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Brill v. Hughes5/14/1998
JUDGMENT AFFIRMED
Division IV
Ruland and Vogt, JJ., concur
In this declaratory judgment action arising from the death of the parties' minor daughter, Diana M. Hughes (mother) appeals the summary judgment entered in favor of Richard Brill (father). We affirm.
In 1993, the parties' 15-year-old daughter died intestate when the car in which she was a passenger was involved in a roll-over accident. For her whole life, the daughter resided with and was primarily supported by mother. The vehicle was insured under a policy issued by St. Paul Guardian Insurance Company (insurer). The mother sought uninsured motorist benefits from the insurer after it denied liability coverage for the driver of the vehicle. The insurer agreed to submit to arbitration the issues of whether the parties were legally entitled to damages as a result of the accident and the amount of those damages.
Shortly before the scheduled arbitration, father moved for a temporary restraining order and a preliminary injunction to prevent the arbitration from proceeding. At the same time, he filed this action seeking declaratory relief. The trial court granted the temporary restraining order, and the propriety of that ruling is not before us. Thereafter, father moved for summary judgment on the complaint for declaratory relief asserting, inter alia, that Section 13-21-201(1)(c), C.R.S. 1997, requires that any award made by the arbitration panel is to be shared equally by the parties. The trial court agreed with father and granted the motion. This appeal followed.
I.
First, we address, and reject, mother's contention that the declaratory judgment action was premature because no award of damages had been made by the arbitration panel.
A trial court has jurisdiction to hear a declaratory judgment action only if: (1) the controversy contains a currently justiciable issue or existing legal controversy rather than the mere possibility of a future claim; (2) it will fully and finally resolve the uncertainty and controversy as to all parties with a substantial interest in the matter that could be affected by the judgment; and (3) it is independent of and separable from the underlying action. Constitution Associates v. New Hampshire Insurance Co., 930 P.2d 556 (Colo. 1996).
Generally, the decision whether to permit an anticipatory declaratory judgment action falls within the sound discretion of the trial court. See Troelstrup v. District Court, 712 P.2d 1010 (Colo. 1986).
Here, the declaratory judgment action sought to determine the parties' respective rights to any award of damages issued by the arbitration panel. Contrary to mother's contention, an award of damages in the underlying action is not an absolute prerequisite to a declaratory judgment action. See Constitution Associates v. New Hampshire Insurance Co., supra.
In addition, both mother and father, who were the only parties who had an interest in any award issued by the arbitration panel, were parties to the declaratory judgment action. See Section 13-21-201(1)(c); see also Dewey v. Hardy, 917 P.2d 305 (Colo. App. 1995) (holding that wife should have been made a party for the damage phase of a wrongful death action).
Further, the proper construction of Section 13-21-201(1)(c) presents a question of statutory interpretation that is separate from the issues under the insurance policy to be determined by the arbitration panel. As such, neither party will be unduly prejudiced in the arbitration by resolution of this issue. See Constitution Associates v. New Hampshire Insurance Co., supra.
Lastly, we reject mother's contention that bec
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