Opinion
No. 73-225
Decided May 29, 1974. Rehearing denied July 2, 1974. Certiorari granted September 9, 1974.
Holder of note secured by certain corporate securities brought action against bank alleging negligence and breach of trust in returning those securities to the debtors on the note. Third-party complaint by bank to recover from debtors any judgment entered against it in favor of plaintiffs was dismissed, and bank appealed.
Affirmed
1. INDEMNITY — Third-Party Complaint — Properly Dismissed — Payment By Bank — Not Relieve — Debtors' Liability — To Plaintiff. In situation where holder of note secured by certain corporate securities brought action against bank for bank's alleged negligence and breach of trust in returning those securities to the debtors on the note, the payment by the bank on the claims asserted against it by plaintiffs would not relieve the debtors of their liability on the note; thus, absent an agreement to the contrary, the bank has no claim against the debtors based on subrogation, unjust enrichment, or indemnity, and thus the bank's third-party complaint against the debtors was properly dismissed.
Appeal from the District Court of the City and County of Denver, Honorable George M. McNamara, Judge.
Holme, Roberts Owen, Donald K. Bain, Alan L. Talesnick, for third-party plaintiff-appellant.
Robinson Robinson, Thomas M. Sullivan, for third-party defendants-appellees.
Defendant United Bank of Denver (United Bank) appeals from a judgment dismissing its third-party complaint against Raymond and Belva Shavlik. We affirm.
Plaintiff Alice Loveland initiated this case by her complaint against United Bank to recover damages for alleged negligence and breach of trust in returning certain corporate securities to the Shavliks. Loveland's complaint alleged the following sequence of events.
The Shavliks were indebted to United Bank upon a promissory note. At the same time, the Shavliks were indebted to Loveland and Clarence Button on a promissory note in the principal amount of $20,000, and this note was past due and unpaid. Both notes were secured by certain corporate securities which were in the possession of United Bank, as holder of the first lien upon the securities. On September 24, 1965, the United Bank sold that part of the securities necessary to liquidate the Shavliks' note to the Bank; United Bank returned the balance of the securities to Raymond Shavlik. As of the date of sale, the corporate securities returned to the Shavliks had a market value of $13,000. Loveland and Button, who was added as an involuntary plaintiff, requested damages in that amount, together with interest and costs.
United Bank answered, raising various affirmative defenses and also filed a third-party complaint against the Shavliks. This complaint alleged, in effect, that if United Bank wrongfully returned the securities to the Shavliks, then the Shavliks were liable to the United Bank in the amount of any damages awarded plaintiffs because the Shavliks were primarily liable on the note to plaintiffs.
The Shavliks entered their appearance and moved for dismissal of the third-party complaint on the basis that it failed to state a claim on which relief could be granted. The trial court granted the motion and then entered a final judgment on this issue pursuant to C.R.C.P. 54(b).
In this appeal, United Bank contends that the trial court's ruling was erroneous because if it is liable to plaintiffs, then the Shavliks are liable to United Bank under the principles of either subrogation, unjust enrichment, or indemnity. We disagree.
If plaintiffs are to recover from United Bank, such recovery must be predicated upon the breach of a duty owed plaintiffs by the Bank. However, recovery by the Bank from the Shavliks on the theory of subrogation presupposes that United Bank in satisfying the damage claim of plaintiffs also satisfies a liability of Shavliks (in the amount of the damages paid) to plaintiffs, thereby giving United Bank a right against the Shavliks to recoup its loss. See Cobbey v. Peterson, 89 Colo. 350, 3 P.2d 298. Recovery for unjust enrichment assumes that the Shavliks are benefited by United Bank's payment of any damage claim to plaintiffs. See Dass v. Epplen, 162 Colo. 60, 424 P.2d 779. However, the liability of the Shavliks to plaintiffs on the note is not affected by payment of any claim arising out of a breach of an alleged duty owed by the Bank to plaintiffs. Federal Deposit Insurance Corp. v. Beeney, 34 Colo. App. 23, 521 P.2d 1270.
[1] Recovery on the theory of indemnity presupposes that United Bank satisfies an obligation of the Shavliks which Shavliks are primarily obligated to pay. See Jacobson v. Dahlberg, 171 Colo. 42, 464 P.2d 298. As stated above, payment by the Bank on the claims asserted here would not relieve the Shavliks of their liability. Federal Deposit Insurance Corp. v. Beeney, supra. Hence, absent any agreement to the contrary, United Bank has no claim against Shavliks based on subrogation, unjust enrichment, or indemnity.
The judgment is affirmed.
JUDGE PIERCE and JUDGE SMITH concur.