Opinion
July 17, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Robert Ausenhus, Loveland, for plaintiff-appellant.
Houtchens, Houtchens & Dooley, John J. Dooley, Greeley, for defendant-appellee.
DWYER, Judge.
Leo E. Bakel, plaintiff-appellant, brought this action against Colorado Farm Bureau Mutual Insurance Company, defendant-appellee, to recover damages consisting of attorney's fees incurred by him in defending an action which he alleges defendant was obligated to defend under an insurance contract between the parties. On motion of defendant, the trial court entered summary judgment in favor of the defendant and plaintiff has appealed. We affirm.
The facts are undisputed. Plaintiff, who operates a farm in Larimer County, Colorado, purchased a comprehensive liability insurance policy from the defendant which included coverage for liability for bodily injury, sickness, or disease, including death resulting therefrom, sustained by any farm employee while engaged as such in the employment of the insured. The policy provided that defendant would defend any suit brought against the plaintiff in which plaintiff might become obligated to pay damages. The policy contained an exclusionary provision which provided that the policy does not cover 'bodily injury to or sickness, disease, or death of any employee of the insured while engaged in the employment of the insured, if benefits therefor are either payable or required to be provided under any workmen's compensation law.'
While this policy was in effect, a farm employee of plaintiff filed a claim for benefits under the Workmen's Compensation Act of Colorado alleging that he was injured while engaged in the employment of plaintiff. The plaintiff requested that defendant defend him in the proceedings before the Industrial Commission. Defendant declined on the ground that the claim upon which the action was based was excluded from coverage by the policy. Plaintiff subsequently paid the expense of defending in the action.
Plaintiff contends on appeal that defendant, under the terms of its policy, had an obligation to defend plaintiff against liability in the proceedings brought by the employee because of the fact that defendant knew that agricultural employees were not covered under the Workmen's Compensation Act and that therefore the employee's claim was groundless. This argument is rejected since the asserted claim, valid or invalid, was not within the coverage of the policy. Liability for a claim for benefits under the Workmen's Compensation Act is expressly excluded from the provisions of the policy. Tucker v. Centennial Insurance Co., 247 Cal.App.2d 685, 56 Cal.Rptr. 17. Accordingly, the defendant's refusal to defend against the workmen's compensation action was not a breach of the insurance contract.
Judgment affirmed.
ENOCH and SMITH, JJ., concur.