specially concurring:
I concur in the result reached by the court. I write separately to express my view that the majority unnecessarily holds that there is “a reasonable likelihood that the alleged tortious conduct of Troelstrup is excluded from coverage under his homeowner’s policy” (at 1012). The court makes this determination in order to distinguish Hartford Insurance Group v. District Court, 625 P.2d 1013 (Colo.1981), a case which I believe has little applicability to the issue we address here.
In Hartford Insurance, we held that a district court “did not abuse its discretion in ordering the negligence action to proceed to trial before the rendition of any declaratory judgment on the contractual obligations of indemnification and defense to the named defendants in that negligence action.” 625 P.2d at 1018 (emphasis added). In Hartford, the facts in issue, based upon a comparison of the prejudice to the respective parties, dictated that the negligence claim be resolved before the declaratory judgment action. In the present case we face the question of whether the Denver District Court abused its discretion by requiring the tort suit against Troelstrup to proceed to trial after the Allstate declaratory judgment action.
Numerous cases hold that a declaratory judgment action by an insurer to determine its defense responsibilities can be given priority over the trial of the underlying tort claim. For example, Gulf Insurance Co. v. Dooley, 286 F.Supp. 16 (N.D.Ill.1968), held that the insurance carrier could seek declaratory relief prior to the trial of the underlying tort action to determine whether it had an obligation to defend. The federal district court stated that since “Illinois law does not allow an insurance company to raise the question of a policy’s coverage in the state court [tort] suit,” the declaratory judgment action presented a real and substantial controversy that should be resolved before the tort claim. 286 F.Supp. at 17. Farmers Alliance Mutual Insurance Co. v. Reed, 530 S.W.2d 470 (Mo.App.1975), similarly held that an insurer could maintain a declaratory judgment action to determine whether the “intentional conduct” clause in the insurance contract relieved the insurer of its obligation to defend the insured in the subsequent tort action. See also, e.g., Continental Casualty Co. v. Employers Commercial Union Insurance Co., 476 F.2d 782 (8th Cir.1973); Allied Mutual Insurance Co. v. Hingst, 360 F.Supp. 1204 (D.N.D. 1973); Lincoln Casualty Co. v. Vic and Mario’s, Inc., 62 Ill.App.2d 262, 210 N.E.2d 329 (1965); Poynter v. Fidelity & Casualty Co., 140 So.2d 42 (La.App.1962); Public Service Mutual Insurance Co. v. Gold-*1014farb, 53 N.Y.2d 392, 442 N.Y.S.2d 422, 425 N.E.2d 810 (1981); Firemen’s Insurance Co. v. Burch, 442 S.W.2d 331 (Tex.1968).
In view of the substantial authority supporting the district court’s decision to hear the declaratory judgment action first, the court here need not distinguish Hartford Insurance, a case not on point. In analyzing Hartford (slip op. at 7), the majority virtually decides the merits of Allstate’s summary judgment claim, stating that Troelstrup’s conduct is likely not covered by the Allstate policy. Such a factual determination is properly made by the trial court. Our only function in this original proceeding is to decide the preliminary question of whether the district court abused its discretion by giving priority to the declaratory judgment action.
I am authorized to say that Justice NEIGHBORS joins me in this special concurrence.