dissenting.
I respectfully dissent. I believe that the trial court did not err in relying on Equitable Life Insurance Co. v. Verploeg, 123 Colo. 246, 227 P.2d 333 (1951), as dispositive. I read Verploeg as holding that the insured's acceptance, and subsequent endorsement and negotiation of the refund check gave rise, as a matter of law, to a mutual recission. The case holding is still good law, and is applicable in this declaratory judgment action.
As the supreme court stated in Verploeg: "Nothing could be plainer than that, if [insured] accepted the return of the premiums, [it] consented to and effectuated a rescission by consent. [It] could not possibly believe that [it] was entitled to both the returned premiums and the insurance which the premiums had been paid to obtain." Equitable Life Insurance Co. v. Verploeg, supra, 123 Colo. at 252, 227 P.2d at 336. See also 2 G. Couch, Couch on Insurance § 31.121 (L.R. Russ 3d ed.1997). There is nothing in the Verploeg court's holding that qualifies the legal occurrence of mutual recission based on when, even during pending litigation, as here, the insured chooses to rescind.
Thus, in my view, the trial court was correct in determining as a matter of law that NCAC's cashing of the refund check and retention of the proceeds resulted in a mutual rescission of the insurance policy.
I would, therefore, affirm the trial court's judgment.