Universal Indem. Ins. Co. v. Tenery, 13285.
| Decision Date | 10 December 1934 |
| Docket Number | 13285. |
| Citation | 39 P.2d 776,96 Colo. 10 |
| Parties | UNIVERSAL INDEMNITY INS. CO. v. TENERY et al. |
| Court | Colorado Supreme Court |
Rehearing Denied Dec. 31, 1934.
Error to District Court, City and County of Denver; Charles C Sackmann, Judge.
Action by Mayo Tenery, by W. C. Tenery, his next friend, against Alfred Callahan and another, wherein a default judgment was entered against defendant named, and the Universal Indemnity Insurance Company was made garnishee. To review a judgment for plaintiff, the garnishee beings error.
Modified and affirmed.
Bardwell & Bardwell and Erskine R. Myer, all of Denver, for plaintiff in error.
James R. Hoffman, of Denver, for defendant in error.
April 22, 1932, Alfred Callahan rented an automobile from the Hertz Driv-ur-self System, Inc., signing a rental agreement therefor, and later in the evening, while admittedly under the influence of intoxicating liquor, he so carelessly and negligently operated the automobile as to cause a collision with a car driven by Mayo Tenery, defendant in error resulting in personal injury to Tenery and property damage to Tenery's automobile.
Tenery filed a suit against Callahan and the Hertz System alleging negligence. Callahan defaulted, and the Hertz System moved for dismissal under section 103(a), chapter 122 of the Session Laws of Colorado for 1931 (page 546).
Chapter 122, referred to, is known as the Uniform Motor Vehicle Act and the section pertinent here is as follows:
The motion for dismissal set out complies with the statute; as provided, the court caused a preliminary hearing to be held thereon, and, being satisfied as to compliance with the statute, ordered dismissal as to the Hertz System. Judgment was entered upon the default of Callahan for both actual and exemplary damages in the total sum of $2,575.44 including costs. Execution was issued on the judgment and returned nulla bona as to Callahan; whereupon garnishment was run against the Universal Indemnity Company, plaintiff in error, the company with which the Hertz System had a contract of insurance in full force at the time, and in compliance with the statute above quoted. This company will be hereinafter mentioned as the insurance company.
The insurance company answered the garnishee summons in the negative or to the effect that it had no moneys or properties belonging to Callahan and was not indebted to him. This answer was traversed by Tenery, the garnisher, and, upon hearing between plaintiff and the garnishee, the court gave judgment against the garnishee in the full amount of the original judgment and dispensed with a motion for new trial.
Plaintiff in error presents its various assignments under four heads, as follows.
(1) Under the insurance policy, Exhibit C-1, and under the provisions of section 103 of chapter 122 of the Session Laws of Colorado for 1931, does the insurance company insure the driver of a rented vehicle against liability or against loss from liability?
(2) Is the rental agreement between the driver of the car and the owner a part of the contract of insurance, and, if so, does a violation of the provisions of the contract of insurance prevent recovery by the judgment debtor to whose rights and only to those rights, in a garnishment proceeding, the plaintiff succeeds?
(3) May judgment be returned against this garnishee, not only for the actual damages sustained by the defendant in error, but also for exemplary damages?
(4) Does the dismissal of the Hertz Drivur-self System, the insured in the original case below, on the ground that it has complied with the laws regarding insurance to be carried by the insured, bind the insurance company on its contract as an insurer against liability rather than against loss from liability?
1. Counsel who procured a dismissal as to the Hertz System on the ground of compliance with the statute appear in the garnishment proceedings as counsel for the insurance company. They urged that there had been a compliance with the statute and later sought to establish nonliability in the garnishment proceedings under the terms of the policy. They now argue that the policy of insurance is one of insurance against loss from liability rather than against liability. As between the two clients, first, the Hertz System and, second, the insurance company, the position and contentions of counsel are inconsistent. If the policy then in force does not cover liability, then it is an evasion of the statute, and the original defendant, Hertz System, becomes liable. Unless this policy was obtained and written for the express purpose of complying with the statute, then the entire matter becomes a sham. However, sections 1 and 2 of the 'riders' on the policy set this question at rest. They are as follows: 'Any and all provisions of this policy which are in conflict with the statutes of the state wherein this policy is issued are understood, declared and acknowledged by this Company to conform to such statutes.
'It is understood and agreed that the intent and purpose of this policy is to protect the Hertz Driv-ur-self System of Colorado and bailee insofar as Items 5 and 6 covering property damage and public liability to the limits as specified.'
The requirements of the statute at once became a controlling part of the insurance contract, as effectively as though incorporated therein. By reference to the statute, we find these words, 'insuring the renter against liability arising out of his negligence,' and, when this provision becomes, under the law, a part of the insurance contract, it is one of indemnity and insures against liability.
'A liability insurance policy indemnifying assured against loss from claims for damages by operation of an automobile providing...
To continue reading
Request your trial
-
Northwestern National Casualty Company v. McNulty
...between public policy as established by the legislature and public policy established by the judiciary.13 Universal Indemnity Insurance Co. v. Tenery, 96 Colo. 10, 39 P.2d 776 (1934) shows how the two issues, coverage and public policy, appear to overlap. In that case the insured was in the......
-
Davis v. M.L.G. Corp.
...from a car rental agency creates a bailment contract for the mutual benefit of the parties. See generally Universal Indemnity Insurance Co. v. Tenery, 96 Colo. 10, 39 P.2d 776 (1934); 14 Blashfield Automobile Law and Practice § 475.13 (F. Lewis 3d ed. 1969). The general rule is that the bai......
-
St. Paul Mercury Ins. Co. v. Duke University
...other grounds, 423 F.2d 115 (5th Cir.1970); Gleason v. Fryer, 30 Colo.App. 106, 491 P.2d 85 (1971) (following Universal Indem. Ins. Co. v. Tenery, 96 Colo. 10, 39 P.2d 776 (1934)); Tedesco v. Maryland Casualty Ins. Co., 127 Conn. 533, 18 A.2d 357 (1941); Caspersen v. Webber, 298 Minn. 93, 2......
-
Valley Forge Ins. Co. v. Jefferson
...companies to pay punitive damages as part of their contractual obligation to their insured. See, e.g., Universal Indem. Ins. Co. v. Tenery, 96 Colo. 10, 39 P.2d 776, 779 (1934); Schnuck Mkts., Inc. v. Transamerica Ins. Co., 652 S.W.2d 206, 209-10 (Mo.App.1983). Still other courts have found......
-
Punitive damages: when, where and how they are covered.
...and Surety Co., 484 P.2d 1252 (Colo.App. 1971) (policy did not cover punitive damages award). Universal Indemnity Insurance Co. v. Tenery, 39 P.2d 776 (Colo. 1934) (en banc) (punitive damages not covered under automobile Caulfield v. Amica Mutual Insurance Co., 627 A.2d 466 (Conn.App. 1993)......
-
The Wacky World of Collision and Comprehensive Coverages: Intentional Injury and Illegal Activity Exclusions
...1964); Dotts v. Taressa J.A., 390 S.E.2d 568 (W. Va. 1990). 79. See supra note 76. 80. See, e.g., Universal Indem. Ins. Co. v. Tenery, 39 P.2d 776 (Colo. 1934); Bass v. Horizon Assurance Co., 562 A.2d 1194 (Del. 1989); Budget Rent-A-Car Sys., Inc. v. Ricardo, 942 P.2d 507 (Haw. 1997); Hertz......
-
There Is a Still a Chance: Raising Unpreserved Arguments on Appeal
...[58]Baker, supra note 54 at 846. [59]See supra note 24. [60]Baker, supra note 54 at 846. [61]Universal Indem. Ins. Co. v. Tenery, 39 P.2d 776, 779 (Colo. 1934), citing Baker, supra note 54; Neilson v. Bowles, 236 P.2d 286, 289 (Colo. 1951) (exercising discretion when "necessary to do justic......
-
Conflicts in Settlement of Personal Injury Cases
...which a reasonably prudent person would use under the same or similar circumstances." 15. Universal Indemnity Insurance Co. v. Tenery, 96 Colo. 10, 39 P.2d 776 (1934); see also. Gleason v. Fryer, 30 Colo.App. 106, 491 P.2d 85 (1971). 16. Supra, note 13. This month's column was written by J.......