Opinion
No. 78-646
Decided November 2, 1978. Rehearing denied November 16, 1978. Certiorari granted January 29, 1979.
Pedestrian injured by uninsured motorist sought to use terms of rental agreement and provisions of No Fault Act to impose liability on defendant who had rented a car to him. Trial court granted defendant summary judgment, and plaintiff appealed.
Affirmed
1. AUTOMOBILES — Lesser of Automobile — Not Liable — Terms of Agreement — To Lessee — Injured as Pedestrian. Lesser of automobile was not obligated, either by lease agreement or by No Fault Act, to provide lessee with away-from-rented-car protection and was, therefore, not liable for any damages resulting from the lessee's injuries incurred as a pedestrian.
Appeal from the District Court of the County of Adams, Honorable Abraham Bowling, Judge.
Butler, Landrum, Pierce Turner, P.C., Donald L. Banghart, for plaintiff-appellant.
DeMoulin, Anderson, Campbell Laugesen, Richard W. Langesen, for defendant-appellee.
Plaintiff Nelson rented an automobile from defendant Strode Motors, Inc. (Strode). Nelson had no insurance of his own, but the rental agreement provided that:
"Lessee is covered by an automobile liability insurance policy, copy of which will be made available for inspection upon request by the Lessee. Said policy contains a $1,000,000.00 combined single limit for each occurrence covering bodily injuries and property damage. Lessee being an insured under said policy agrees to comply with and be bound by all terms, conditions and restrictions thereof . . . ." (emphasis supplied)
Nelson as a pedestrian was struck and injured by a car driven by an uninsured motorist. He brought this breach of contract action against Strode on the ground that Strode was liable to him for not complying with the above contractual provision, and also on the ground that Strode failed to comply with the "No Fault" insurance law, § 10-4-701, et seq., C.R.S. 1973. Summary judgment was entered in favor of Strode. Nelson appeals, and we affirm.
Strode maintains that its own master policy was in full compliance with the rental contract insurance provision, and that, therefore, there was no breach of contract. Under this policy, users of Strode's automobiles were insured against liability for bodily injuries and property damage, but there was no coverage providing no-fault benefits for personal injuries to an insured as a pedestrian arising out of an accident not involving the rented car.
Nelson contends that there was no policy in existence that met the requirements of the contract provision. For purposes of this opinion, we will assume that Strode did not cover Nelson as an insured with such a policy.
Under the no-fault insurance law, if no such policy existed, Strode would be personally liable for payment of the no-fault benefits prescribed in § 10-4-706(1)(b) to (e), C.R.S. 1973, for accidental bodily injury "sustained by the named insured when injured in an accident involving any motor vehicle" or "sustained by any other person . . . while a pedestrian if injured in an accident involving the [ insured] motor vehicle." Section 10-4-707(1)(a) and (c), C.R.S. 1973. (emphasis supplied). The rented car was not involved in the accident. Thus, even a complying policy would not cover injuries sustained by Nelson as a pedestrian, unless he was the "named insured."
However, the rental contract provided that Nelson, as lessee, was to be "an insured" under what was obviously an already existing policy in which Strode was the named insured. He was entitled to no more under the statute.
[1] Thus we hold that Strode was not obligated, either by contract or by statute, to provide Nelson with away-from-rented-vehicle pedestrian insurance coverage, and, therefore, is not liable for any damages resulting from his injuries incurred as a pedestrian. Summary judgment was properly entered.
Judgment affirmed.
JUDGE PIERCE and JUDGE RULAND concur.