Opinion
Rehearing Denied Jan. 30, 1973.
Page 419
Robert W. Hansen, Denver, for appellant Fire Ins. Exchange.
Victor E. DeMouth, Golden, for appellant Don Harmon.
Kripke, Carrigan & Dufty, P.C., Kenneth N. Kirpke, Denver, for appellees.
SMITH, Judge.
When a December windstorm damaged the chimney of his home, plaintiff Philip Weaver notified his insurance company by telephone and requested that the chimney be repaired. John Novotny, senior property claims representative for defendant Fire Insurance Exchange, contacted defendant Don Harmon, a contractor who did a great deal of work for the insurance company. Novotny asked Harmon to inspect the damage and estimate the cost of repair. Harmon went to the Weaver home, inspected the damage, and conversed with Mr. Weaver. Mr. Weaver and Harmon decided the best and most permanent way to repair the chimney was to lower it below the damaged area. Harmon informed Mr. Weaver that the chimney would be repaired during the next instance of good weather. No estimate of cost was ever given to Mr. Weaver. Don Harmon then discussed the project with his brother, Robert, who agreed to do the repairs. It was Don Harmon's intention to pay his brother for the work of the repair and bill the insurance company for the job.
Robert Harmon repaired the chimney. Two days after the repair had been completed, plaintiffs were discovered in their home, helpless from the effects of carbon monoxide poisoning. Plaintiffs were hospitalized for varying periods for injuries sustained from the prolonged exposure to carbon monoxide.
Plaintiffs' amended complaint asserted that Don Harmon was negligent in repairing the chimney on the Weaver residence and that Fire Insurance Exchange was negligent in hiring and authorizing Don Harmon to make the repairs to plaintiffs' chimney. The negligent repair of the chimney was alleged to have caused the presence of carbon monoxide in plaintiffs' residence and was averred to be the proximate cause of plaintiffs' injuries. Trial to a jury resulted in a verdict for plaintiffs.
Defendant Fire Insurance Exchange claims that the verdicts should be set aside because plaintiffs did not sustain the burden of proving that an agency relationship existed between Fire Insurance Exchange and Don Harmon. Defendant Don Harmon similarly argues that an agency relationship was not proven between him and Robert Harmon. However, if the insurance company assumed direct responsibility for the repair of the chimney, the nature of its relationship to the Harmons is irrelevant to a determination of its liability.
There was sufficient evidence from which the jury could have concluded that, after being notified of the damage to plaintiffs' chimney, defendant insurance company made all subsequent arrangements, including authorizing Don Harmon to do the necessary repair work. In so doing, the defendant insurance company assumed the duty of having the repairs made with due care.
The jury clearly did not believe that the insurance company contacted Mr. Weaver and told him that they would reimburse him for the reasonable repair of the chimney done by a contractor of his own choosing. Once the insurance company had acted in such a way as to cause the Weavers reasonably to believe that it was assuming the responsibility for the repair of the chimney, it had the duty to complete the repair with due care. Buerkle v. Superior Court, 59 Cal.2d 370, 29 Cal.Rptr. 509, 379 P.2d 941; State Farm Mutual Automobile Insurance Co. v. Dodd, 276 Ala. 410, 162 So.2d 621.
The repair was not effected with due care, and therefore the insurance company violated its duty to plaintiffs. Where a party has contracted to do a certain task and has hired an independent contractor for the project, that party may not escape liability for damages accruing as a result of the performance of that task even where the damages are the result of negligence by the independent contractor. Simpson v. Digiallonardo, 29 Colo.App. 556, 488 P.2d 208.
As we find no merit in defendants' contention of error, the judgment is affirmed.
DWYER and PIERCE, JJ., concur.