Opinion
April 11, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 1070
John F. Mueller, Denver, for plaintiffs-appellees.
Yegge, Hall & Evans, Eugene O. Daniels, Denver, for defendant-appellant.
ENOCH, Judge.
This is an action to recover damages under an insurance policy for the loss of a Beechcraft airplane. Plaintiff-appellee Nevada Plane Rental, Inc., (Nevada) was the owner of the airplane and plaintiff-appellee Ringsby Truck Lines, Inc. (Ringsby) was the lessee of the craft. Trial was to the court which entered judgment against the insurer, defendant-appellant, Insurance Company of North America (I.N.A.). We reverse.
The facts material to the determination of this case are not in dispute. H. H. Mitton, a professional pilot, was employed by Ringsby to fly the Beechcraft and other airplanes used by Ringsby. Mitton was the vice president of Nevada and J. W. Ringsby was its president. Mitton was president and J. W. Ringsby was vice president of another company, Air Charters of Denver, Inc., which company leased planes from Nevada, including this Beechcraft, for charter flights. The charter business was operated primarily by Mitton.
In March 1962, Ringsby leased the Beechcraft from Nevada for use as a company plane, and Mitton was instructed that this plane was not to be used for any more charter flights without specific approval of J. W. Ringsby or one of the other officers of Ringsby. On December 12, 1962, Mitton, without permission, used the Beechcraft for a charter flight to Provo, Utah, and crashed the plane in landing at Provo.
I.N.A. had insured this Beechcraft under two different policies; a charter flight policy under which there admittedly is no liability because Mitton failed to have a co-pilot on the charter flight as required by the policy, and a non-charter flight policy. Nevada and Ringsby claim coverage under this latter policy even though it does not cover charter flights because the flight in question was made without their knowledge or consent. The critical exclusion clause in the policy provides as follows:
'This policy does not apply:
(1) To any insured while the aircraft is being operated for any purpose or use other than Industrial Aid or Pleasure and Business as defined herein with the knowledge and consent of such insured or of any executive officers or partner thereof.'
The trial court determined that this exclusion clause did not apply because Nevada and Ringsby had no knowledge of the charter flight. We do not agree. The policy listed ten individuals and companies as named insured including Nevada, Ringsby and Mitton. The court gave no consideration to the fact that Mitton was a named insured. Mitton used the airplane for a use not covered by the policy, and he certainly did so with his own knowledge and consent. The construction of this clause urged by the plaintiffs would require that there be ten separate insurance contracts insuring each of the ten named insured separately, or would require a ruling that if one or even nine of the named insured would violate the terms of the policy, the remaining named insured who had no knowledge of the violation could collect under the policy. We find no authority to support such a forced construction and plaintiffs cite none.
The fact that Mitton violated his instructions from Ringsby does not affect the liability of I.N.A. as asserted by the plaintiffs. This was a limitation between Ringsby and Mitton and there is nothing in the policy to indicate that Mitton, as a named insured, had any more or less authority than any of the other named insured. The provisions of the policy are clear and unambiguous and to interpret the policy as urged would require the court to rewrite the contract which cannot be done by judicial construction. Newark Insurance Co. v. State Farm Mutual Automobile Insurance Co., 164 Colo. 498, 436 P.2d 353. Neither can the court relieve one of the parties to the contract from its disadvantageous terms by a forced construction of its provisions. Standard Marine Insurance Co. v. Peck, 140 Colo. 56, 342 P.2d 661.
The construction of a written document, such as an insurance policy, is a question of law and the findings and conclusions of the trial court are not binding on review. Meier v. Denver U.S. National Bank, 164 Colo. 25, 431 P.2d 1019. Accordingly, we hold that the exclusion clause does apply and under the undisputed facts of this case, the plaintiffs were not entitled to recover under the policy.
A second claim by the plaintiffs in this action was for the recovery of attorney's fees incurred in defending a personal injury action in another court, initiated by the injured passengers in the charter flight. I.N.A. refused to defend Nevada and Ringsby in that action on the same grounds that I.N.A. denied coverage in the case before this court. The trial court entered judgment for plaintiffs for the attorney's fees. However, it was agreed by counsel at oral argument that if on review, the trial court's construction of the policy was reversed, the judgment for the attorney's fees must also be reversed.
The other issues raised on appeal become moot as a result of this court's determination of the issues discussed.
Judgment reversed and cause remanded with directions to set aside the judgment and dismiss the action.
COYTE and PIERCE, JJ., concur.