Opinion
No. 70-008 (Supreme Court No. 22643)
Decided January 27, 1970.
Action to collect a judgment debt. From a finding that insurance company was not the insurer nor the judgment debtor of plaintiff's judgment debtor, plaintiff appealed.
Affirmed
1. AUTOMOBILES — Dealer's License Plate — On Vehicle — Presumption — Ownership by Dealer. The presence of a dealer's license plate appearing on a motor vehicle raises the presumption that the vehicle belongs to the dealer.
2. EVIDENCE — License Plate — Presumption of Ownership — Rebuttable — Trial Court Finding — Binding on Appellate Court. The presumption of ownership of a motor vehicle by the owner of the license plate appearing thereon is a rebuttable presumption and a finding by the trial court that such presumption was rebutted when supported by competent evidence is binding upon the appellate court.
Error to the District Court of the City and County of Denver, Honorable Sherman G. Finesilver, Judge.
Norton Frickey, Myrick, Criswell Branney, Jorge E. Castillo, for plaintiff in error.
Burnett, Watson Horan, for defendants in error.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
The essential question here concerns the scope of coverage liability of a used car dealer's insurer. To understand the position of the parties as they appear before this court some preamble of the maneuverings at the trial court level is required.
Initially, the plaintiff in error, whom we will designate as "plaintiff," brought suit against Arlene Hartman, which person was the defendant below. She is not an active party to this appeal. The relief sought was damages for injuries inflicted on the minor plaintiff by the negligent driving of Arlene Hartman. A default judgment was entered against Arlene Hartman in the amount of $26,868 with interest in the amount of $998.80 and costs. Following entry of judgment, plaintiff moved under R.C.P. Colo. 60, that Allied Mutual Insurance Company be made to appear before the trial court on the grounds that such company was indebted to the judgment debtor, Arlene Hartman. Allied Mutual Insurance Company is the true defendant in error here, and we shall refer to that company as "Allied." Plaintiff's motion was supported by an affidavit subscribed by one Elmer Sauer who stated, among other things, that he was engaged in the used car business; that he attached his Colorado Dealer's License Tag to the automobile driven by Arlene Hartman and that he was the insured under a "Garage Liability Policy" issued by Allied.
The trial court thereafter ordered Allied to appear before it to answer the statements contained in Elmer Sauer's affidavit. Allied resisted the order pursuant to a motion for relief from order made under R.C.P. Colo. 60. Allied's grounds were that it was not an insurer of nor a judgment debtor of Arlene Hartman. Counsel for Allied and for the plaintiff then stipulated that there was a good faith question as to whether Allied's policy issued to Elmer Sauer did cover the judgment debt of Arlene Hartman and agreed to a determination of this issue by the trial court. It was this question which was then tried to the court.
Plaintiff relies upon the provisions in the policy which state that the coverage extends to:
"The ownership, maintenance or use of the premises for the purpose of an automobile sales agency, * * * and all operations necessary or incidental thereto; and the ownership * * * or use of any automobile in connection with the above defined operations, and the occasional use for other business purposes and the use for non-business purposes of: (1) Any automobile * * * in charge of the named insured and used principally in the defined operations;* * *"
It is the plaintiff's contention that under the quoted portions Allied is liable if the damage complained of arose by reason of: (a) The use or (b) ownership of an automobile in connection with the ownership, maintenance or use of the premises for the purpose of an automobile agency and with any operations incidental thereto; (c) the occasional use for other business purposes of an automobile in charge of the named insured and used principally in connection with the ownership, maintenance or use of a sales agency or with any operations incidental thereto; and (d) the use for non-business purposes of an automobile in charge of the named insured and used principally in connection with the ownership, maintenance or use of a sales agency, and with any operations incidental thereto.
Following hearing, the trial court found in substance that (a) Elmer Sauer had exercised no dominion or control over the automobile, and that merely as an accommodation to Arlene Hartman he placed his dealer's license plates on the automobile; (b) the automobile driver by Arlene Hartman at the time of the accident was not operated in any phase of the business of Elmer Sauer; (c) the automobile driven by Arlene Hartman was never "in charge of" Elmer Sauer so as to enable coverage to occur under Elmer Sauer's insurance policy; (d) Elmer Sauer did not buy or sell the vehicle in question; (e) Arlene Hartman had no business connection with Elmer Sauer, nor was she an employee or agent of Elmer Sauer.
Plaintiff principally ascribes error on the ground that the evidence in the record did not support the above findings and conclusions of the trial court. Also placed in question here by Allied was whether the liability of the insurer in this situation was in any way modified by virtue of the failure to give notice to the insurer, and the effect upon the notification requirement by C.R.S. '53, 13-7-23, the counterpart of which now appears as C.R.S. 1963, 13-7-23.
It is our opinion that the evidence before the trial court sustains its findings and conclusions, and that the judgment should be affirmed unless the fact that the dealer's license plates were on the automobile compels a different result. Deferring that question for the moment, we observe from the record that Elmer Sauer, the plaintiff's principal witness, conceded that, among other things, he had never owned the automobile; he never placed it on his lot for sale purposes; he received no commission from sale of the car; he viewed Arlene Hartman as the owner of the car; and, finally, that he placed his dealer's license plates on the car as an accommodation on to Arlene Hartman until she could secure a change in registration of title to the car. In addition to these statements by Elmer Sauer, there is the testimony of one Schwartz, the original owner of the car and a disinterested party insofar as the outcome of Allied's liability question. According to Schwartz, he had talked to Elmer Sauer concerning his desire to sell the car. Elmer Sauer test-drove the automobile and then stated that he did not wish to purchase the car himself, but that he had a girl friend who would be interested in the car. This person was Arlene Hartman. Under the seller's version, he then showed the car to Arlene Hartman. She agreed to purchase it and subsequently paid him the entire purchase price, at which time he delivered title to the car to her. The seller further testified that after the delivery of title to Arlene Hartman she drove the car to the used car lot of Elmer Sauer and Schwartz removed his license plates from the vehicle. Elmer Sauer thereafter affixed his dealer's license plates to the car, and the automobile was carrying these dealer's license plates at the time of the accident in which the minor plaintiff was injured.
These occurrences remove this case some distance factually from the case of Maryland Casualty Co. v. Heald, 125 Vt. 116, 211 A.2d 177, relied upon heavily by plaintiff. In that case the facts established that the dealer would receive a commission from the car sale if it were ultimately bought by the prospective purchaser who was driving the car at the time it was involved in an accident. In that case the dealer was an active participant in the possible car sale.
Bearing even more strongly upon the question of Allied's liability than the participation of Elmer Sauer in the purchase and sale of the car is a determination as to whether Elmer Sauer ever held actual title to the automobile driven by Arlene Hartman. On such fact there is, admittedly, a conflict of testimony. It was the plaintiff's contention during the hearing and on appeal that title to the automobile which was driven by Arlene Hartman was at one time held by Elmer Sauer. The trial court resolved this issue against the plaintiff; and in view of the testimony of Schwartz, the original owner of the car, that he delivered the title to the car directly to Arlene Hartman, and the admissions of Elmer Sauer that he never had any ownership of the car nor took title to it, we feel that the trial court finding in regard to this question should not be disturbed. Andersen-Randolph v. Taylor, 146 Colo. 170, 361 P.2d 142.
Under the circumstances of this case, it is our opinion that the mere placement by Elmer Sauer of his dealer's license plates on the car does not in and of itself impeach the trial court's findings and conclusions that the car was not subjected to his ownership, committed to his business use, or placed in his charge and control principally for business purposes. It is true, as urged by plaintiff, that there is substantial authority that a dealer's license plate appearing on a motor vehicle raises a presumption that the vehicle belongs to the owner of the license plate, i.e., the dealer. Annot., 27 A.L.R.2d 167.
The jurisdictions meeting this question view such presumption as rebuttable. Annot., 27 A.L.R.2d 180, 182. The trial court felt the evidence before it rebutted such presumption. From an examination of the record we feel that its finding was supported by evidence. We therefore, view that determination as conclusive upon this court upon review. Andersen-Randolph v. Taylor, 146 Colo. 170, 361 P.2d 142, Harvey v. Irvin, 156 Colo. 391, 401 P.2d 266, Schwenk v. Bolis, 157 Colo. 392, 402 P.2d 643.
The question of Allied's liability as an insurer having been resolved in Allied's favor and against plaintiff, it is unnecessary to consider the questions raised concerning notification to Allied.
The judgment is affirmed.
JUDGE DWYER and JUDGE ENOCH concur.