Continental Casualty Company, an Illinois Corporation, Appellant, v. Fireman's Fund Insurance Company, a California Corporation, Appellee.fireman's Fund Insurance Company, a California Corporation, Cross-appellant, v. Continental Casualty Company, an Illinois Corporation, Cross-appellee, 403 F.2d 291 (10th Cir. 1968)

COPYRIGHT MATERIAL OMITTED Wesley H. Doan, Denver, Colo. (Yegge, Hall, Treece & Evans, Denver, Colo., on the briefs), for Continental Casualty Co.

Kenneth C. Groves, and V. G. Seavy, Jr., Denver, Colo., for Fireman's Fund Ins. Co.

Before MURRAH, Chief Judge, BREITENSTEIN, Circuit Judge, and DELEHANT, Senior District Judge.^* 

DELEHANT, Senior District Judge.

It is in order, preliminarily to identify the insurance corporation parties litigant, and their respective insureds; and to disclose, at least in a general and summarized way, the setting out of which the suit arose, whose determination in the trial court is presently under review. Thus, one may the better understand what alone is now directly before the court; for it is rooted in antecedent and presently terminated litigation in a state court, and, more remotely, in the historical framework of that earlier controversy.

From time to time, October 7, 1963 will be mentioned herein, after the manner of a time critical to this litigation. On that date the misadventure occurred which underlies this suit, as well as all antecedent litigation relevant hereto, infra.

Then, and for some time theretofore, one Harry Linch, as lessee, operated at 7201 Grandview Avenue, Arvada, Colorado, an oil and gasoline service station, characterized as a "Standard Service Station." The main building wherein he operated such station had been erected at an earlier date by one Victor C. Ries under a contractual agreement by him with Cook Bros. Oil Co., pursuant to plans therefor provided or approved by Standard Oil Company and The American Oil Company. But, as lessee, Harry Linch was at the critical time in the public and active management of the business of the service station. As a feature of such business, and from time to time therein, he purchased and acquired petroleum products for resale to his customers, and probably for incidental other purposes, from Petroleum Products Company, which, out of deference to counsel herein and to the trial court from which this case has come to this court, infra, and for the sake of brevity, is later herein ordinarily referred to as "Petco."

In the operation of his business, supra, Harry Linch, under the name and style of "Harry Linch Standard Service, 7201 Grandview, Arvada, Colorado," procured and had in operation from April 25, 1963 to April 25, 1964 (thus, inclusive of October 7, 1963) a garage liability policy of insurance issued to him, as "insured," by Fireman's Fund Insurance Company, a corporation, hereinafter referred to either as "Fund" or "The Fund", but generally as "Fireman's Fund," whose home office was in San Francisco, California, as insurer. A copy of such policy of insurance is attached to the AGREED STATEMENT OF FACTS duly executed and filed in the United States District Court for the District of Colorado in Case No. 66-C-90, Civil therein, out of which these appeals directly arise, infra, and constitutes a part of the record herein. In and by that policy, its coverage is defined clearly and adequately, but at a length rather too great to warrant its complete duplication or extended restatement herein.

Continental Casualty Company, an Illinois corporation, herein generally referred to as "Continental," under date of October 17, 1962, issued, effective from 12:01 standard time, October 1, 1962 until cancelled, its COMPREHENSIVE AUTOMOBILE LIABILITY POLICY NO. CCA 2659167, as insurer, to and in favor of THE PERMIAN CORPORATION AND/OR ANY OF ITS AFFILIATES AND SUBSIDIARIES, the latter explicitly including PETROLEUM TRANSPORT COMPANY (i. e. PETCO), as insureds. A copy of that policy is also attached to the AGREED STATEMENT OF FACTS in Case No. 66-C-90 in the United States District Court for the District of Colorado, infra. That policy included, among other coverage, the following insuring and conditioning language:

"INSURING AGREEMENTS

1. Coverage A — Bodily Injury Liability

To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness, or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of any automobile.

Coverage B — Property Damage Liability

To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of the ownership, maintenance or use of any automobile.

* * * * * *

"III Definition of Insured

The unqualified word `insured' includes the named insured and also includes any person while using an owned automobile or a hired automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission, and any executive officer of the named insured with respect to the use of a non-owned automobile in the business of the named insured. * * *

* * * * * *

"4. Purposes of Use Defined

* * * * * *

(c) Use of an automobile includes the loading and unloading thereof."

Attention is also directed to the language applicable to coverage, and the limitation thereof, in (a) the AGREED STATEMENT OF FACTS, and (b) the MEMORANDUM OPINION AND ORDER, both Infra.

On or shortly before October 7, 1963, Harry Linch, doing business as Harry Linch Standard Service, 7201 Grandview, Arvada, Colorado, in the course of his business purchased and ordered from PETCO approximately 6000 gallons of liquid gasoline for transportation to, and delivery at, such service station by Petco on October 7, 1963. Petco was then, and for some years theretofore had been engaged in the business, among other things, of transporting and delivering to service stations petroleum products, including gasoline, and had theretofore made like transportation and delivery to the station just identified, though in quantities smaller than 6,000 gallons. At that station deliveries of such gasoline were usually made through its unloading and introduction by an employee of the seller thereof into underground storage tanks in the Linch station premises, and south of the service station building, from which tanks the fluid was thereafter, and as its use was required, removed by the station's gasoline pumps. Those underground tanks were equipped, as a part thereof, with a venting system, concerning which see the AGREED STATEMENT OF FACTS, infra.

At the time of, and during the interval of, the delivery by Petco to Harry Linch of such gasoline, one Chris Eugene Glunz, an employee of McBride Lighting Company, and acting in that capacity, was lawfully at the Linch station, and was engaged therein in the cleaning of lighting fixtures located in such premises. Thus present and engaged, he then considered it to be necessary for him to use, and he did use, the station's restroom facilities. Such use of the restroom facilities, at least partially concurred, in point of time, with the arrival at the station, and the unloading operations in respect, of the Petco truck and its gasoline cargo content. While engaged in his utilization of the station's restroom facilities, and being present personally in the restroom, Mr. Glunz ignited a match for the purpose of lighting a cigarette. An explosion and subsequent fire ensued, in consequence whereof, Glunz sustained physical injuries, vide infra.

After the foregoing explosion and fire, and prior to May 3, 1965, Chris Eugene Glunz, as plaintiff, filed in the District Court of Jefferson County, Colorado, a civil action against Harry Linch, Cook Bros. Oil Co., a Colorado corporation, The American Oil Company, a Maryland corporation, authorized to do and doing business in Colorado, Standard Oil Company, an Indiana corporation, authorized to do and doing business in Colorado, and Petroleum Transport Company, a Colorado corporation, being Civil Action No. 20151 in the District Court in and for the County of Jefferson, State of Colorado. Therein, Harry Linch was sued as the actual operator of the service station; Cook Bros. Oil Co. was sued as the alleged owner, on October 7, 1963, and as an entity which, on said date maintained and asserted an interest (beyond the exact knowledge of Mr. Glunz), of and in the real estate on which the service station was and is located, together with the Standard Service Station itself, its pumps, tanks, pipes, vents, and other facilities and equipment; The American Oil Company, in the capacity of the alleged corporate parent of Standard Oil Company, and Standard Oil Company, in the capacity of a corporate entity thus erected by the American Oil Company, were sued together, as corporations thus connected, which were allegedly engaged in the business of manufacturing, refining, distributing and selling petroleum products, including, but not limited to, gasoline, motor oils, greases and related by-products, in the course whereof, The American Oil Company distributed and sold its manufactured products within the State of Colorado, by and through Standard Oil Company, a division of The American Oil Company, and it was charged that such gasoline, motor oils and related petroleum products, so manufactured, were sold and offered for sale in the manner and form set out in the complaint in such suit at the Standard Service Station so operated by Harry Linch at 7201 Grandview, Arvada, Colorado, in furtherance of an arrangement generally asserted but without exact definition, in the complaint. In that action, Chris Eugene Glunz, therefore, appears to have undertaken to obtain a judgment for the entire amount of his alleged injuries and damages, said in the complaint to have been $100,000.00, together with interest and costs of suit, as against all of the several defendants, and each of them, and thus to impose the liability for such injuries upon each such defendant on the basis of his or its alleged articulation into, and participation in, the business so operated by Harry Linch.

The record before this court contains copies of the answers to that complaint of Chris Eugene Glunz, tendered separately by Harry Linch and by Petco, as defendants to such action.

Briefly recalled, the answer in that case of Harry Linch (in the so-called second defense thereof, wherein expressly his general answer to the complaint was made) admitted the corporate existence of Cook Bros. Oil Co., and its ownership of, and possession and assertion of an interest in, the foregoing Standard Service Station in Arvada, the real estate whereon it was located, and its pumps, tanks, pipes, vents and other equipment; the corporate origin in separate other states, and the Colorado domestication and engagement in business in Colorado, of each of The American Oil Company and Standard Oil Company; their intercorporate relationship, supra, and their engagement in the manufacture, refining, distribution and sale in Colorado of petroleum products; the initial erection on the service station site by The American Oil Company, pursuant to plans prepared and devised by it, of the Standard Service Station located thereon, and the sale thereafter at such station by The American Oil Company, through Standard Oil Company, of their petroleum products, thereby retaining and exercising a control over such premises, which admission, however, is expressly made with the reservation of a denial by the pleader that such acts were performed by The American Oil Company and Standard Oil Company "pursuant to and in accordance with a valid and effective lease or supplemental agreement;" that Petco was and is a Colorado corporation authorized to do business in Colorado, and "on October 7, 1963 and at all times thereafter in such complaint complained of, was engaged, among other activities, in transporting, hauling, delivering and unloading, in its transport trucks the products of the defendants, The American Oil Company and Standard Oil Company, upon the order, direction and mandate of the defendants, Cook Bros. Oil Co. and/or Harry Linch, into the storage tanks and other facilities situate on the Standard Service Station hereinabove described," to which admission, however, a reservation or exception was asserted by the pleader's explicit denial that any of the products of the defendant, The American Oil Company and Standard Oil Company were transported, hauled, delivered, or unloaded at this defendant's (i. e. Harry Linch's) order, direction or mandate, into the storage tanks or other facilities situate on the Standard Service Station described in the complaint, which emphasized denial, in the light of the admission to which it was subjoined may, not inappropriately, be regarded as somewhat obscure in respect of its precise thrust; the personal residence in Colorado, and the Colorado citizenship of Chris Eugene Glunz, and his presence on October 7, 1963, and at all times pertinent to the then suit, on the premises of the above described Standard Service Station, as a business invitee of all of the defendants in said suit except Petco, though with the knowledge of Petco, to which admission, however, Harry Linch expressly interposed a qualifying denial that Chris Eugene Glunz "was a business invitee of" Harry Linch "on October 7, 1963 or at any other time pertinent hereto." And in such second defense to the complaint, the defendant Harry Linch, in his answer denied generally all averments of the complaint of Mr. Glunz not therein specifically answered. In such answer's second defense, Harry Linch also made a generalized admission of paragraphs 12, 14 and 19 of the Glunz complaint "except as otherwise alleged herein." But those three paragraphs of the complaint are merely the incorporation by reference into as many separately stated and numbered causes of action in the complaint, of GENERAL ALLEGATIONS of the complaint set forth preliminary to, and, through such incorporation effecting economy of verbiage, in the statement of what the pleader in Mr. Glunz' complaint appears to have conceived as separate bases whereon to rest his single demand for damages, finally set out in a prayer common to all such causes of action.

In Harry Linch's answer, he also, (a) by way of a first defense, alleged that the complaint failed to state a claim against the defendant, Harry Linch, "upon which relief can be granted to the plaintiff herein;" (b) by way of a third defense, alleged that if the plaintiff were injured in any of the manners stated in the complaint, such injuries, if any, were the direct and proximate result of the sole or contributory negligence of the plaintiff; (c) by way of a fourth defense, alleged that if the plaintiff were injured in any of the manners stated in the complaint, such injuries, if any, were the direct or proximate result of an unavoidable accident or Act of God; and (d) by way of a fifth defense, alleged that if the plaintiff were injured in any of the manners stated in the complaint, such injuries, if any, were the direct or proximate result of plaintiff voluntarily assuming a risk of which he had full knowledge and appreciation.

At this point it is mentioned that, after the institution of Civil Action No. 20151, in the District Court of Jefferson County, Colorado, by the plaintiff therein, Chris Eugene Glunz, against the defendants thereto already identified herein, Victor G. Ries, the contractor who, as a building contractor, erected the Standard Service Station building was brought into the action as an additional, or third party, defendant at the behest, and upon the initiative, of the defendant therein, Harry Linch. It may be added, however, that, upon the record before this court, no issue or controversy in respect of Victor G. Ries as a party litigant hereto, appears to have been tendered and preserved for the present consideration or determination of this court.

The separate answer in the case of Chris Eugene Glunz, plaintiff, vs. Harry Linch, et al, being CIVIL ACTION NO. 20151, in the District Court in and for the County of Jefferson, State of Colorado, filed by Petroleum Transport Company, i. e. Petco, as a defendant therein, was and is brief. That circumstance is measurably, though not entirely, attributable to the circumstance that, of the four separate and numbered alleged causes of action in the complaint of the plaintiff, Chris Eugene Glunz, only one, namely, the THIRD, is explicitly directed against that defendant. It is, of course, readily recognized that, in the GENERAL ALLEGATIONS, in eleven consecutively numbered paragraphs, wherewith the separate and numbered alleged causes of action of the complaint were and are premised, the plaintiff had made many allegations identifying and describing the several defendants to that suit, and attributing to one or more of them either historical information or conduct, asserted to have relevance to the case. In that behalf, the following observations are separately made touching each of those general allegations, excepting that numbered 6. In item 1 of the general allegations, the plaintiff, Glunz, alleged the corporate status, domicile and business of the defendant Cook Bros. Oil Co., by way of relating that defendant to the operation of the Standard Service Station herein mentioned, and to the occurrence of October 7, 1963. In item 2 of the general allegations, the plaintiff, Glunz set out the corporate domicile and Colorado domestication, and the right to transact business in Colorado, of each of the two corporate defendants identified as The American Oil Company and Standard Oil Company, and their corporate relationship each to the other, as already mentioned herein; and that item was and is followed by item 3 wherein were alleged the engagement of those two corporations in the business of manufacturing, refining, distributing and selling petroleum products (The American Oil Company, in such distribution and sale within the state of Colorado allegedly acting by and through Standard Oil Company, and the sale of such products allegedly being carried on, among other places, at such Standard Service Station). In item 4 of the general allegations, the plaintiff, Glunz, asserted that, in accordance with a lease agreement dated February 9, 1962 and recorded at an identified page of the records of the Clerk and Recorder of Jefferson County, Colorado, the defendant, The American Oil Company, according to plans and specifications by it prepared, devised, arranged, adopted and approved, erected and built the Standard Service Station already mentioned herein, and thereafter and until October 7, 1963, offered for sale and sold at such Standard Service Station its products, by and through Standard Oil Company, and "by virtue thereof, remained in full possession and control of said lots and parcels of land, the Standard Service Station thereon erected and its facilities, and continued to have under its exclusive control, management, operation, maintenance and possession all of the buildings, tanks, pumps, lines, pipes, vents and other devices and equipment therein situate, all in accordance with the terms and provisions of the lease agreement hereinabove described, as supplemented, amended, extended, complemented and continued by virtue of a certain agreement in writing referred to, and incorporated in, and made a part of such lease but not otherwise published, recorded, circulated or disclosed." In item 5 of the general allegations, the plaintiff Glunz alleged that at all pertinent times, and, particularly, on October 7, 1963, Harry Linch was in the actual custody of the premises, the Standard Service Station and the equipment and facilities therein and thereto attached as the operator thereof, pursuant to and in accordance with a license, permission or authority from the defendants, The American Oil Company, Standard Oil Company, and Cook Bros. Oil Co., and, for and on their behalf, did sell and offer for sale to the general public the products manufactured, refined, sold and distributed as hereinbefore referred to. In Item 7 of the general allegations, the plaintiff Glunz alleged that at all pertinent times he was, and at the time of his complaint remained and was, a resident and citizen (sic) of the city of Englewood, Colorado, and was on October 7, 1963, and at all other pertinent times, a business invitee of all of the defendants, save and except the defendant Petroleum Transport Co., upon the premises and its facilities hereinabove described, but whose presence upon said premises was known to the defendant Petroleum Transport Co. In item 8 of the general allegations, the plaintiff Glunz alleged "that at or about two o'clock P.M. on October 7, 1963 he entered the Standard Service Station, and, with the consent and approval of all of the defendants, began to use the restroom therein kept and maintained for the use and accommodation of the defendants' customers and business invitees, when, suddenly, unexpectedly, and without warning, an explosion and subsequent fire occurred therein as the direct and proximate result of which he suffered the many serious, permanent and disabling injuries hereinafter detailed;" that the explosion and subsequent fire, and the injuries of which the plaintiff now complains were the direct and proximate result of the wrongful, unlawful, negligent, careless and reckless acts and actions of the defendants and each of them, acting separately and in concert with each other. In item 9 of the general allegations, the plaintiff Glunz alleged in detail his claimed injuries and the particulars thereof. In item 10 of the general allegations, the plaintiff Glunz, in general terms, alleged his subjection in consequence of such injuries to expenses for medicine, medical items, hospitalization, physicians' and surgeons' fees, nurses' hire, drugs and the like for treatment and attempted cure, to his great financial damage and loss, and averred, on information and belief, that some of his injuries were and are permanent, and had prevented, and would thereafter prevent, him from attending to his usual and daily occupation. And in item 11 of the general allegations, the plaintiff alleged that by reason of his alleged injuries he had been damaged in the sum of one hundred thousand ($100,000.00) dollars.

In item 6 (at this point herein adverted to out of its numerical sequence in the complaint) of the general allegations of the complaint of the plaintiff Glunz, he made in a single sentence the following allegations against the defendant in that suit, Petroleum Transport, Co. i. e. Petco:

"That the defendant, Petroleum Transport Co., at all times pertinent hereto, was and is a Colorado corporation, organized and existing under and by virtue of the laws of the State of Colorado to do business within the state under the name and style of `Petco,' with its principal place of business at 1700 Broadway in the city and county of Denver, State of Colorado, and which, on October 7, 1963, and at all times hereinafter complained of, was engaged in the transporting, hauling, delivering and unloading, in its transport trucks, the products of the defendants, The American Oil Company and Standard Oil Company, upon the order, direction and mandate of the defendants, Cook Bros. Oil Co., and/or Harry Linch into the storage tanks and other facilities situate on the Standard Service Station hereinbefore described."

Briefly reflected, the answer of Petco to the complaint of the plaintiff Glunz, in Civil Action No. 20151 in the District Court in and for the County of Jefferson, State of Colorado, duly filed in that action, (1) as to paragraphs 1, 2, 3, 4, 5, 7, 8, 9, 10 and 11, supra, of the general allegations in the complaint of the plaintiff Glunz therein, disclaimed Petco's possession of knowledge or information sufficient to form a belief as to their truth, and, therefore, denied the allegations of those paragraphs; (2) admitted the allegation of paragraph (6) of such general allegations, as quoted supra; (3) as to the first, second and fourth causes of action set out in the complaint in said action in the state court of Colorado filed therein in by its plaintiff Glunz, none of which counts undertook to state a cause of action against Petco, initially and correctly declared its position that each of said first, second and fourth counts failed to state a claim for relief against Petco; and, thereafter, asserted that "if it could be considered that they do in anywise state a claim for relief against this defendant," i. e. Petco, "this defendant denies every allegation thereof and incorporates herein and adopts by reference his (sic) affirmative defenses to the plaintiff's third cause of action as though set forth herein word by word," (vide infra); made Petco's answer to the third cause of action of the complaint in said Civil Action No. 20151 wherein, through paragraphs 17 and 18 of that complaint, the claim of its plaintiff Glunz against Petco, and its attempted articulation into the causation of the explosion and subsequent fire, had been asserted. It is here observed that in asserting in his complaint his claim for damages against Petco — and Petco only — Glunz in paragraphs numbered 17 and 18 of his complaint had alleged in this language that:

"17. The allegations and averments made and contained in paragraphs 1 through 11, inclusive, hereinbefore set forth, are hereby adopted to the same intent and purpose as if again restated and realleged.

"18. That, at or about 1:30 p. m., on October 7, 1963, this defendant" (elsewhere clearly disclosed as meaning Petco) "upon the order of and under the direction, supervision and instruction of the other defendants, negligently, carelessly, recklessly and wrongfully began the unloading, emptying, discharging and transferring of large volumes of gasoline, to-wit: six thousand (6,000) gallons from its transport trucks into the leaky, faulty, unlawful, defective, broken, deteriorated, worn and inadequate installations, storage tanks, mains, lines, vents and other conduits situate at the above-described Standard Service Station; that said unloading, emptying, discharging and transferring continued, uninterruptedly, until 2 p. m. on said date, and, as the direct result thereof, large quantities of gas and gasoline vapors were permitted to escape, which combined with large quantities of gas and gas vapors then being permitted to escape from the facilities of the station and accumulate, collect and gather in and about the premises, the station and the rest room therein contained."

Responding to that third cause of action of the complaint in the state court of the plaintiff Glunz, therein, the defendant, Petco, in that civil action, as to the quoted paragraphs 17 and 18 of the complaint therein, pleaded in this language:

"1. In answer to paragraph 17 of the plaintiff's third cause of action," (sic) "the defendant incorporates herein and adopts by reference his" (sic) "answers to the allegations and averments made and contained in paragraphs 1 through 11, inclusive, of the plaintiff's general allegations, as though set forth herein word by word."

"2. In answer to Paragraph 18 of the plaintiff's third cause of action, the defendant" (sic) "denies the same."

Here it is noted in passing that the pleader's allusions in the most recently quoted language to paragraphs 17 and 18 "of the plaintiff's third cause of action" is inexact. They are not paragraphs 17 and 18 "of the plaintiff's third cause of action," but are, rather, those numbered two paragraphs of the entire complaint of the plaintiff Glunz therein, and they are the only numbered paragraphs contained in that complaint's special reference to his third cause of action.

Finally, in its answer in that Civil Action No. 20151 in the state court, Petco, as a defendant to that action alleged:

first, "that the plaintiff's complaint failed to state a claim upon which relief can be granted;" secondly, "that the injuries and damages sustained by the plaintiff" i. e. Chris Eugene Glunz, "if any, were incurred as a result of the plaintiff's own sole or contributory negligence;" thirdly, that such injuries and damages, if any, "were incurred as a result of the negligence of some person or persons other than" Petco, when Petco "had no control or right of control and for whom" Petco "had no responsibility for the action of such person or persons;" fourthly, that such injuries and damages, if any, "were incurred as a result of the negligence of the plaintiff," Glunz, "concurring with the negligence of some person or persons other than" Petco "the plaintiff and other unknown person or persons over whom" Petco "had no right, duty, or obligation to control, and which negligence proximately caused the injuries and damages of the plaintiff," Glunz; fifthly, that such injuries and damages, if any, "were incurred as a result of any" (sic) "unavoidable accident;" and sixthly, that such injuries and damages, if any "were incurred as a result of the plaintiff's unreasonable assumption of risk of harm and injury when he knew or should have known of the condition which existed on the premises where he allegedly sustained his injury or injuries and his unreasonable and reckless failure to heed such conditions."

Finally, Petco, as an answering defendant in Civil Action No. 20151 in the state court concluded its answer to the complaint of the plaintiff therein, Glunz, with a prayer for judgment in behalf of Petco and against the plaintiff Glunz, and for its costs and for general equitable relief.

It is readily apparent that the foregoing extended gleaning from the pleadings in Civil Action No. 20151 in the state court is limited to the contents of the complaint therein of the plaintiff, Chris Eugene Glunz, on the one hand, and, on the other hand, of the separate answers of the defendants therein, (a) Harry Linch, and (b) Petco. The record before this court does not, and need not, disclose, from the files and record in that earlier state court litigation, or otherwise, information from which a comprehensive and complete reflection of its pleadings might be assembled. For the ensuing litigation in the United States District Court for the District of Colorado, out of which the appeal and cross-appeal to this court now considered have directly and entirely arisen, is rooted in the issues made upon the complaint and the separate answers of the defendants Harry Linch and Petco in the earlier state court litigation, and the submission and determination in that court of those issues. That submission and determination, so far as they appear to possess present pertinence, will now be adverted to briefly. Such abbreviation has been rendered both possible and appropriate by the course in the United States District Court of the litigation arising out of the state court suit, but subsequently initiated and conducted in the United State District Court for the District of Colorado.

The record before this court on this appeal, and cross appeal, discloses clearly that in the state court action of Glunz v. Linch et al. supra, the defense of the defendant, Harry Linch, was undertaken and presented in the state court by his insurer, Fireman's Fund; and that in such state court action, the defense of the defendant, Petco, was undertaken and presented in the state court by its insurer, Continental.

On May 3, 1965, and after the institution by Chris Eugene Glunz of his action in the state court against Harry Linch and others, supra, and acting on the basis of information touching the existence and supposed coverage of Continental's policy of insurance in favor of Petco (among other beneficiaries) supra, Harry Linch, acting by and through his attorney, Kenneth C. Groves (representing Harry Linch under employment by his insurer, Fireman's Fund), by a written letter addressed and transmitted to the Claims Manager in Denver, Colorado, of Continental, advised Continental of the existence of the claim of Glunz and, upon the asserted premise that in the circumstance, Harry Linch was entitled to coverage, primary in character, as an additional insured under Continental's policy in favor of Petco, made demand upon Continental to assume the defense of Harry Linch in the state court action, and to pay any judgment rendered against Harry Linch, and costs, attorney's fees, and all other litigation expenses. As of May 6, 1965 (in the asserted absence of the Claims Manager of Continental) response was made to that communication by one William G. Kemme, Claim Supervisor of Continental, declining the request made in behalf of Harry Linch. On the following day, May 7, 1965, the said Kenneth C. Groves addressed an acknowledgment and reply to William G. Kemme, claim supervisor of Continental, warning him and, through him Continental, that the rejection in behalf of Continental of the request theretofore made of it (immediately, supra) was not accepted, and of the imminence of suit against Continental for protection of Harry Linch. On May 13, 1965, the claim manager of Continental, by letter to Kenneth C. Groves, explicitly confirmed Continental's earlier denial of liability so made in its behalf by William G. Kemme. (This court observes the allegation of paragraph 19 of the complaint in the United States District Court for the District of Colorado identifying May 17, 1965 as the date of the rejection of Kenneth C. Groves' letter of May 7, 1965. That disparity in date is regarded as immaterial.)

Thereupon, Fireman's Fund proceeded with the defense of Harry Linch in the state court case. Trial was had of that case in the District Court of Jefferson County, Colorado. While the limited references, in the record of this court upon these appeals, to the course of the trial in the state court, are inadequate to support an informed and categorical declaration here touching the disposition in the state court of the issues in the state court (a) as between the plaintiff therein, Glunz, and each of the several defendants thereto, or (b) as between any of the several defendants thereto, it is made satisfactorily to appear that in that state court action,

(1) a directed verdict of dismissal of the claim of the plaintiff Glunz therein against the defendant, Standard Oil Company of Indiana, therein was ordered and entered;

(2) a directed verdict of dismissal of the claim of the plaintiff Glunz therein against the defendant, Petroleum Transport Company, i. e. Petco, was ordered and entered;

(3) after the trial had proceeded to a point where all of the testimony had been taken, the defendant, Harry Linch, permitted a judgment to be entered against him in the sum of $5,000.00, which judgment was entered therein on January 13, 1966 against him by virtue of his stipulation and agreement;

(4) on January 14, 1966, such judgment was paid in full and satisfied. Such payment of the judgment, inclusive of costs in the action was actually made by Fireman's Fund in behalf of Harry Linch. Fireman's Fund, in addition to $5,000.00 (the amount of said judgment) incurred obligation for $6,946.57 for court costs and attorney's fees for services rendered in that case;

(5) Certificate of Satisfaction was entered in said state court on February 8, 1966.

Before the entry of such judgment, counsel for Continental at Denver, Colorado, were, by counsel for Fireman's Fund, advised of the course thus far of the litigation in the state court, including the then contemplated entry of judgment for $5,000.00 against Harry Linch, and given opportunity to object thereto, or otherwise participate therein (see more detailed reflection in the AGREED STATEMENT OF FACTS, infra), which tender was rejected. Promptly thereafter, in behalf of Harry Linch, and particularly of Fireman's Fund, and on January 14, 1966, Kenneth C. Groves, as attorney for said Linch and Fireman's Fund, addressed and transmitted to Wesley H. Doan, Esq., Denver, Colorado, counsel herein for Continental, a letter and therein, inter alia, advised him briefly of the course of the antecedent litigation, demanded that Continental pay the judgment and "ancillary costs" within the execution period of ten days, and signified the intention of Fireman's Fund, unless such payments were made, to institute suit on account thereof against Continental. That requested payment was not made. The action in the United States District Court for the District of Colorado, being case numbered 66-C-90 Civil, ensued, the complaint therein having been filed during February, 1966. The instant appellate proceeding involves an appeal and a cross-appeal taken from the judgment made and given in such case numbered 66-C-90 Civil. The issues in that case, as made by the pleadings in it, are next disclosed. Fireman's Fund Insurance Company, as plaintiff, and Continental Casualty Company, as defendant, were and are the only parties to that case, and, on appeal, are the only parties to this appellate proceeding.

In its complaint in the case just mentioned, Fireman's Fund alleged the existence of a controversy in amount exceeding $10,000.00 exclusive of interest and costs; the existence of Fireman's Fund as a California corporation, and its authorization to do, and actual doing of, business in Colorado, at all times pertinent to the suit; and the existence of Continental as an Illinois corporation, and its authorization to do, and actual doing of, business in Colorado at all times pertinent to the suit. It is next alleged therein that, prior to October 7, 1963 (thereafter in such complaint generally referred to as "date of accident") Continental issued a policy of insurance to Petco, in such complaint identified as a Colorado corporation known as Petroleum Transport Company, which policy was in full force and effect on the date of accident; and averred, on information and belief, that such policy of insurance provided, inter alia, (a) that Continental, as insurer, agreed with Petco, its assured, in consideration of the payment of premiums and in reliance upon the statement in the declaration, and subject to the limits of liability, conditions, exclusions and other terms of said policy, that the insurer would pay on behalf of the insured, all sums which the insured became obligated to pay as damages because of bodily injury, sickness or disease, including death resulting therefrom, sustained by any person, and caused by any accident arising out of the ownership, maintenance or use of an automobile, as the term automobile is therein defined; and the insurer further agreed to defend any suit against the insured seeking damages on account thereof; (b) that the unqualified word, "insured," included the named insured, and also included any person while using the automobile, and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with its permission; and (e) that the use of an automobile included the loading and unloading thereof.

In its complaint just mentioned, Fireman's Fund further alleged that (d) on the date of accident Petco was the lessee of a tractor-trailer, which, at the time of said accident, was being operated by its agent, servant and employee, and within the regular course of his employment; (e) that on the date of accident, Petco hauled, through its agent, servant and employee, certain petroleum products, to-wit, approximately 6,000 gallons of liquid gasoline, American Oil Company brand, premium and regular, to a Standard Service Station located at 7201 Grandview Ave., Arvada, Colorado, then being leased and operated under the sole and exclusive control of Harry Linch; (f) that at the time of the accident, Chris Eugene Glunz was then and there present on the premises of the Standard Service Station located at 7201 Grandview Ave., Arvada, Colorado, for the purpose of performing certain business services for Harry Linch; (g) that, just prior to the time of the accident, Petco, through its agent, servant and employee, and at the direction of, and with the permission of, Harry Linch, commenced to unload the liquid gasoline thus mentioned and described into the underground storage tanks located on said premises.

In its complaint so mentioned, Fireman's Fund then alleged, (h) that during the course of said unloading operation, and as a result thereof, a quantity of gasoline fumes or vapors was created, which fumes or vapors entered the service station building where Chris Eugene Glunz was then present; (i) that, during the continuance of such unloading operation, such fumes or vapors, were ignited, and an explosion occurred from which Chris Eugene Glunz sustained certain personal injuries as a result thereof; and (j) that the tractor-trailer thus described was scheduled or otherwise designated in, and covered by, the policy of insurance described in paragraph 3 (sic) of the complaint, (which allusion to paragraph 3, is by this court believed to be a pleader's mistake in the light of the actual description of the policy in paragraph 4, rather than paragraph 3, of the complaint).

In its complaint so mentioned, Fireman's Fund proceeded to allege (k) that some time before May 3, 1965, Chris Eugene Glunz commenced in the District Court in and for Jefferson County, Colorado, Civil Action No. 20151 to recover the sum of $100,000.00 in damages allegedly resulting from his personal injuries above referred to, from and against, among others, Harry Linch; (1) that Harry Linch undertook the defense of such action through Fireman's Fund which, as theretofore in such complaint averred, had issued its policy of general liability insurance to Harry Linch, which was in effect on the date of accident; (m) that some time before May 3, 1965, Harry Linch, through Fireman's Fund, discovered that Continental had in full force and effect its policy of insurance to Petco, hereinbefore referred to, and that the coverage provided thereunder was primary in connection with the suit in the District Court in and for Jefferson County, Colorado, brought by Chris Eugene Glunz as plaintiff, and against Harry Linch and others as defendants, supra; that as a result thereof, on May 3, 1965 a letter was sent to Continental (a copy whereof is set out at length as an exhibit to, and incorporated by reference into, Fireman's Fund's complaint) which, in substance, stated that Harry Linch was entitled to protection as an insured under the policy issued to Petco by Continental, and demanding that Continental assume the defense of Harry Linch, or, alternatively, pay any judgment rendered against him, including court costs, and all other costs, expenses and attorney's fees incurred as a result of, and in the defense of, said action; (n) that said demand was rejected on May 6, 1965 by Continental without reason or explanation; (o) that on May 7, 1965 Continental was again sent a letter (a copy whereof is set out at length as an exhibit to, and incorporated by reference into Fireman's Fund's complaint) whereby Continental was advised of the necessary action to enforce the terms and coverages contained in said policy, which would be timely instituted if the requested assumption of Harry Linch's defense were not made, and whereby Continental was further advised that Fireman's Fund looked to Continental for full indemnification for any judgment rendered against Harry Linch, and all costs expended in the defense of such suit, including attorney's fees; (p) that the tender of defense, last hereinbefore described, was, by Continental, again refused on May 17, 1965; (q) that, as a result of Continental's refusal, Harry Linch, through Fireman's Fund, was required to continue the defense of Harry Linch against the suit of Chris Eugene Glunz, including the trial of that action; (r) that the trial of such action resulted in judgment against Harry Linch in the amount of $5,000.00, which judgment was satisfied by Harry Linch through Fireman's Fund, and copies of such satisfaction and of certification were attached as exhibits to, and by reference made a part of the complaint of Fireman's Fund; and that, by the terms of its policy of insurance in favor of Harry Linch, Fireman's Fund was and is subrogated to Harry Linch's rights against Continental; and (s) that, before the entry of said judgment, agents and attorneys for Continental were advised of the progress of the trial, and given an opportunity to object to any action taken by Harry Linch through Fireman's Fund, and, further, to take any action on its own behalf which it deemed necessary or prudent; that Continental, through its agents and attorneys, made no objection and took no action with respect to the judgment which was subsequently rendered; that, in a letter dated January 14, 1966, of which a copy is attached to and made a part of the complaint of Fireman's Fund, said Fireman's Fund extended to Continental a period of time equivalent to the statutory stay of execution within which to pay such judgment to Chris Eugene Glunz, but there was no response to such letter, and Continental failed to satisfy such judgment as therein requested by Fireman's Fund; (t) that, as a result of Continental's failure, neglect and refusal to assume and meet its obligations under the terms and provisions of its policy, and to assume and accept full responsibility for the defense of Harry Linch in the action against him brought in the state court by Chris Eugene Glunz, Fireman's Fund has incurred special damages itemized as follows:

Miscellaneous itemized expenses incident to the litigation and the preparation for, and conduct of the trial inclusive of court costs and reporting services, aggregating $ 546.57 Lynch & Groves, attorneys' fee 6,400.00 Judgment (supra) 5,000.00 __________ TOTAL $11,946.57

And in a concluding averment in its complaint, Fireman's Fund, obviously repetitively, but probably by way of summary, asserted that Harry Linch had coverage under the policy of Continental on the date of accident; that Continental's refusal and neglect to assume and meet its obligation thereunder has breached its contract, to the damage of Fireman's Fund, which was and is subrogated to the rights of Harry Linch in the amount of $11,946.57.

Finally, in its complaint, the plaintiff Fireman's Fund, prayed for judgment against the defendant Continental "in the amount of $11,946.57, plus costs of this action, and interest from the date of filing hereof." (Which, obscurely stamped in the present record of that complaint, appears to be February 10, 1966, but may be February 18, 1966.)

In the foregoing summary of Fireman's Fund's complaint, this court has undertaken to reflect the substance only of the allegations of such complaint, and thereby, with a fair measure of accuracy, to abbreviate. So doing, it has attempted to preserve the sequence in which the subject matter of the complaint is set out therein. Moreover, it has separated items of allegation by the intrusion of parenthesized letters of the alphabet rather than by the use of numerals for that purpose in the manner of the complaint.

To that complaint of the plaintiff Fireman's Fund, and apparently on February 28, 1966, the defendant Continental filed its answer which is now summarized.

First, by the categorical admission of the allegations of the complaint's paragraphs numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, 18 and 19, Continental, in its answer admits such complaint's assertion (1) the presence of a controversy exceeding the sum of $10,000.00 exclusive of interest and costs; (2) the alleged corporate domicile in California and authorization to do, and doing of, business in Colorado, of Fireman's Fund; (3) the alleged corporate domicile in Illinois and authorization to do, and doing of, business in Colorado, of Continental; (4) Continental's issuance theretofore and before October 7, 1963, the "date of accident" of a policy of insurance to a Colorado corporation, known as Petroleum Transport Corporation, thereafter in the complaint identified as "Petco," which policy was in force on the date of accident; (5) that the policy of insurance last mentioned provided, inter alia, that Continental, as insurer, agreed with Petco, as insured, in consideration of the payment of premiums and in reliance upon the statement in the declaration and subject to the limits of liability, conditions, exclusions and other terms of said policy, that the insurer would pay on behalf of the insured, all sums which the insured became obligated to pay as damages because of bodily injury, sickness or disease, including death resulting therefrom, sustained by any person and caused by any accident arising out of the ownership, maintenance or use of an automobile, as the term automobile is therein defined; and the insurer further agreed to defend any suit against the insured seeking damages on account thereof; (6) that said policy of insurance further provided that the unqualified word, "insured," included the named insured and also included any person while using the automobile, and any person or organization legally responsible for the use thereof, provided the actual use of the automobile was and is by the named insured or with his permission; (7) that said policy of insurance further provides that the use of an automobile includes the loading and unloading thereof; (8) that on the date of the accident Petco was the lessee of a tractor-trailer which was, at the time of said accident, being operated by its agent, servant and employee, and within the regular course of his employment; (9) that, on the date of the accident, Petco hauled, through its agent, servant and employee, certain petroleum products, to-wit, approximately 6,000 gallons of liquid gasoline, American Oil Company brand, premium and regular, to a Standard Service Station located at 7201 Grandview Ave., Arvada, Colorado, then and at that time being leased and operated under the sole and exclusive control of Harry Linch; (10) that, at the time of the accident, Chris Eugene Glunz was then and there present on the premises of Standard Service Station, 7201 Grandview Ave., Arvada, Colorado, for the purpose of performing certain business services for said Harry Linch; (11) that, just before the time of the accident, Petco, through its agent, servant and employee, and at the direction, and with the permission of Harry Linch, commenced to unload the liquid gasoline theretofore hauled to such Standard Service Station, supra, into the underground storage tanks located on said premises; (13) that the tractor-trailer herein described was scheduled, or otherwise designated in or covered by the policy of insurance, so issued by Continental to Petroleum Transport Company, herein referred to as Petco, which was in full force and effect on the date of the accident; (14) that, some time prior to May 3, 1965, the said Chris Eugene Glunz commenced an action in the District Court in and for the county of Jefferson, State of Colorado, entitled Civil Action No. 20151 to recover the sum of $100,000.00 in damages allegedly resulting from the personal injuries referred to above, from and against, among others, Harry Linch; (15) that the said Harry Linch undertook the defense of said action through Fireman's Fund, plaintiff herein, Fireman's Fund having issued its policy of general liability insurance to the said Harry Linch, and which policy was in effect on the date of the accident; (18) that, on May 7, 1965 — and subsequent to the transmittal of a letter of similar general import sent to Continental on May 3, 1965, whose demand had been rejected by Continental on May 6, 1965 (vide infra) — Continental was again sent a letter of which a copy is attached to and made a part of Fireman's Fund's complaint in Case numbered 66-C-90 in the United States District Court for the District of Colorado, wherein Continental was advised of the necessary action to enforce the terms and coverage contained in its policy of insurance to Petco, which would be instituted at the proper time if assumption of Harry Linch's defense were not made by Continental; in the alternative whereto Continental was further advised that Fireman's Fund looked to Continental for full indemnification for any judgment rendered against Harry Linch, and all costs expended in the defense of such suit, including attorney's fees; and (19) that the tender of defense described in the last preceding clause hereof was "again" refused by Continental on May 17, 1965.

The allegations in the complaint of Fireman's Fund, the plaintiff, thus identified in the last preceding, and extended, paragraph hereof are, therefore, to be considered as admitted in their entirety by Continental in its answer to that complaint.

Secondly, by Continental's express denial in its answer of the allegations of paragraphs 12, 17, 20 and 24 of the plaintiff, Fireman's Fund's complaint, Continental is to be understood as denying (12) that, during the course of the unloading operation on the date of the accident, a quantity of gasoline fumes or vapors was created, which fumes or vapors entered the service station building, where said Chris Eugene Glunz was then present; further, and during the continuance of said unloading operation, said fumes or vapors were ignited, and an explosion occurred from which the said Chris Eugene Glunz, sustained certain personal injuries as a result thereof; (17) that the demand upon Continental by letter of Kenneth C. Groves, bearing date May 3, 1965, of which letter a copy is attached to, and made a part of, such complaint, which letter stated in substance that Harry Linch was entitled to protection under the policy issued to Petco by Continental, and demanded that Continental assume the defense of Harry Linch, or, alternatively, pay any judgment rendered against Harry Linch, including court costs and all other costs, expenses and attorney's fees, incurred as a result of, and in defense of the action, was rejected by Continental on May 16, 1965 without reason or explanation (emphasis added); (20) that Harry Linch, through Fireman's Fund, as a result of Continental's refusal, supra, was required to continue the defense of the suit heretofore described, including the trial of said action; and (24) that Harry Linch had coverage under the policy of Continental on the date of the accident, and Continental's refusal and neglect to meet and assume its obligation thereunder breached its contract to the damage in the amount of $11,946.57 of Fireman's Fund, which is subrogated to the rights of Harry Linch.

In further and final direct pleading in its answer to the remaining averments of the complaint of Fireman's Fund against it, Continental (answering paragraph 16 of the complaint) admitted that Harry Linch, through Fireman's Fund acquired some knowledge of the policy of insurance issued by Continental to Petco, denied that such coverage as was provided by that policy was primary in connection with the suit against Harry Linch, mentioned in the complaint, and admitted the receipt of the letter of Kenneth C. Groves to the Claims Manager of Continental, bearing date May 3, 1965; (answering paragraph 21 of the complaint of Fireman's Fund), Continental admitted — though it ought probably to be said that it alleged — that by reason of the voluntary actions of the attorney representing Harry Linch and Fireman's Fund in the state court action, supra, a judgment was entered against Harry Linch in the amount of $5,000.00, which was satisfied, but as to the remaining allegations of Fireman's Fund in Civil Action No. 66-C-90 touching that judgment, to the effect that, by the terms of Fireman's Fund's policy in favor of Harry Linch, Fireman's Fund is subrogated to his rights against Continental, for want of information adequate to support an opinion with respect thereto, Continental denied such allegation or allegations.

Further answering paragraph 22 of such complaint, Continental admitted that its agents and attorneys were advised of the progress of the trial of the Glunz suit in the state court, but denied that they were given an opportunity to object to any action taken by Harry Linch, through Fireman's Fund; and admitted that Continental, through its agents and attorneys, took no action relative to the judgment therein, and that a period of time equivalent to the expiration of the statutory stay of execution was given to Continental to pay that judgment directly to Glunz, and admitted that it did not satisfy the judgment.

And, for asserted want of information adequate to form a belief as to the truth of the allegations in paragraph 23 of the complaint of Fireman's Fund touching the items and amounts of its several alleged elements of special damages, and the aggregate sum thereof, Continental, in its answer, denied such allegation or allegations in its or their entirety.

Finally, by way of affirmative defenses to Fireman's Fund's complaint against Continental, Continental alleged the following positions:

1. That Fireman's Fund's complaint failed to state a claim against Continental on which relief can be granted;

2. That Fireman's Fund voluntarily made payment of a judgment which it voluntarily agreed to allow to be entered against Harry Linch, and has the status of a volunteer paying another's debt, and was and is, therefore, estopped from asserting any claim therefor against Continental;

3. That Fireman's Fund was and is, by its own laches, estopped from asserting any claim against Continental;

4. That Fireman's Fund's insurance policy is primary to any insurance policy of Continental, and Continental owed no duty or legal obligation to Fireman's Fund or Harry Linch to assume the defense of Harry Linch, or to pay any cost incurred by him, or on his behalf, or any judgment incurred by him;

5. That Fireman's Fund failed to mitigate its damages by the negotiation of a settlement of the claim of Glunz against Harry Linch, when reasonable opportunities to do so were available;

6. That any injury or damages incurred by Fireman's Fund in consequence of its contractual obligation to Harry Linch arose, not out of the loading or unloading of the vehicle insured by Continental referred to in Fireman's Fund's complaint, but rather as a result of causes other than the unloading of said truck, and, in fact, were incurred as a result of the negligent operation, maintenance, and use of the building exclusively operated and controlled by Harry Linch, and/or his negligence concurring with the negligence of a person, or of persons, other than Continental, which negligence did not arise as a result of the loading or unloading of the truck insured by Continental;

7. That Continental owed no duty to Harry Linch or to Fireman's Fund under the policy of insurance referred to in Fireman's Fund's complaint in that the proximate cause of the injuries and damages sustained by Chris Eugene Glunz referred to in Fireman's Fund's complaint, was due to the defective construction, design, maintenance, and use of the building operated and controlled by Harry Linch;

8. That in Civil Action No. 20151 in the District Court of Jefferson County, Colorado, wherein Chris Eugene Glunz was the plaintiff and Petroleum Transport Company, i. e. Petco, was a defendant, and Harry Linch was a defendant and third-party plaintiff (vide supra) a judicial determination was made that Petco was not negligent and was not legally responsible to respond in damages to Chris Eugene Glunz, and that said injuries and damages did not arise as a result of the unloading of the truck insured by Continental under the policy of insurance referred to in Fireman's Fund's complaint, and said judicial determination constitutes res judicata as to the claim of Fireman's Fund against Continental that the damages set forth in its complaint by Fireman's Fund were incurred as a result of the unloading of said truck, and operated and operates as a bar to Fireman's Fund's right of recovery therefor;

9. That Harry Linch was not using the truck, insured by Continental at the time of the alleged accident of Chris Eugene Glunz, and that the said Harry Linch was not entitled to any coverage as an additional insured under Continental's policy of insurance, and that, as Fireman's Fund's right to recovery as alleged in its complaint is derived from whatever right Harry Linch had under Continental's policy of insurance, the fact that Continental was under no obligation or duty to Harry Linch bars Fireman's Fund's right to recovery in its suit against Continental;

10. That, if Harry Linch were entitled to any coverage under the policy of Continental, as against Continental, which Continental does not admit, Harry Linch breached the terms and conditions of Continental's policy by failing to give notice of the accident as required in said policy, breached the cooperation clause of such policy, which breaches of the terms and conditions of said policy bar any right to recovery he may have had thereunder, and said breaches extend to, and are imputed to, Fireman's Fund herein, and bar its right of recovery.

Finally, in closing its answer, Continental prayed that the trial court, i. e., the United States District Court for the District of Colorado, enter judgment for Continental and against Fireman's Fund upon such complaint, and enter judgment for continental and against Fireman's Fund for costs, and for such other and further relief as, to such court, may seem proper in the premises.

The foregoing reflection, at unwelcome length, is offered, first, in identification of the misadventure out of which, in the first instance, this litigation arose; of the parties participant in it, inclusive of Harry Linch, Petroleum Transport Company (aliter Petco), Chris Eugene Glunz and sundry corporations at least tangentially related to that occurrence, of whose number several do not continue to be parties hereto; and the insurance carriers which, actually or allegedly, were under engagements providing — or asserted to provide — protective coverage claimed to be involved as a consequence of such misadventure; Secondly, in the disclosure of the litigation arising out of that misadventure, which was conducted as Civil Action No. 20151, in the District Court of Jefferson County, Colorado, and the conduct and eventual result thereof; and, Thirdly, in the exhibition of the pleadings, including the complaint of Fireman's Fund and the answer of Continental in the ultimate civil action, from the trial court's judgment wherein the present appeal and cross appeal were taken. Recognizing the explanatory mission, in relation to Case No. 66-C-90 in the United States District Court for the District of Colorado, of those basic events and the earlier state court litigation, this opinion has taken preliminary but extended notice of them. They provide a measure of background against which the complaint and answer in Case No. 66-C-90, and the course in the trial court of that action, may the better be understood.

However, Case No. 66-C-90, in which those later pleadings were served and filed, was not "tried" in the United States District Court for the District of Colorado in the usual sense of the "trial" of litigation in that court, see immediately infra.

The answer in that case appears to have been filed in the United States District Court for the District of Colorado on February 28, 1966. The case may be, at least, tentatively, considered to have been at issue from that date forward. On December 20, 1966, following the conduct on June 7, 1966 before the Honorable Alfred A. Arraj, Chief Judge of the United States District Court for the District of Colorado of a pretrial conference in the action, there was formally entered and filed in that case a PRE-TRIAL ORDER over the signature of Judge Arraj, and bearing the express approval "as to form and content" signed by Kenneth C. Groves, attorney for Fireman's Fund, and of Yegge, Hall, Treece & Evans, by Wesley H. Doan, attorneys for Continental. A verbatim copy of that pre-trial order follows:

"IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

 FIREMAN'S FUND INSURANCE | COMPANY, a California corporation, | Plaintiff | No. 66-C-90 vs > Civil CONTINENTAL CASUALTY COMPANY, | PRE-TRIAL ORDER an Illinois corporation, | Defendant |

This matter coming on for Pre-Trial Conference on the 7th day of June, 1966, before the Honorable Alfred A. Arraj, District Judge, the plaintiff appearing by Kenneth C. Groves and the Defendant by the firm of Yegge, Hall, Treece & Evans.

1. JURISDICTION.

Jurisdiction of this Court is admitted.

2. AMENDMENTS TO PLEADINGS.

There were no amendments to the pleadings.

3. PRELIMINARY MOTIONS REMAINING TO BE DETERMINED.

None.

4. GENERAL NATURE OF THE CLAIMS OF THE PARTIES.

The parties hereto have agreed and stipulated to all of the evidence and facts necessary for a determination of the issues herein involved, such stipulated Statement of Facts being attached hereto and thereby incorporated herein.

5. UNCONTROVERTED FACTS.

All of the facts hereto are uncontroverted, and stipulated as provided in the attached Statement of Facts.

6. ISSUES OF LAW.

A. Is the plaintiff herein, being subrogated to the rights of Harry Linch, entitled to recovery from the defendant under the defendant's automobile liability policy on the basis of `use' and omnibus coverage provided thereby.

B. If the plaintiff is so entitled to recover, what is the extent and limitations, if any, upon the coverage provided by the defendant's policy.

7. WITNESSES.

There will be no witnesses called by either party hereto, all of the material issues of fact having been resolved by stipulation and agreement.

8. EXHIBITS.

The exhibits have heretofore been agreed upon and stipulated to, and made a part of the Agreed Statement of Facts herein described.

THE COURT HEREBY ORDERS, in view of the fact that the issues of fact have heretofore been resolved by way of Stipulation and Agreement between the parties, that there is no material or genuine issue of fact remaining to be litigated, and that, therefore, this case is one to be determined by way of Motion for Summary Judgment pursuant to Rule 56 of the Rules of Civil Procedure for the United States District Court.

IT IS FURTHER ORDERED that such case shall be disposed of as though each party had filed its Motion for Summary Judgment, and the Court shall make final disposition of said case by merely appending to the Agreed Statement of Facts, its conclusions of law just as though said case had been tried in full and judgment entered on the merits.

The issues of law shall be resolved by the Court, after having received from the parties hereto their written briefs, and upon oral argument if the Court deems advisable and necessary such argument.

A. Plaintiff shall have thirty days from the entry of this Order within which to file its initial brief.

B. Defendant shall have thirty days after the filing of plaintiff's brief within which to respond to it.

C. Plaintiff shall have twenty days after the filing of the defendant's brief within which to file a reply brief.

Dated this 20th day of December, 1966.

 BY THE COURT: /s/ Alfred A. Arraj Judge APPROVED AS TO FORM AND CONTENT: /s/ Kenneth C. Groves Kenneth C. Groves Attorney for Plaintiff YEGGE, HALL, TREECE & EVANS By /s/ Wesley H. Doan Attorneys for Defendant "

It will be observed, from paragraph 4 of the foregoing pre-trial order, that the AGREED STATEMENT OF FACTS, mentioned therein is attached to, and incorporated in, such original pre-trial order. It is so attached. A copy of the typewritten and signed AGREED STATEMENT OF FACTS, not, however, including the exhibits to the stipulation attached thereto and referred to therein, (vide infra) follows:

"IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

 FIREMAN'S FUND INSURANCE | COMPANY, a California corporation, | No. 66-C-90 Plaintiff | vs. > Civil CONTINENTAL CASUALTY COMPANY, | an Illinois corporation, | AGREED STATEMENT Defendant | OF FACTS

This is an indemnity and breach of contract action between the plaintiff, Fireman's Fund Insurance Company, hereinafter referred to as the `Fund', and the defendant Continental Casualty Company, hereinafter referred to as `Continental', to recover the amount of a judgment rendered in favor of Chris Eugene Glunz, hereinafter referred to as `Glunz', against the insured of this plaintiff, Harry Linch, referred to herein as `Linch', together with costs and attorney's fees incurred in connection therewith.

Prior to October 7, 1963, Continental had issued a certain policy of automobile insurance to a Colorado corporation known as Petroleum Transport Company, hereinafter referred to as `Petco', which policy was in full force and effect on October 7, 1963. The plaintiff issued its policy of garage liability insurance to Linch, which policy was, on said date, in full force and effect. Copies of each of the respective policies are attached hereto.

On or about October 7, 1963, Linch, who leased and operated under his sole and exclusive control, a Standard Service Station located at 7201 Grandview Ave., Arvada, Colorado, placed an order with Petco for 6000 gallons of liquid gasoline for transportation and delivery to his service station on October 7, 1963. Petco was engaged in the general business of transporting and delivering petroleum products, and had been engaged in that business for several years. Petco had made similar deliveries to the station operated by Linch on several prior occasions without incident, but never in the quantity which was delivered on October 7, 1963.

All deliveries of liquid gasoline to Linch's station were made by unloading the same into underground storage tanks located on the premises immediately South of the station building. These storage tanks supplied the station's gas pumps. The underground tanks were equipped with a venting system running from the tanks underground, to the outside of the service station building, then up the side of the building to the roof line. A blueprint of the venting system and the manner in which it was attached to the underground tanks is attached hereto. The venting system was an integral part of the storage tanks and was a necessary instrument for the unloading of liquid gasoline into the underground storage tanks, and for the storage thereof, since it served to disperse and dissipate fumes which could, and did, develop from unloading operations.

On October 7, 1963, Glunz, an employee of the McBride Lighting Company, was present at Linch's station for the purpose of cleaning certain lighting fixtures thereon located. While performing such duties, Glunz found it necessary to use the restroom facilities located on said premises in the interior part of the service station building. At the same time, Petco's truck arrived at the station with 6000 gallons of regular and premium gasoline for unloading into Linch's storage tanks. After securing Linch's approval of the gallonage, and his permission to unload, Petco, through its agent and employee, commenced to unload the 6000 gallons of gasoline from its truck into the underground storage tanks. The unloading of gasoline was accomplished by means of attaching two or more hoses to the Petco truck, which were dropped and placed into the underground storage tanks and secured thereto by connections on the hoses screwed to the storage tank caps. These connections were airtight and no escape of fumes was possible at the place of the connections. Glunz, in the meantime, had entered the restroom, also located on the south side of the station building, a short distance from the storage tanks.

After Glunz had gone into the restroom and seated himself upon the toilet stool, and while Petco was still unloading the liquid gasoline, he lit a match for the purpose of lighting a cigarette and an explosion occurred whereby he sustained injuries.

The 6000 gallons of liquid gasoline were unloaded from the Petco truck into Linch's underground tanks by gravity flow at the rate of approximately 110 gallons per minute. The rapidity with which the unloading procedure was accomplished caused turbulence in the underground tanks, which in turn created gasoline fumes or vapors which were discharged from the underground tanks through the venting system above described. A substantial portion of these fumes, which arose from the unloading operation, passed through the venting system and accumulated in the restroom where Glunz was then situated. It is admitted by the parties hereto that the explosion was caused by the gasoline fumes which arose from this unloading operation.

About the month of May, 1965, Glunz filed an action in the District Court in and for the County of Jefferson, State of Colorado, against Linch and Petco, among others, to recover damages in the amount of $100,000 for the personal injuries incurred by him as a result of the explosion. A copy of said complaint is attached hereto. Linch then joined Victor Ries, the contractor who built the station building, as a third party defendant. Service was obtained upon Linch and Petco, and the complaint and summons were referred to the respective parties' liability insurance carriers, who thereafter caused answers and other incidental pleadings to be filed on behalf of their insureds. It was the contention of Glunz that Linch was guilty of actionable negligence by reason of an accumulation of gasoline and gasoline vapors in the space between the ceiling of the restroom and the roof of the service station which was under the management and control of Linch. It was further alleged, as to the negligence of Linch, that the building had been improperly constructed and was improperly repaired and maintained which permitted the accumulation of gasoline vapors in the aforementioned area. The plaintiff also complained that Linch was negligent in permitting Petroleum Transport Company to unload and empty into the storage tanks the large volume of gasoline, thereby permitting a dangerous volume of gasoline vapors to accumulate and increase the volume of the inherently dangerous and explosive gas, all of which matters are fully set forth in the plaintiff Glunz's complaint in Paragraph 16, subparagraph (o).

Trial was held in the District Court of Jefferson County, Colorado, during which testimony was taken and the defendants, Standard Oil Company of Indiana and Petroleum Transport Company, received a directed verdict of dismissal of the claims of Glunz against them. In the course of the testimony, it was developed that the building in question was constructed by Victor C. Ries under a contractual agreement with Cook Bros. Oil Co., pursuant to plans provided by the Standard Oil Company and the American Oil Company. The construction plans called for the termination of the venting system to be above the roof line. However, in constructing the station, Ries terminated the vent pipes beneath the gutter, surrounding the top of the building, thereby placing the ends of the vent pipes at a level beneath the roof line of the building. This Linch does not dispute for the purpose of this suit. Ries testified that the building, during the course of construction, had been inspected on twelve separate occasions by the Building Inspection Department of the City of Arvada, and that a certificate of occupancy had been issued after the completion of construction.

The Fund undertook the defense of Linch pursuant to the terms and provisions of its policy herein described, and denied knowledge or responsibility for the alleged defective condition of the premises.

Thereafter, plaintiff discovered that the defendant, Continental, had issued its automobile public liability and property damage insurance policy, above-described, a copy of which is attached hereto. The plaintiff herein, elected on behalf of Linch to seek coverage under the terms and provisions of Continental's policy upon the basis that Linch was an additional insured thereunder and therefore was entitled to coverage and insisted that the coverage therein provided was primary to the insurance available under its general liability insurance contract.

A demand was made upon the defendant Continental to assume the defense of Linch, and to pay any judgment rendered against him, including costs, attorney's fees and all other expenses incurred in connection therewith, pursuant to the following quoted provision of the Continental public liability and property damage insurance contract:

INSURING AGREEMENTS

1 Coverage A — Bodily Injury Liability

To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of any automobile.

Coverage B — Property Damage Liability

To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of the ownership, maintenance or use of any automobile.

* * * * * * *

111 Definition of Insured

The unqualified word "insured" includes the named insured and also includes any person while using an owned automobile or a hired automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission, and any executive officer of the named insured with respect to the use of a non-owned automobile in the business of the named insured. * * *

CONDITIONS

* * * * * * *

* * * * * * *

(c) Use of an automobile includes the loading and unloading thereof.

The Fund's demand was rejected, and Continental was thereafter again notified that Linch elected to avail himself of the coverage afforded under its automobile public liability and property damage policy issued to Petco, and it was, upon that occasion, informed that if Linch's defense was not assumed, that the necessary action to enforce performances of the terms of its policy would be instituted. This second notification and demand to assume Linch's defense was refused on May 17, 1965. True copies of said notifications and demands are attached hereto.

Plaintiff herein continued the defense of Linch in the Glunz action, and after the trial thereof had proceeded to a point where all of the testimony had been taken, Linch voluntarily permitted a judgment to be entered against him in the sum of $5,000. The judgment entered against him was by virtue of his stipulation and agreement.

Prior to the entry of said judgment, Continental, through its agents and attorneys of record, were advised of the progress of the trial after they had obtained a dismissal of their client, Petroleum Transport Corporation, and were told of the action which was contemplated with respect to the entry of judgment against Linch and were given an opportunity to object thereto, or to otherwise participate therein. The offer made to Continental through its agents and attorneys of record, was that they should either pay the judgment which was to be taken against Linch, or go back into Court and take over his defense, which, at that point, consisted of nothing more than preparation of jury instructions and making oral arguments to the jury and then paying the judgment which might be rendered against Linch by verdict of the jury. This offer was denied by Continental through its agents and attorneys of record, and they refused to either satisfy, or otherwise dispose of the judgment or to assume any responsibility for the defense of Linch in the action brought against him by Glunz. As a result of the defense of Linch, the Fund incurred expenses, over and above the judgment of $5,000, for costs and attorney's fees, in the total sum of $6,946.57.

The Fund is subrogated to the rights of Linch under the terms and provisions of its general liability insurance contract in which Linch is the named insured.

 /s/ Kenneth C. Groves Attorney for Plaintiff 475 Capitol Life Center Denver, Colorado 244-5414 /s/ Wesley H. Doan Wesley H. Doan of Yegge, Hall, Treece and Evans Attorneys for Defendant 1340 Denver Club Building Denver, Colorado 222-2855"

In the service of brevity, it is here made clear that, in accordance with assurance to that end in the agreed statement of facts just mentioned and copied in full, copies of the following items are physically attached to such STATEMENT OF FACTS:

(a) Continental's policy of insurance in favor of The Permian Corporation and sundry identified "affiliates and subsidiaries," including Petroleum Transport Company, also known herein, and elsewhere, as "Petco;"

(b) The policy of insurance issued by Fireman's Fund in favor of Harry Linch;

(c) A blueprint (although, perhaps, more exactly, a photographic, or other, copy of a blueprint) in multiple pages of the venting system of the involved Standard Service Station building; (d) Copies of the Complaint of Chris Eugene Glunz in Case No. 20151 in the District Court of Jefferson County, Colorado, and of the answers thereto of Harry Linch, ad of Petroleum Transport Company, i. e. Petco.

Of those several exhibits it is now said only that they serve to support the several statements concerning them respectively, which are made in the admitted allegations in the pleadings in this litigation, and also the factual declarations of the AGREED STATEMENT OF FACTS, supra.

By way also of possibly instructive amplification, it is to be understood that paragraph 16, subparagraph (o) of the Glunz complaint, in the state court case, alluded to in Civil Action No. 66-C-90, in the United States District Court for the District of Colorado is in this language:

"16. That the negligence, carelessness and recklessness of the defendants, in the cause of action named, consisted of the following:

* * * * * * * * * *

`(o) In allowing and permitting the defendant, Petroleum Transport Co., to unload and empty into the storage tank of the Standard Service Station large quantities of gasoline at a time and under circumstances when a large and dangerous volume of gas and gas vapors had accumulated in and about the premises and thus increase the volume of the inherently dangerous and explosive gas and, by reason of the premises, increase the danger and volume of the explosion.'"

On April 3, 1967, and after the tender and submission in behalf of each of the parties to Civil Action No. 66-C-90 in the United States District Court for the District of Colorado, that court by and through the Honorable Alfred A. Arraj, then still, and now, Chief Judge of said court, made, entered and caused to be filed in such action, its MEMORANDUM OPINION AND ORDER determinative of the issues therein. That filing reflects such thorough consideration that a complete copy of it is set out, as follows:

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action 66-C-90

FIREMAN'S FUND INSURANCE COMPANY, a California corporation, Plaintiff, v. CONTINENTAL CASUALTY COMPANY, an Illinois corporation, Defendant.

Mr. Kenneth C. Groves, Attorney at Law, 475 Capitol Life Center, Denver, Colorado, for Plaintiff; Yegge, Hall, Treece and Evans, by Mr. Wesley H. Doan, Attorney at Law, 1340 Denver Club Building, Denver, Colorado, for Defendant.