Fontenot v. Haight
| Decision Date | 13 October 1988 |
| Docket Number | No. 87CA0447,87CA0447 |
| Citation | 764 P.2d 378 |
| Parties | Betty A. FONTENOT, Plaintiff-Appellant, v. George E. HAIGHT and Modular Vehicle, Inc., a Colorado corporation, Defendants, v. WESTERN GUARANTEE FUND, an insurance fund set up under the laws of the State of Colorado, Garnishee-Appellee. . IV |
| Court | Colorado Court of Appeals |
Lloyd C. Kordick Colorado Springs, for plaintiff-appellant.
No appearance for defendants.
Dale L. Holst, P.C., Dale L. Holst, Colorado Springs, for garnishee-appellee.
Betty Fontenot (Fontenot) appeals the trial court's judgment in favor of Western Guaranty Fund (the Fund) on her traverse of answers to two of three writs of garnishment that, if granted, would have required the Fund to pay Fontenot $50,000 on each of the three writs. We affirm.
George E. Haight (Haight) was an employee of Modular Vehicle, Inc., acting in the scope of his employment when the vehicle he was driving collided with Fontenot's car, injuring her. In Fontenot's negligence action, a jury verdict was entered against Haight, based on his negligence, and against Modular Vehicle, based on respondeat superior, jointly and severally, in the amount of $145,615.31.
At the time of the accident, Modular Vehicle had comprehensive general liability insurance with Iowa National Mutual Insurance Co. (Iowa National). The insurance policy provided coverage for the accident with limits of $250,000 per person and $500,000 per accident. Modular Vehicle also then had an umbrella excess liability insurance policy issued by Iowa National. The umbrella policy provided that in the event the underlying insurance limits on the first policy were exhausted, the umbrella policy would continue in force to a maximum of $3,000,000.
Prior to trial, Iowa National was declared insolvent. After judgment, because of that insolvency, the Fund, a non-profit, unincorporated legal entity, authorized and created by the Colorado Insurance Guaranty Association Act, § 10-4-501, et seq., C.R.S. (1987 Repl.Vol. 4A), (the Act) became involved as garnishee when it was served three writs of garnishment.
The first writ of garnishment was for monies the Fund owed concerning the insolvency of Iowa National on that company's policy insuring Modular Vehicle, Inc. The second writ demanded monies allegedly held by the Fund on behalf of defendant Haight. The third writ concerned monies claimed due under the umbrella policy.
Because of Iowa National's insolvency, the Fund answered "yes" as to whether it owed the monies as alleged in the first writ and paid Fontenot $50,000. The Fund answered "No" as to whether it owed the monies as alleged in the second and third writs of garnishment.
Fontenot traversed the answers on the second and third writs, and after a hearing thereon, the trial court ruled that the Fund did not owe Fontenot additional money.
Fontenot contends that the trial court erred in not ordering the Fund to pay $50,000 on the writ of garnishment issued for monies assertedly held on behalf of Haight because of Iowa National's insolvency. She argues that Haight has a separate and distinct "covered claim" under the Act. We disagree.
Section 10-4-503(4), C.R.S. (1987 Repl.Vol. 4) defines "covered claim" as an "unpaid claim ... which arises out of and is within the coverage and not in excess of the applicable limits of an insurance policy ... issued by an insurer if such insurer becomes an insolvent insurer...." (emphasis added) Thus, a "covered claim" is a claim that would have been covered by insurer's policy but for its insolvency. See Arizona Property & Casualty Insurance Guaranty Fund v. Helme, 153 Ariz. 129, 735 P.2d 451 (1987).
The underlying insurance policy in this case provides coverage for its insureds with a limit of liability of $250,000 per person and $500,000 per accident. The pertinent provision states:
(emphasis added)
The policy further provides that:
Here, the accident was the only "occurrence." Fontenot is the only person who suffered bodily...
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