Opinion
Rehearing Denied Aug. 12, 1975.
Page 352
Traylor, Palo, Cowan & Arnold, Charles J. Traylor, David L. McKinley, Grand Junction, for defendant-appellee Allstate Ins. Co.
John C. Lafferty, Grand Junction, for plaintiffs-appellants.
Younge, Hockensmith, Griffin & Robb, F. M. Hockensmith, James M. Robb, Grand Junction, for defendant-appellee Farmers Ins. Group.
PIERCE, Judge.
Louise Coca was killed in an automobile accident while a passenger in a car owned by her and driven by defendant John Bennie Lajan. A wrongful death action was subsequently brought against Lujan by the plaintiff, guardian of decedent's five minor children. Plaintiff appeals from an adverse declaratory judgment in favor of the defendant insurance companies on the question of liability. We affirm.
Upon motion, consented to by counsel for plaintiff, Farmers, Insurance Group (Farmers) and Allstate Insurance Company (Allstate), liability insurers of decedent and Lujan respectively, became parties to the lawsuit, and the action was converted to a declaratory judgment action under C.R.C.P. 57, in order to determine the liability of said companies, if any, with regard to the alleged wrongful death.
The matter was heard and determined, however, as though on a motion for Summary judgment, and was decided on the basis of certain exhibits and the depositions of the defendant Lujan. The result was an entry of summary judgment in favor of the defendant insurance companies. Plaintiff filed a motion for new trial, or alternatively, to alter or amend summary judgment. The trial court subsequently entered an order setting aside the order of summary judgment, reopening the declaratory judgment proceedings, and providing for the presentation of further evidence by the parties.
Counsel for the plaintiff then filed a notice of appeal, and a motion for stay of further proceedings. That motion was denied, and, after presentation of other evidence, a declaratory judgment in favor of the defendant insurance companies was entered. The trial court found that coverage was excluded by the terms of the insurance policies.
I.
Plaintiff first contends that the trial court erred in entering a declaratory judgment in favor of the defendant insurance companies over the objection of plaintiff's counsel following entry and vacation of the summary judgment. He argues that it was prejudicial error for the court to consider evidence presented at the earlier hearing on summary judgment, asserting that he made no objections to certain evidentiary matters at the earlier proceedings because he believed that the conflicting nature of the evidence there presented precluded the entry of summary judgment.
We must reject this contention. Counsel for the plaintiff originally agreed to the use of declaratory proceedings in order to determine the possible liabilities of the insurance companies, and it is undisputed that the use of a declaratory judgment is proper in such cases. O'Herron v. State Farm Mutual Automobile Insurance Co., 156 Colo. 164, 397 P.2d 227; Beeson v. State Automobile & Casualty Underwriters, 32 Colo.App. 62, 508 P.2d 402. Although summary judgment was then erroneously entered, the effect of the order setting aside that judgment was to resubmit the matter to the trier of fact, and it was not error for the trial court then to hear the matter in the manner originally agreed upon.
Although the evidence considered in the earlier summary judgment proceeding was used at the later hearing, plaintiff raised no specific objection to the reception of any such evidence at either juncture. See Van Hise v. Trino, 143 Colo. 179, 352 P.2d 284.
II.
We also agree with the conclusions of the trial court that neither policy of insurance covers the subject accident.
The Farmers policy insuring the decedent in the principal use of the vehicle involved in the fatal accident excludes coverage for 'the liability of any insured for bodily injury to . . . the named insured . . ..' With respect to the insured automobile, the term 'insured' is defined as:
'(1) the named insured, and
'(2) any other person while using such automobile and any other person or organization legally responsible for its use, provided the actual use of such automobile is by the named insured or with his permission . . ..'
Since at the time of the accident Lujan was using the automobile with permission of the named insured, the decedent, he is included within the definition of an 'insured' for the purposes of this policy. See Newark Insurance Co. v. State Farm Mutual Automobile Insurance Co., 164 Colo. 498, 436 P.2d 353. And thus, his liability for the death of the decedent, the named insured, is specifically excluded from coverage by the Farmers policy. As to the policy issued by Allstate, insuring Lujan, it provided that coverage did not apply
'to any automobile owned by or furnished for regular use to either the named insured or a member of the same household other than a private chauffeur or domestic servant of such named insured or spouse . . ..'
The evidence fully supports the conclusion of the trial court that this clause excluded coverage of the subject accident. The named insured under this policy was Lujan, and, on supporting evidence, the court found that the automobile involved in the fatal accident was one 'furnished for regular use' to the named insured.
Furthermore, as an alternative basis for ruling that the Allstate policy did not provide coverage, the trial court found that the automobile involved in the fatal accident was one owned by a 'member of the same household' as the named insured. That finding resulted from a consideration of the appropriate relevant factors, See Iowa National Mutual Insurance Co., v. Boatright, 33 Colo.App. 124, 516 P.2d 439, and was based on adequate supporting evidence. The fact that in an heirship proceeding, Lujan had failed to establish that decedent and Lujan were husband and wife was not res judicata as to whether they were members of the same household--the two issues are not synonymous. See Pomeroy v. Waitkus, Colo., 517 P.2d 396.
Plaintiff also argues that the exclusions at issue should be construed in favor of the insured; however the clauses excluding coverage in these policies are clear and unambiguous, and we will therefore not limit their effect or give the language a forced construction against the insurer. Standard Mine Insurance Co., Ltd., v. Peck, 140 Colo. 56, 342 P.2d 661; Howard Associates, Inc. v. Home Indemnity Co., 34 Colo.App. 390, 528 P.2d 980. Since the contracts are clear, this court is not free to rewrite these policies of insurance by adding implied provisions. See Urtado v. Allstate Insurance Co., Colo., 528 P.2d 222; Iowa Mutual Insurance Co. v. Addy, 132 Colo. 202, 286 P.2d 622.
III.
Plaintiff further alleges as error the denial of his request for production of a written statement made by Lujan to an Allstate investigator shortly after the accident. This statement apparently was to be used to refresh Lujan's memory at his deposition. The trial court granted Allstate's request for a protective order with regard to the statement.
Under C.R.C.P. 34(a), a request for production of a document may be made to another party as to any matter within the scope of C.R.C.P. 26(b). This latter rule presently provides that documents prepared by an insurer in anticipation of litigation or for trial are discoverable only upon a showing that the party seeking production has
'substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.' C.R.C.P. 26(b)(3).
The narrowed accessibility of such documents is tempered only by a further provision of C.R.C.P. 26(b)(3) pertaining to the production of statements made by a party, and requested by such party. Where, as here, the request was made not by the party who made the statement, but by an adverse party, a showing of substantial need and inability to obtain the material contained in the statement by other means was necessary. Here no such showing was made by the plaintiff. His counsel did not attend or have a representative attend Lujan's deposition, where the subject statement might have been inspected. Nor did the plaintiff undertake independent discovery of any sort in preparation for trial. The only action taken was the bare request for production, unsupported by even the most conclusory recitation of need. A party does not have an unqualified right to examine such a statement. C.R.C.P. 34 must be complied with. Cf. McCoy v. District Court, 126 Colo. 32, 246 P.2d 619. Under these circumstances, it was not error for the trial court to refuse to compel production of the statement, and to grant a protective order in favor of the defendant.
Iv.
A final contention of the plaintiff is that the trial court erred in admitting certain testimony alleged to be hearsay. Again we disagree. Where, as here, trial was to the court without a jury, there is a presumption that all hearsay evidence was disregarded by the trial court in reaching its decision. Bill Dreiling Motor Co. v. Travelers Indemnity Co., 29 Colo.App. 163, 482 P.2d 999. There being sufficient competent evidence in the record to support the findings of the trial court even in the absence of the questioned testimony, we need not reach a decision on its admissibility. Vanadium Corp. v. Wesco Stores, Co., 135 Colo. 77, 308 P.2d 1011.
Judgment affirmed.
COYTE and BERMAN, JJ., concur.