United Cable Television of Jeffco, Inc. v. Montgomery LC, Inc., No. 95CA1320

Docket NºNo. 95CA1320
Citation942 P.2d 1230
Case DateNovember 29, 1996
CourtCourt of Appeals of Colorado

Page 1230

942 P.2d 1230
UNITED CABLE TELEVISION OF JEFFCO, INC., a Colorado
Corporation, Plaintiff-Appellant,
v.
MONTGOMERY LC, INC., f/k/a Montgomery Line Construction,
Defendant-Appellee.
No. 95CA1320.
Colorado Court of Appeals,
Div. II.
Nov. 29, 1996.
Rehearing Denied Jan. 30, 1997.
Certiorari Denied Sept. 8, 1997.

Page 1231

Senn Lewis Visciano & Strahle, P.C., Frank W. Visciano, Brian J. Reichel, Denver, for Plaintiff-Appellant.

Mann & Shappell, W. Berkeley Mann, Jr.; Hall & Evans, L.L.C., Alan Epstein, Denver, for Defendant-Appellee.

Opinion by Chief Judge STERNBERG.

In this indemnification action, plaintiff, United Cable Television of Jeffco, Inc., (United) appeals the dismissal before trial of its indemnity claim against defendant, Montgomery LC, Inc., f/k/a Montgomery Line Construction Company (Montgomery). We affirm in part, reverse in part, and remand for further proceedings.

In 1984, United hired Montgomery to remove television cables attached to utility poles owned by Public Service Company (PSC). A Montgomery employee was injured when he cut a cable and the pole on which he was standing fell to the ground. The employee sued PSC, claiming that the pole had not been properly maintained. PSC claimed at trial that the employee's injuries

Page 1232

were not caused by its failure properly to inspect or maintain the utility pole, but were the result of his actions when removing the television cables.

The jury returned a verdict against PSC, attributing 85 percent negligence to PSC under a comparative negligence analysis. PSC then sought indemnification from United under an express indemnity contract clause in a pole license agreement between United and PSC. PSC also filed an indemnity claim against Osmose Wood Preserving, Inc. (Osmose), with whom PSC had contracted to maintain and inspect its poles. PSC later settled the judgment in favor of Montgomery's employee for a lesser amount.

At the trial on PSC's claim for indemnification against United, the court held that PSC's indemnification action was not precluded by the exclusive remedy provision of the Workers' Compensation Act (Act). This judgment was later affirmed in Public Service Co. v. United Cable Television of Jeffco, Inc., 816 P.2d 289 (Colo.App.1991), rev'd on other grounds, 829 P.2d 1280 (Colo.1992).

Following a settlement of PSC's indemnity claim against United, PSC assigned its indemnity claim against Osmose to United. United sued Osmose pursuant to its assignment from PSC and, in a separate action, sued Osmose and Montgomery to recover its settlement payment to PSC. These district court actions were consolidated.

United's initial claim against Osmose and Montgomery was based solely on the recovery from PSC awarded to Montgomery's employee, and advanced only the common law theories of contribution, indemnity, unjust enrichment, and equitable relief. United initially presented no claim based on any express contractual agreement between the present parties or their predecessors in interest.

Montgomery moved for dismissal on the pleadings, arguing that the Act precluded United from asserting a claim against Montgomery. In response to Montgomery's motion to dismiss, United claimed that an agreement between Montgomery and United existed, that the agreement contained an express indemnity provision, but that many documents, including all copies of the agreement between United and Montgomery, had been discarded during the course of an expansion of United's office. United presented evidence in the form of affidavits and deposition testimony regarding the existence and terms of the agreement. Montgomery denied that an indemnification agreement existed. After allowing United additional time to present the agreement or a copy thereof, the court dismissed United's indemnity claim with prejudice. This appeal followed.

I.

On appeal, United argues that it should have been allowed to present evidence at trial of an express indemnification agreement, and also that an implied contract to indemnify arose from the conduct of the parties. We first address United's express contract argument.

A. The Express Contract Exception to the Exclusive Remedy

Clause of the Act

We agree with United that the exclusive remedy provision of the Act, § 8-41-102, C.R.S. (1996 Cum.Supp.), does not bar its claims.

Generally, employers who comply with the Act's insurance provisions gain immunity from lawsuits filed by injured employees and suits by third parties who claim a right of indemnity against the employer. Hilzer v. MacDonald, 169 Colo. 230, 454 P.2d 928 (1969).

Section 8-41-102 provides that:

An employer who has complied with the provisions of articles 40 to 47 of this title ... shall not be subject to the provisions of section 8-41-101; nor shall such employer ... be subject to any other liability for the death of or personal injury to any employee, except as provided in said articles; and all causes of action, actions at law, suits in equity, proceedings, and statutory and common law rights and remedies for and on account of such death or of personal injury to any such employee and accruing to any person are abolished except as provided in said articles.

Page 1233

The immunity of employers under the Act extends to actions based on common law indemnity claims. However, there is an exception to the exclusive remedy clause where an express contract or pre-existing legal relationship exists. Public Service Co. v. District Court, 638 P.2d 772 (Colo.1981).

In a previous action related to this claim, a division of this court stated that the Act does not immunize an employer from a claim based on an express indemnity agreement. Public Service Co. v. United Cable Television of Jeffco, Inc., 816 P.2d 289 (Colo.App.1991), supra. See also Borroel v. Lakeshore, Inc., 618 F.Supp. 354 (D.Colo.1985) (indemnification provision in lease agreement valid notwithstanding exclusive remedy provision of Act).

Hence, if United could prove the existence of an express indemnity...

To continue reading

Request your trial
6 practice notes
  • Radil v. Sanborn Western Camps, Inc., No. 03-1343.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • September 22, 2004
    ...with respect to the state law bar was properly submitted to the jury); United Cable Television of Jeffco, Inc. v. Montgomery LC, Inc., 942 P.2d 1230, 1234 (Colo.Ct.App.1996) (holding that factual issues essential to determining whether state law bar applied should be submitted to a jury); c......
  • Serna v. Kingston Enterprises, No. 01CA0537.
    • United States
    • Colorado Court of Appeals of Colorado
    • September 26, 2002
    ...damages is not precluded by the exclusivity provision"). Defendant cites United Cable Television of Jeffco, Inc. v. Montgomery LC, Inc., 942 P.2d 1230, 1232-33 (Colo.App.1996), for the proposition that employers are immune under the WCA for common law indemnity claims. However, that case de......
  • Nicholas v. Nicholas, No. 88,765
    • United States
    • Court of Appeals of Kansas
    • April 18, 2003
    ..."transfer" or "encumbrance" of the marital property. The Colorado court concluded that the POD change did not encumber marital property. 942 P.2d at 1230. We disagree with this holding. Here, Ruby claims that the POD, TOD, and life insurance beneficiary designations paid out to Arthur and S......
  • People v. Huehn, No. 00CA0505.
    • United States
    • Colorado Court of Appeals of Colorado
    • January 17, 2002
    ...disturbed absent clear evidence of mistake amounting to an error of law. United Cable Television of Jeffco, Inc. v. Montgomery LC, Inc., 942 P.2d 1230 (Colo.App. Mere speculation or supposition that an original document may have contained information that the duplicate did not, or vice vers......
  • Request a trial to view additional results
6 cases
  • Radil v. Sanborn Western Camps, Inc., No. 03-1343.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • September 22, 2004
    ...with respect to the state law bar was properly submitted to the jury); United Cable Television of Jeffco, Inc. v. Montgomery LC, Inc., 942 P.2d 1230, 1234 (Colo.Ct.App.1996) (holding that factual issues essential to determining whether state law bar applied should be submitted to a jury); c......
  • Serna v. Kingston Enterprises, No. 01CA0537.
    • United States
    • Colorado Court of Appeals of Colorado
    • September 26, 2002
    ...damages is not precluded by the exclusivity provision"). Defendant cites United Cable Television of Jeffco, Inc. v. Montgomery LC, Inc., 942 P.2d 1230, 1232-33 (Colo.App.1996), for the proposition that employers are immune under the WCA for common law indemnity claims. However, that case de......
  • Nicholas v. Nicholas, No. 88,765
    • United States
    • Court of Appeals of Kansas
    • April 18, 2003
    ..."transfer" or "encumbrance" of the marital property. The Colorado court concluded that the POD change did not encumber marital property. 942 P.2d at 1230. We disagree with this holding. Here, Ruby claims that the POD, TOD, and life insurance beneficiary designations paid out to Arthur and S......
  • People v. Huehn, No. 00CA0505.
    • United States
    • Colorado Court of Appeals of Colorado
    • January 17, 2002
    ...disturbed absent clear evidence of mistake amounting to an error of law. United Cable Television of Jeffco, Inc. v. Montgomery LC, Inc., 942 P.2d 1230 (Colo.App. Mere speculation or supposition that an original document may have contained information that the duplicate did not, or vice vers......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT