Emcasco Ins. Co. v. Dover
| Citation | 678 P.2d 1051 |
| Decision Date | 20 October 1983 |
| Docket Number | No. 82CA0403,82CA0403 |
| Parties | EMCASCO INSURANCE CO., an Iowa corporation, Plaintiff-Appellee, v. Margaret Carole DOVER and Zane Alan Dover, Defendants-Appellants. . I |
| Court | Court of Appeals of Colorado |
Burnett & Horan, Myron H. Burnett, William P. Horan, Denver, for plaintiff-appellee.
Brian T. McCauley, Westminster, for defendants-appellants.
The defendants, Margaret and Zane Dover, were insured under an automobile liability policy issued by the plaintiff, Emcasco Insurance Company. In a declaratory judgment action filed by the insurer, the trial court held it was not obligated to defend the Dovers, and was not liable for any damages that might be awarded against the Dovers to a third party in an action arising out of a motor vehicle accident. On appeal by defendants, we reverse.
The liability insurance policy provided that "if claim is made or suit is brought against the insured, he shall immediately forward to the company every demand, notice, summons or other process received by him or his representative." On March 7, 1979, the Dovers were involved in an automobile accident with a truck belonging to Holtz Trucking Company and being driven by one Mark William Holtz. The insurer was notified of this accident, and paid benefits to the Dovers under the Colorado Auto Accident Reparations Act, § 10-4-701 et seq., C.R.S.1973.
On May 15, 1980, the Dovers sued Holtz, who filed an answer and counterclaim against them on June 11, 1980. On July 25, 1980, the Dovers' attorney wrote to the insurer telling it that he had filed suit against Holtz, asking the company to forward records of payments to the Dovers, informing it of the counterclaim, inviting it to participate in the defense, and stating that:
"All pleadings, including our complaint, the answer and counterclaim, and all of our records and investigative documents are available to you at our office for your review and copying at your convenience during regular business hours."
The Dovers' counsel prepared and filed an answer to the counterclaim and the case was eventually set for trial on February 22, 1982. On January 27, 1982, however, the insurer filed this action seeking a declaratory judgment that would void coverage under its policy because of the Dovers' failure to give notice to the insurer of the filing of the counterclaim and because of failure to forward the suit papers. The insurer moved in this declaratory judgment action for an order restraining the parties from proceeding to trial on February 22, 1982, in the Dover-Holtz damage suit.
This motion was set for hearing on February 18, 1982. The court took no evidence, but considered the insurer's verified complaint, a copy of the July 25 letter, and statements of counsel. While the hearing started out as relating to the motion for a restraining order, the merits of the declaratory judgment were argued, and, at the conclusion of the hearing, the court ruled on that issue. It held that the Dovers' failure to forward immediately the pleadings encompassing the Holtz counterclaim breached the notice requirement of the insurance policy, and that if the attorney's letter was considered adequate notice, the insurer had not had sufficient time to prepare for the February 22, 1982, trial. The court then determined the motion for restraining order to be moot and entered a declaratory judgment in favor of the insurer.
Initially, in this appeal, the insurer argues that the Dovers' failure to file a motion for new trial required a dismissal of the appeal. Finding that this was not the type of proceeding requiring filing of a new trial motion as a prerequisite to appeal, we reject this contention.
Only where there are controverted issues of fact is a new trial motion a prerequisite to an appeal of an adverse trial court ruling. C.R.C.P. 59(h). Here, there is no...
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...and city council notice of the claim of damage, service upon mayor rather than city clerk complies with statute); Emcasco Ins. v. Dover, 678 P.2d 1051 (Colo.App.1983) (where the purpose of a notice provision is to make certain the insurer is informed of suits filed against an insured, notic......
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...to both liability and UIM cases. See Haller v. Hawkeye Security Ins. Co., 936 P.2d 601, 604 (Colo.Ct.App.1997); Emcasco Ins. Co. v. Dover, 678 P.2d 1051, 1054 (Colo.Ct.App.1983). However, this court has not previously considered whether the notice-prejudice rule applies in UIM cases. Theref......
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