks and Denver Equipment, Transport answered that Denver Equipment was the company loading, that Transport's general liability policy with Buckingham contained neither a standard loading and unloading clause nor an omnibus clause by which the incident could be covered, and that its policy excluded coverage to anyone other than the named insured of the policy.
The plaintiff, U.S. Fire Insurance, as insurer of Denver Equipment, settled with Roach before his action came to trial. Thereafter, the plaintiff sued both Transport and Buckingham for reimbursement for the amount of that settlement. At the close of plaintiff's case, the defendants moved that the action be dismissed. The trial court granted the motion, finding that Transport's policy with Buckingham was not ambiguous or in need of interpretation and that neither Hicks nor Denver Equipment was covered by the policy. While plaintiff conceded at trial that the cause of action against Buckingham should have been dismissed, plaintiff urges that it was error for the court to have dismissed the action against Transport.
[1] Plaintiff's appeal must fail if the provision of Transport's policy insuring Buckingham does not cover the loading of the truck Roach was driving. As Transport's policy has neither a loading and unloading clause, nor an omnibus clause, the plaintiff's case is solely dependent on the argument that an omnibus clause is required by 1965 Perm. Supp., C.R.S. 1963, 13-7-36(1)(c), of the Motor Vehicle Financial Responsibility Act. Plaintiff urges that if an omnibus clause is absent, such a clause should be implied and that Hicks and Denver Equipment would thereby become insureds under the policy. However, there has been no voluntary certification of the policy to the Director of Revenue as permitted, but not required, by 1965 Perm. Supp., C.R.S. 1963, 13-7-33, and the Motor Vehicle Financial Responsibility Act does not require insurance; therefore the terms of the Act do not apply. Western Mutual Insurance Co. v. Wann, 147 Colo. 457, 363 P.2d 1054. As was stated in that case: "We know of no law, and counsel refer us to none, that prevents the issuance of insurance policies of limited coverage."
[2] Since no omnibus clause may be implied by law, the district court properly found that Hicks and Denver Equipment were not covered by Transport's policy with Buckingham, and the trial court was correct in granting the motion to dismiss.
Judgment affirmed.
JUDGE COYTE and JUDGE PIERCE concur.