Kral v. American Hardware Mut. Ins. Co., 86CA0427
Decision Date | 12 November 1987 |
Docket Number | No. 86CA0427,86CA0427 |
Citation | 754 P.2d 411 |
Parties | Elizabeth A. KRAL, formerly known as Elizabeth A. Teller, Plaintiff-Appellant, v. AMERICAN HARDWARE MUTUAL INSURANCE COMPANY, Defendant-Appellee. . I |
Court | Colorado Court of Appeals |
Cleveland, Wengler & Robbins, P.C., Daniel B. Stageman, Colorado Springs, for plaintiff-appellant.
White and Steele, P.C., R. Eric Peterson, Sandra L. Spencer, Denver, for defendant-appellee.
Plaintiff, Elizabeth A. Kral, formerly Elizabeth A. Teller, appeals a summary judgment entered in favor of defendant, American Hardware Mutual Insurance Company (American Hardware). We affirm.
Plaintiff's husband, Joseph Teller, was killed in August 1980 when his vehicle was struck by that of uninsured, intoxicated motorist, Norman A. Englebaugh. The Teller car was insured by an American Hardware policy which included uninsured motorist protection with a limit of $30,000. The policy provided, among other things:
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Plaintiff filed suit against Englebaugh in 1980 and subsequently discovered that Englebaugh was uninsured. She then filed a claim with American Hardware under the uninsured motorist coverage, and it paid plaintiff the policy limit of $30,000.
At the time the $30,000 payment was delivered to plaintiff, American Hardware, pursuant to its standard practice, requested that plaintiff sign a "release-trust agreement." Certain portions of the form agreement were excised by plaintiff and an addendum, drafted by plaintiff and her counsel, was attached.
The addendum states:
Some time after plaintiff settled with American Hardware, she learned that there were additional parties against whom a cause of action could be maintained. In May 1981, plaintiff joined as a defendant Adam's Apple Lounge, Inc., the bar at which Englebaugh allegedly had become intoxicated, and, in July 1983, she joined Gary Windom and Don Bates Insurance Agency, insurance agents for Adam's Apple Lounge, as additional defendants.
In April 1985, counsel for plaintiff advised American Hardware that a settlement offer had been made by Windom and Bates. Plaintiff ultimately settled for $177,500 in exchange for dismissal of the claims against Adam's Apple Lounge, Windom and Bates from the Englebaugh case. American Hardware requested reimbursement of $26,625 (15% of $177,500) under the policy and the release-trust agreement. Plaintiff refused and filed a complaint for declaratory judgment. American Hardware filed a counterclaim requesting judgment against plaintiff.
Both parties moved for summary judgment. The trial court granted American Hardware's motion and denied plaintiff's. The court ruled that neither the subrogation clause contained in the American Hardware policy nor the release-trust agreement executed by plaintiff is contrary to public policy. It further ruled that the terms of the release-trust agreement were intended to include sums received from any party to the lawsuit, and not only from Englebaugh, the operator of the uninsured automobile. It therefore concluded that American Hardware was entitled to recoup from plaintiff $26,625 of the $30,000 paid by it under the uninsured motorist clause of the policy.
Plaintiff contends the subrogation clause and release-trust agreement are void as against public policy. We disagree.
The uninsured motorist statute in effect at the times pertinent here, Colo. Sess. Laws 1979, ch. 69, § 10-4-609, at 377, contains no express right to subrogation or statement of public policy. Cf. § 10-4-609(5), C.R.S. (1986 Cum.Supp.). However, this court held in Granite State Insurance Co. v. Dundas, 34 Colo.App. 382, 528 P.2d 961 (1974), that an insurer under uninsured motorist coverage can be subrogated to the rights which the insured has against those persons responsible for his injuries, i.e., the uninsured motorist and other tortfeasors, and that a trust agreement similar to the one in the instant case is not contrary to public policy.
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Kral v. American Hardware Mut. Ins. Co.
...and Sandra Spencer Coleman, Denver, for respondent. Justice KIRSHBAUM delivered the Opinion of the Court. In Kral v. American Hardware, 754 P.2d 411 (Colo.App.1987), the Court of Appeals affirmed a summary judgment entered by the El Paso County District Court in favor of respondent American......