Prudential Property and Cas. Ins. Co. of America v. District Court In and For Seventeenth Judicial Dist.

• Citation: 617 P.2d 556
• Decision Date: 06 October 1980
• Docket Number: No. 80SA174,80SA174
• Parties: PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY OF AMERICA, a New Jersey Corporation, Petitioner, v. The DISTRICT COURT IN AND FOR the SEVENTEENTH JUDICIAL DISTRICT of the State of Colorado, and The Honorable Dorothy E. Binder, one of the Judges thereof, Respondents.
• Court: Supreme Court of Colorado

Page 556

617 P.2d 556

PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY OF AMERICA, a New Jersey Corporation, Petitioner, v. The DISTRICT COURT IN AND FOR the SEVENTEENTH JUDICIAL DISTRICT of the State of Colorado, and The Honorable Dorothy E. Binder, one of the Judges thereof, Respondents.

No. 80SA174.

Supreme Court of Colorado, En Banc.

Oct. 6, 1980.

Pryor, Carney & Johnson, W. Randolph Barnhart, Englewood, for petitioner.

Marie T. Layton, Anthony J. Sturniolo, Denver, Carroll & Bradley, P. C., John S. Carroll, Westminster, for respondents.

ERICKSON, Justice.

Prudential Property and Casualty Insurance Company of America (Prudential) petitioned this Court for a writ in the nature of prohibition. Prudential asserts that the respondent district court exceeded its jurisdiction in ordering consolidation of a declaratory judgment action with a subsequently filed cross-claim for personal injuries. The declaratory judgment action sought an interpretation of the rights and duties of Prudential under a homeowner's insurance policy. We issued a rule to show cause, and now make the rule absolute.

The following facts are undisputed. Prudential issued a homeowner's policy to Larry Chance. This policy excluded "bodily injury ... which (was) either expected or intended from the viewpoint of the Insured." On May 19, 1979, an altercation between Chance and John Schultz took place at Chance's home. Chance and his wife were separated and Schultz was interested in Mrs. Chance. Schultz was at the Chance home on a Saturday morning when the hostilities commenced. Initially, Chance and Schultz cast words alone at each other, but eventually fists were thrown, and a chemical shield or mace was used. For one reason or another, Chance who had extensive training in the martial arts, and works as a Deputy United States Marshal, kicked Schultz in the groin, causing him to suffer the loss of a testicle. Schultz sought damages for his injury.

The facts behind the dispute appear in depositions taken by Prudential. Chance testified that he accidentally kicked Schultz. Chance testified that Schultz sprayed chemical shield (mace) in his face, and as a "immediate reaction" to "ward off a frontal attack," Chance kicked Schultz in the groin. Schultz stated in his deposition that he was first kicked by Chance and that he then sprayed the chemical shield in Chance's face in defense. Schultz agreed in his deposition, however, that the kick was accidental. Schultz testified that he "just (doesn't) believe the man intended to do it." Prudential, thereafter, questioned whether there was some collusion between Chance and Schultz to cause Prudential to pay for the injuries suffered by Schultz.

The declaratory judgment action was commenced after Schultz, through his attorney, sent a letter to Prudential indicating that he had been injured by Chance during an altercation on Chance's property. Prudential sought the declaratory judgment to determine its liability under the homeowner's policy which it issued to Chance. Prudential named Chance and Schultz as defendants. Schultz cross-claimed against Chance for either negligently or intentionally kicking him. Prudential requested that the two actions be considered separately.

The district court denied the motion to sever, and made the finding that a "declaratory judgment in this matter cannot be rendered without the determination of a factual issue. Defendant Schultz, according to the district court, has cross-claimed against defendant Chance and has requested a jury trial ... on the same factual issue." The district court found that "separate trials would not be convenient nor conductive to expedition or economy considering the interests of all the parties and the burden which would be imposed upon the Court." The following procedure was created by the district court to avoid prejudice to Prudential at the time of trial:

"(a) The case will be identified to the jury only as it relates to the cross-claim between the defendants, and Prudential will not be identified as a party.

"(b) (Prudential's) counsel will be permitted to participate in the trial as fully as desired and his representation as (Prudential's) attorney will not be disclosed to the jury. He will be permitted to cross-examine witnesses called by either or both defendants.

"(c) A special instruction will be submitted to the jurors asking them to decide whether or not Defendant Chance intended to cause bodily injury to Defendant Schultz.

"(d) Based upon the jury's answer to that inquiry, the Court will render a declaratory judgment."

Prudential argues before this Court that the district court proceeded in excess of its jurisdiction, and claims that the trial procedure ordered by the district court denies Prudential due process and its right to a jury trial as accorded by C.R.C.P. 38(a). We need not address the constitutional or jury trial issues. We conclude that the district court abused its discretion in ordering that the declaratory judgment action proceed to trial in accordance with the procedure fashioned by the district court to avoid prejudice to Prudential.

I.

This Court's original jurisdiction may properly be invoked pursuant to C.A.R. 21 where a trial court has exceeded its jurisdiction or abused its discretion in exercising its functions, and appeal is not an appropriate remedy. E. g., Gonzales v. District Court, Colo., 602 P.2d 857 (1979); Tyler v. District Court, 193 Colo. 31, 561 P.2d 1260 (1977); Vaughn v. District Court, 192 Colo. 348, 559 P.2d 222 (1977); City of Colorado Springs v. District Court, 184 Colo. 177, 519 P.2d 325 (1974). In such cases a writ of prohibition may be issued. The general function of a writ of prohibition is to "restrain rather than remedy an abuse of jurisdiction." Vaughn, supra, 192 Colo. at 349, 559 P.2d at 223. We conclude that this Court's jurisdiction has been properly invoked pursuant to C.A.R. 21.

II.

Pursuant to C.R.C.P. 42(a), a court may order a joint trial of two actions when they involve a common question of law or fact. Similarly, a court may order the separate trial of any separate issue or claim in order to avoid prejudice, or in the furtherance of convenience, or when conducive to the expeditious or economical determination of an issue or claim. C.R.C.P. 42(b). C.R.C.P. 42 grants the trial...