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Serna v. Kingston Enterprises9/26/2002
rt erred in concluding that her indemnification action was barred by UCATA. We agree.
In dismissing Serna's indemnification claim, the trial court relied upon Brochner v. Western Insurance Co., 724 P.2d 1293, 1296 (Colo. 1986), in which the supreme court held that UCATA had abrogated some indemnity actions, namely those which would require "one of two joint tortfeasors to reimburse the other for the entire amount paid by the other as damages to a party injured as the result of the negligence of both joint tortfeasors." Brochner v. Western Insurance Co., supra, 724 P.2d at 1299.
Here, in their initial complaint against defendant and Serna, the passengers alleged that defendant was liable based only on a theory of respondeat superior, not negligence. Therefore, defendant and Serna were not joint tortfeasors within the meaning of UCATA, and thus, UCATA would not bar Serna's indemnity action against defendant. See Arnold v. Colorado State Hospital, 910 P.2d 104, 107 (Colo. App. 1995); McCall v. Roper, 685 P.2d 230, 232 (Colo. App. 1984).
C. Common Law Indemnity
Defendant argues that, even if not barred by the WCA or UCATA, Serna's indemnity claim must nonetheless fail because there is no realistic prospect of the passengers executing on the judgment entered against her. We agree.
On appeal, a party may defend the judgment of the trial court on any ground supported by the record, regardless of whether that ground was relied upon or even contemplated by the trial court. People v. Eppens, 979 P.2d 14, 22 (Colo. 1999); see also Olsen & Brown v. City of Englewood, 867 P.2d 96, 99 (Colo. App. 1993)("A party may defend the trial court's judgment on grounds not decided by the trial court, as long as the party's rights are not increased."), aff'd, 889 P.2d 673 (Colo. 1995).
Serna's indemnity claim is based not on contract, but on the common law duty of a principal to indemnify its agent for losses incurred by the agent while acting on the principal's behalf. See Johnson Realty v. Bender, 39 P.3d 1215, 1218 (Colo. App. 2001).
"As a general rule, a cause of action for indemnity does not arise until the liability of the party seeking indemnity results in his damage, either through payment of a sum clearly owed or through the injured party's obtaining an enforceable judgment." Perry v. Pioneer Wholesale Supply Co., 681 P.2d 214, 218 (Utah 1984).
In this case, Serna has not paid the judgment against her, and, under the terms of her agreement with the passengers, there is no reason to believe that she ever will. Her settlement agreement stipulated that the passengers would not "execute on any portion of the judgment exceeding the $40,000 tendered through [Serna's insurance provider] so long as [Serna] proceeds with her legal remedies" against defendant. The passengers even agreed to "pay all costs associate with prosecuting Serna's claim, including any attorney's fees incurred."
Serna asserts that her agreement is of a type permitted under Bashor v. Northland Insurance Co., 29 Colo. App. 81, 83-84, 480 P.2d 864, 866 (1970), aff'd, 177 Colo. 463, 494 P.2d 1292 (1972). A Bashor agreement is "a settlement reached between opposing parties after a judgment has been obtained," wherein the "prevailing party agrees not to execute on the judgment in exchange for the defendant's agreement not to appeal the judgment and instead to pursue claims against third parties (and share any recovery with the original plaintiff)." Stone v. Satriana, 41 P.3d 705, 708 n.2 (Colo. 2002).
In the reported Colorado cases to date, Bashor agreements have been used only in cases involving allegations of a breach of an insurer's
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