Opinion
No. 75-364
Decided February 26, 1976.
Garnishment action against insurer of parents whose minor son, as a joint venturer had been permitted by another joint venturer to drive his father's car and had thereafter negligently injured plaintiff. Insurer appealed from trial court finding of liability to plaintiff to extent of policy limits.
Reversed
1. GARNISHMENT — Negligence Action Finding — Insureds' Son — No Permission to Drive — Binding on Parties — Policy Required Permission — No Coverage — Judgment Not Stand. In garnishment action against insurer of parents whose minor son, as a joint venturer, had been permitted by another joint venturer to drive that participant's father's car and had thereafter negligently injured plaintiff, the parties are bound by finding in trial of negligence action to the effect that insureds' son had neither express nor implied permission of car's owner to drive it; hence, insurance policy that provided coverage only if car was used with permission of its owner did not afford coverage to insureds' son, and accordingly garnishment judgment against the insurer could not stand.
Appeal from the District Court of the City and County of Denver, Honorable Henry E. Santo, Judge.
Paul D. Renner, Stephen D. Dawson, for plaintiff-appellee.
Wood, Ris Hames, P.C., William K. Ris, Donald L. Cook, for garnishee-appellant.
Division III.
Having obtained a personal injury judgment against parties insured by Farmers Insurance Exchange, plaintiff, Bilsten, brought garnishment proceedings against Farmers to recover on the judgment. From a judgment holding it liable to the extent of its policy coverage, $15,000, Farmer appeals. We reverse.
Defendants Jackie Porter, Twyla Porter, their son Tim Porter, and Hubert Albrandt were found liable to Katherine Bilsten for $18,000 for injuries sustained by her in a car accident caused by 16-year-old Tim Porter who was driving a car belonging to Hubert Albrandt's father, Raymond Albrandt. Tim was found liable as driver of the car, his parents were held liable on their statutory responsibility for Tim under § 42-2-107, C.R.S. 1973, and 15-year-old Hubert Albrandt was held responsible as a joint venturer with Tim. Hubert's father, the owner of the car, was dismissed from the case because the evidence disclosed that he had not given Tim permission to drive the car. The judgment was affirmed on appeal in Bilsten v. Porter, 33 Colo. App. 208, 516 P.2d 656, wherein the facts are more fully set forth.
Farmers' liability policy issued to Jackie and Twyla Porter covered the insureds with respect to a non-owned automobile "provided the actual use of the non-owned automobile is with the permission of the owner," The trial court in the present action found that because the son, Hubert, was a joint venturer, this constituted permission by the father for the use of the car. Farmers contends that this finding is unsupported by the law and the evidence. We agree with this contention.
Although appellate courts are generally bound by the factual findings of a trial court, the rule is not applicable where such findings clearly are not supported by the evidence. Hewett v. Samsonite Corp., 32 Colo. App. 150, 507 P.2d 1119. Such is the case here. In the original trial the claim against Raymond Albrandt was dismissed because it was proven that he had not given his son, Hubert, permission to use the auto. This judgment was not appealed, and the parties are bound thereby.
[1] Further the trial court misinterpreted the language in Bilsten v. Porter, supra, upon which it relied for its finding that permission for use had been given. In Bilsten we held that the fact that the owner of the car had not given his son permission to use the car, did not prevent the son from being a joint venturer in the unauthorized enterprise. In fact we specifically held that the relationship with a third party had no bearing on the issue of the existence of a joint venture. The fact that the owner's son, who had no permission to use the car, gave Tim permission to drive, does not create an implied permission from the owner. State Farm Mutual Automobile Ins. Co. v. Strang, 27 Utah 2d 362, 496 P.2d 707. Thus there is no support in law or fact for the trial court's finding that the owner of the car had given permission for its use at the time of the accident. There was therefore no coverage under this policy, and the appellee's claim against the garnishee should have been dismissed.
Appellee's contention that the pertinent section of the policy is ambiguous is without merit. The proviso which requires permission of the owner of a non-owned auto for its use in order to extend coverage to a non-owned automobile clearly applies to "the named insured or a relative." See Bright v. Ohio Casualty Ins. Co., 444 F.2d 1341 (6th Cir.). Further, this court has previously determined that no ambiguity arises because a limitation of liability occurs as a definition and not as an exclusion. Urtado v. Shupe, 33 Colo. App. 162, 517 P.2d 1357.
In view of our above conclusion, Farmers' other contention relative to primary coverage is moot. Nor need we address the contention of Farmers that Bilsten, because of a "loan agreement" between her and Albrandt's insurer, was no longer the real party in interest.
The judgment is reversed and the cause remanded with directions to dismiss the writ.
JUDGE PIERCE and JUDGE SMITH concur.