Opinion
No. 75-690
Decided May 5, 1977. Rehearing denied May 26, 1977. Certiorari granted August 22, 1977.
In slander of title action against title insurance company resulting from incident in which insurer issued title insurance to party seeking to redeem property also sought by plaintiffs, thereby allowing that party to obtain mortgage financing and to redeem, the trial court entered judgment for insurer and plaintiffs appealed.
Affirmed
1. TORTS — Claimant to Property — Title Insurer — Concerted Activity — Liability — Joint and Several. Where one claimant to an interest in certain disputed real property actively participated in procuring a title commitment from a title insurer, which commitment made no reference to the other claimant's possible interest in the property, the issue of the commitment was not a separate and independent act by the insurer; but was the consequence of concerted activity by both the insurer and the one claimant; hence, if a tort was committed, both the insurer and claimant who sought the commitment were jointly and severally liable for damages to the other claimant.
2. RELEASE — General — No Explicit Reservation — All Tortfeasors — Released. Where release is of a general nature and there is no implicit reservation of a right to continue against other tortfeasors, those other tortfeasors are also released.
3. Intention of Parties — Determinative — Release of Other Tortfeasors — — Limited — Language of Release — Other Circumstances — Other Extrinsic Evidence — Excluded. The intention of the parties to a release determines whether the release of other tortfeasors is affected thereby, but, this intention must appear in the express language of the release, or must be apparent from the objective circumstances surrounding the release transactions; consequently, extrinsic evidence of any other character regarding intent, such as evidence of the intent of the party executing the release, is properly excluded.
Appeal from the District Court of the City and County of Denver, Honorable Henry E. Santo, Judge.
Rodden Marshall, Marilyn S. Bonner, Paul B. Rodden, for plaintiff-appellants.
Dawson, Nagel, Sherman Howard, Raymond Turner, for defendants and third-party plaintiffs-appellees Standard Title Insurance Co., and Denver Abstract Co.
Plaintiffs, Walter and Bonnie Mills, appeal from a judgment in favor of defendant, Standard Title Insurance Company (Standard), in a slander of title action. We affirm.
The Mills and Charles Crosby were involved in a dispute over the ownership of certain mortgaged real property which had been subjected to a foreclosure sale. Both wished to redeem. In order to finance his redemption, Crosby sought a title commitment from Standard, requesting that the commitment be issued without reflecting the existence of the Mills' right of redemption. Such a commitment was subsequently issued by Standard through its Colorado agent, Denver Abstract Company, but only upon execution by Crosby of an agreement expressly indemnifying Standard from any liability resulting from issuance of the commitment. Crosby was thereafter successful in procuring a mortgage agreement which provided the funds necessary for redemption. The Mills then sued Crosby and the new mortgagee. After Crosby's death, and in the course of settlement of that litigation, the Mills executed a general release in favor of Crosby's estate.
The Mills subsequently brought this action against Standard premised on the theory that issuance of the commitment constituted disparagement of title resulting in damage to the Mills insofar as it enabled Crosby to obtain financing for redemption. Standard brought in Crosby's estate based on the indemnification agreement. Trial was to the court. The court found that Crosby and Standard were joint tortfeasors and that the release in favor of Crosby's estate was a complete defense to the present action. We uphold the trial court's judgment on this basis, without reaching the issue of whether tort of slander of title occurred.
I.
The Mills' first contention is that the trial court erred in finding that Standard and Crosby were joint tortfeasors, arguing that Crosby was not an active participant in issuance of the title commitment, see Miller v. Singer, 131 Colo. 112, 279 P.2d 846 (1955), and did not owe to the Mills the same duty as did Standard. We reject this contention.
[1] Crosby actively participated in procuring the title commitment. Without his participation the commitment would not have been issued. Both Crosby and Standard owed the same duty to the Mills: not to maliciously utter slanderous false statements damaging to the Mills property interest. McNichols v. Conejos-K Corp., 29 Colo. App. 205, 482 P.2d 432 (1971). See also Colorado Real Estate Development, Inc. v. Sternberg, 164 Colo. 184, 433 P.2d 341 (1967). The issuance of the commitment was not a separate and independent act. It was the consequence of concerted activity by both Standard and Crosby. Cf. Sanchez v. George Irvin Chevrolet Co., 31 Colo. App. 320, 502 P.2d 87 (1972). If a tort was committed, they were jointly and severally liable for damages to the Mills. Miller v. Singer, supra.
The Mills argue that Standard's duty differed because of its status as an insurer, citing Union Mutual Life Co. v. Bailey, 99 Colo. 570, 64 P.2d 1267 (1937), and they urge that public policy prevents alteration of this duty through an indemnification agreement. However, it was the Mills' execution of the release in favor of Crosby's estate, and not the existence of the indemnification agreement, which the trial court found freed Standard from liability. Hence, no public policy considerations were involved. See Union Mutual Life Co. v. Bailey, supra.
II.
[2] The Mills next challenge the court's finding that the release protected Standard from liability. The release did not reserve any right of action against Standard. Where, as here, the release is of a general nature, and there is no implicit preservation of a right to continue against other tortfeasors, those other tortfeasors are also released. Farmers Elevator Co. v. Morgan, 172 Colo. 545, 474 P.2d 617 (1970); Cox v. Pearl Investment Co., 168 Colo. 67, 450 P.2d 60 (1969). See also Hyzak v. Greybar, 36 Colo. App. 164, 537 P.2d 1089 (1975).
III.
The Mills' final contention is that the trial court erred in refusing to permit presentation of some extrinsic evidence regarding the Mills' intent in execution of the release. No error was committed.
[3] We agree with the Mills that the intention of the parties to the release determines whether the release of other tortfeasors is effected. See Cox v. Pearl Investment Co., supra. Cf. Price v. Baker, 143 Colo. 264, 352 P.2d 90 (1959). This intention must appear in the express language of the release, or must be apparent from the objective circumstances surrounding the release transaction, such as non-dismissal of the claim against the other tortfeasors. See Farmers Elevator Co. v. Morgan, supra. Extrinsic evidence of any other character regarding intent, such as was offered here, is properly excluded. Cox v. Pearl Investment Co., supra.
Judgment affirmed.
JUDGE RULAND and JUDGE KELLY concur.