M.L.G. Corp. v. Davis, A-C

• Decision Date: 28 April 1983
• Docket Number: No. 82CA0385,A-C,82CA0385
• Citation: 672 P.2d 1019
• Parties: M.L.G. CORPORATION, d/b/a American International Rent-ar, Plaintiff-Appellant, v. Gary James DAVIS, Defendant-Appellee. . III
• Court: Colorado Court of Appeals

Page 1019

672 P.2d 1019

M.L.G. CORPORATION, d/b/a American International Rent-A-Car, Plaintiff-Appellant, v. Gary James DAVIS, Defendant-Appellee.

No. 82CA0385.

Colorado Court of Appeals,

Div. III.

April 28, 1983.

Rehearing Denied June 9, 1983.

Certiorari Granted Nov. 29, 1983.

Leslie B. Schwartz, Denver, for plaintiff-appellant.

DeMoulin, Anderson, Campbell & Laugesen, P.C., Laird Campbell, Thomas M. Schrant, Denver, for defendant-appellee.

Joel H. Greenstein, John G. Salmon, Kathleen L. Spalding, Denver, for amicus curiae Colorado Trial Lawyers Assn.

KELLY, Judge.

M.L.G. Corporation, doing business as American International Rent-A-Car, appeals the judgment entered after trial to the court dismissing its suit against the defendant, Gary James Davis, to recover the value of an automobile rented by Davis and demolished in an accident. Among other things, MLG argues that the trial court erred in ruling that specified provisions of the written rental contract between the parties constitute an insurance contract wherein MLG is the insurer and Davis is the insured. We conclude that this ruling was erroneous, and we, therefore, reverse.

The disputed section of the rental agreement states:

"PROVIDING THERE IS NO VIOLATION BY CUSTOMER OF ANY OF THE PROVISION[S] OF THIS AGREEMENT, AND NOT OTHERWISE, Customer's responsibility for damages to the vehicle ... shall be

....

(c) waived if Customer has at the time of the rental initialed the box entitled 'Physical Damage Waiver (PDW)' and agreed to pay Lessor the additional specified fee.

NOTE: THIS IS NOT A CONTRACT OF INSURANCE."

Although other options were available to Davis limiting his liability either to $350 or to $500, Davis selected the "PDW" box. Davis was charged an additional fee of $4.00 per day because of this selection.

While under the influence of alcohol, Davis hit a utility pole, resulting in the total destruction of the vehicle. In seeking to recover for this loss, MLG relies on Davis' violation of the provisions of the rental agreement requiring him to return the vehicle in the same condition in which he received it and prohibiting its operation by the lessee while "under the influence of drugs or intoxicants."

The trial court ruled that the physical damage waiver provisions of the rental agreement were ambiguous, and concluded that they constituted an insurance agreement between the parties. It therefore construed the provisions most strongly against MLG, concluded that it was an adhesion contract, and declined to enforce it. We agree with MLG that these rulings were erroneous.

The determination of ambiguity in a document is a question of law, and the appellate court is not bound by the findings of the trial court on the question. Buckley Bros. Motors, Inc. v. Gran Prix Imports, Inc., 633 P.2d 1081 (Colo.1981). A difference of opinion between the parties about the interpretation to be given an instrument does not create an ambiguity. Radiology Professional Corp. v. Trinidad Area Health Ass'n, Inc., 195 Colo. 253, 577 P.2d 748 (1978). Rather, the language of the instrument is to be construed in harmony with the accepted meaning of the words used and with the other provisions of the document. Christmas v. Cooley, 158 Colo. 297, 406 P.2d 333 (1965).

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