Trans Cent. Airlines, Inc. v. Peter J. McBreen & Associates, Inc.

• Decision Date: 31 May 1972
• Docket Number: No. 71--223,71--223
• Citation: 31 Colo.App. 71,497 P.2d 1033
• Parties: TRANS CENTRAL AIRLINES, INC., a Colorado Corporation, and TCA Leasing Corporation, a Nevada Corporation, Plaintiffs-Appellees, v. PETER J. McBREEN & ASSOCIATES, INC., an Illinois Corporation, and Gerald R. Climer, Defendants-Appellants, Argonaut Insurance Co., a corporation authorized by the State Insurance Commissioner to conduct insurance business within the State of Colorado, Defendant-Appellee. . I
• Court: Colorado Court of Appeals

Page 1033

497 P.2d 1033

31 Colo.App. 71

TRANS CENTRAL AIRLINES, INC., a Colorado Corporation, and TCA Leasing Corporation, a Nevada Corporation Plaintiffs-Appellees, v. PETER J. McBREEN & ASSOCIATES, INC., an Illinois Corporation, and Gerald R. Climer, Defendants-Appellants Argonaut Insurance Co., a corporation authorized by the State Insurance Commissioner to conduct insurance business within the State of Colorado Defendant-Appellee.

No. 71--223.

Colorado Court of Appeals, Div. I.

May 31, 1972.

Richard O. Pittam, Littleton, for plaintiffs-appellees.

Blunk, Johnson & Allspach, Wayne L. Johnson, Denver, for defendants-appellants.

Paul D. Renner, Denver, for defendant-appellee.

SILVERSTEIN, Chief Judge.

Plaintiffs in this action are the lessee (Trans Central Airlines, Inc.) and the owner-lessor (TCA Leasing Corporation) of an airplane. The airplane was damaged in an accident and plaintiffs sued the insurer of the plane (Argonaut Insurance Co.) and the insurer's adjusters (Peter J. McBreen & Associates, Inc. and G. R. Climer) to recover for losses incurred as a result of the accident. The claim against the insurer was based on the policy and the claim against the adjusters was based on false representations and fraudulent acts made and committed during the course of adjustment.

All of the defendants filed motions for summary judgment. The motion of the insurer was granted and the motion of the adjusters was denied. Although the insurer is designated as an appellee and entered its appearance in this court, no appeal was taken from the order granting its motion for summary judgment.

Upon entering the order denying the motion of the adjusters, the trial court stated,

'The Court further expressly determines that there is no just cause for delay, and this order denying the Motion for Summary Judgment of Defendants McBreen and Climer is by agreement of counsel a final and appealable judgment.'

C.R.C.P. 54(b) provides for such a determination when, as here, more than one claim for relief is presented in an action or multiple parties are involved.

In reliance on this declaration by the trial court of the finality of its order the adjusters perfected the appeal to this court. However, it is our opinion that the declaration is invalid, that the order appealed from is interlocutory and not appealable and that the appeal must, therefore, be dismissed.

In State of Colorado v. Harrah, 118 Colo. 468, 196 P.2d 256, our Supreme Court stated, 'The order denying motion for summary judgment is interlocutory and not subject to review,' It is clear that absent certification under C.R.C.P. 54(b) (that is, a determination that there is no just reason for delay and the direction for entry of judgment) the order before us would not be an appealable order. So we must determine whether such certification permits or requires us to review the order. We find that it does neither.

First, the rule provides that the trial court, not the parties or their counsel, may make the required determination of finality. Further, the certification by the trial court is not binding upon the appellate courts. Since C.R.C.P. 54(b) is identical to the corresponding Federal Rule, the Federal Court cases interpreting the latter are persuasive here. In Backus Plywood Corp. v. Commercial Decal,...