Opinion
Sept. 3, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 1131
No appearance for plaintiff-appellee.
Cross, Christensen & Price, Randolph W. Starr, Loveland, for defendants-appellants.
KELLY, Judge.
Debra Schleiger sued her former employers, Nicholson, Benson, and Harper, for damages based on their alleged negligence in failing to pay the premium for her medical and hospital insurance. The trial court entered judgment against the defendants jointly and severally. Benson and Harper appeal, and the judgment is reversed as to them only.
The trial court's findings of fact are supported by the record and appellants do not challenge their accuracy. Rather, appellants contend, among other things, that the uncontroverted evidence and the findings show that Schleiger did not establish her claim of negligence against them. We agree.
In her complaint, Schleiger alleged that the defendants had obtained for her and had agreed to pay the first premium on a health insurance policy, that they had negligently failed to pay the premium before its due date, and that as a result, she became liable for certain medical and hospital expenses. Defendants denied that they had failed to pay the premium. The trial court found that the defendants had provided plaintiff with their checks for the premium prior to the due date and that they had been received by the agent for the insurance company.
The defendants shared office space, but were not partners.
This finding disposed of the case against Benson and Harper under the issues framed by the pleadings. Nevertheless, the trial court made the further findings, which were supported by the evidence, that Benson, after the due date of the premium, had procured the return of the defendants' three checks from the agent for the insurance company, and that the defendants failed to notify Schleiger that she did not have coverage. Using these facts as a springboard, the trial court concluded that defendants were negligent in failing to notify Schleiger of the absence of coverage and that this negligence was the cause of her damages.
This conclusion totally overlooks the testimony of Nicholson, elicited in Schleiger's case in chief, and found as a fact by the trial court, that Nicholson told Schleiger that the defendants' three checks had been returned and that he was sending his own check to cover the full amount of the premium. Recovery against Benson and Harper cannot be based on their failure to notify Schleiger of what she already knew.
It was uncontroverted that Nicholson did send his check for the full premium, but the check was returned to him, together with a letter stating that it had been received too late to reinstate the policy. Similarly, recovery against Benson and Harper cannot be predicated on Nicholson's failure to notify Schleiger of the rejection of his tendered premium payment. Consequently, the judgment against Benson and Harper cannot stand, since Schleiger failed to prove her claim against them. See Smuggler-Union Mining Co. v. Kent, 47 Colo. 320, 112 P. 223.
In view of this disposition, we need not address appellants' other contentions. This conclusion, however, does not reach the judgment against Nicholson, who has not appealed and as to whom different evidence was elicited.
The judgment, insofar as it applies to Harper and Benson, is reversed.
ENOCH and SMITH, JJ., concur.