Opinion
Sept. 22, 1970
Editorial Note:
This case has been marked 'not for publication' by the court.
Zarlengo, Mott & Carlin, Albert E. Zarlengo, Jr., Denver, for plaintiff in error.
Litvak & Litvak, Alan E. Karsh, Denver, for defendants in error.
DUFFORD, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and was subsequently transferred to the Court of Appeals under the authority vested in the Supreme Court.
This is an appeal from a hearing and order on a traverse to a garnishee's answer. The garnishee writ was issued against the insurance company, plaintiff in error, to collect a judgment against its insured, John McQueen, an employee of Engineered Equipment Incorporated. Judgment had also been entered against said employer and a garnishee writ had also issued against the employer's insurer.
The question presented in this appeal relates to the interpretation of 'other insurance' provisions in the two insurance contracts. At issue is the scope of the liability of the two insurers, Dairyland Insurance Company and Industrial Insurance Company. Only Dairyland is before us on this appeal.
The writ of error in this case rests squarely upon the fact that Engineered Equipment Incorporated was determined to be jointly and severally liable for the judgment amount entered by the trial court. Such company was directly insured by Industrial Insurance Company. In this appeal, Dairyland also takes the position that such company was an insured under the policy which Dairyland had issued to John McQueen, the employee.
By our decision in McQueen v. Robbins, Colo.App., 476 P.2d 57 (Supreme Court Nos. 23509 and 23911), announced August 18, 1970, we reversed the trial court's judgment in that case insofar as it determined that Engineered Equipment Company was liable on such judgment and remanded for a new trial on that issue. Without judgment liability on the part of such company, any issues as to the liability of its insurer cannot be determined in this appeal.
Our decision in McQueen v. Robbins, Supra, also affirms the entry of judgment against John N. McQueen. Consequently, the ruling of the trial court which sustained the traverse to the answers of his garnisheed insurer, Dairyland, and the entry of judgment by the trial court against such insurer up to the amounts of the policy limits should stand.
The trial court's judgment is affirmed, and this case is remanded for the entry of such supplemental orders as shall be consistent with this opinion, with our opinion in the case of McQueen v. Robbins, Supra, and with the results of the new trial which may be held in that case.
SILVERSTEIN, C.J., and DWYER, J., concur.