Hartford Accident & Indem. Co. v. Lochmandy Buick Sales

Decision Date08 May 1962
Docket NumberNo. 13542.,13542.
Citation302 F.2d 565
PartiesHARTFORD ACCIDENT AND INDEMNITY COMPANY, Plaintiff-Appellee, v. LOCHMANDY BUICK SALES, INC., Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

George N. Beamer, Jr., George N. Beamer, South Bend, Ind. (Crumpacker, May, Beamer, Levy & Searer, South Bend, Ind., of counsel), for defendant-appellant, Lochmandy Buick Sales, Inc.

Arthur W. Goulet, South Bend, Ind., for appellee.

Before HASTINGS, Chief Judge, SCHNACKENBERG and KILEY, Circuit Judges.

KILEY, Circuit Judge.

In this diversity action the court, without a jury, entered a declaratory judgment that plaintiff insurer was not required, under its garage policy covering Lochmandy Buick Sales, Inc. (hereinafter referred to as Buick), to defend or to pay any judgment rendered against it in a personal injury action. Buick has appealed.

Buick is an Indiana corporation which sells and services Buick cars in Elkhart, Indiana. Plaintiff is a Connecticut corporation which issued the policy herein involved.

Buick's president Lochmandy was asked to provide automobiles for an American Legion parade to be held on June 23, 1956. He declined,1 but some of his salesmen volunteered to enter their cars. One of these, Ernest Miller, a part time and non-salaried salesman, drove his car with a sign on the side, furnished by another salesman, reading: "Welcome Legionnaires — Ernest MillerLochmandy Buick Sales, Inc." During the course of the parade Miller's automobile ran into Charles Ruklic and broke his leg.

Three days later, Lochmandy learned the details of the occurrence from Miller and that the matter had been turned over to Miller's insurer. Lochmandy's next notice of the matter was a letter of April 30, 1958, from Ruklic's attorney, of intention to sue.2 He sent this letter to Hartford's agent.

Ruklic sued Buick as Miller's principal June 20, 1958. Plaintiff rejected Buick's request that it defend the suit on the ground that Buick had violated the policy by failing to give timely notice of the occurrence.

It is stipulated that Lochmandy "was of the opinion that there was no need to notify his insurance company because he was in no way involved, Mr. Miller was not acting as agent for * * * Buick * * * and furthermore, Mr. Miller carried his own liability insurance * * *." He knew of the occurrence a few days after it happened but gave no notice to insurer. Its first notice from Buick was when Lochmandy forwarded the summons nearly two years later.

On these facts the District Court concluded as a matter of law that Buick did not notify plaintiff "as soon as practicable after the accident," as required by the insurance policy, that there was no valid excuse for his failure to do so, and that plaintiff was not bound to defend. The main question is whether this decision was erroneous.

The general rule is that an insured will be excused, where, acting as a reasonably prudent person, he believed that he was not liable for the accident. Dunn v. Travelers Indemnity Co., 5 Cir., 123 F.2d 710 (1941); see 29A Am.Jur., Insurance, § 1393; Annot., 18 A.L.R.2d 443, 472.

The "notice as soon as practicable" provision has been interpreted as requiring notice to be given within a reasonable time under the circumstances. See Home Indemnity Co. v. Ware, 3 Cir., 285 F.2d 852 (1960); Leytem v. Fireman's Fund Indemnity Co., 249 Iowa 524, 85 N.W.2d 921 (1957).

No Indiana case cited controls our decision on the precise question whether Lochmandy's judgment for Buick about not giving notice was sufficient excuse to render timely the notice nearly two years later.

The Appellate Court of Indiana, in New Amsterdam Cas. Co. v. Plaza Square Realty Co., 101 Ind.App. 174, 195 N.E. 289 (1935), decided in favor of the insured under an "immediate notice" provision. Eight months had elapsed between the injury and notice to the insurer, but the insured had no notice of the injury on its premises until three days before it gave notice. In Metropolitan Life Ins. Co. v. People's Trust Co., 177 Ind. 578, 98 N.E. 513, 41 L.R.A.,N.S., 285 (1912) the Indiana Supreme Court thought, under the facts there, that two years and two months was excusable delay. However, in Railway Passenger Assur. Co. of Hartford v. Burwell, 44 Ind. 460 (1873) it decided a complaint by insured was defective, no excuse being alleged therein for a delay of six days under an "immediate notice" provision. The facts in these cases distinguish them also.

In other jurisdictions decisions vary in applying the general rule to varying fact situations. Buick relies upon Leytem v. Fireman's Fund Indemnity Co., 249 Iowa 524, 85 N.W.2d 921 (1957) and Home Indemnity Co. v. Ware, 183 F.Supp. 367 (D.Del.1960). In Leytem the Iowa Supreme Court affirmed, deciding the trial court's finding of fact that a delay of over a year in giving notice was not unreasonable under the circumstances. The Ware decision was appealed, 3 Cir., 285 F.2d 852 (1960) and a divided Circuit Court affirmed on the District Court's finding for insured that under the circumstances an eighty-five day delay was not unreasonable. We do not consider that either case compels us here to reverse the District Court's finding.

Plaintiff relies upon Dunn v. Travelers Indemnity Co., 5 Cir., 123 F.2d 710 (1941), where the court affirmed judgment for insurer, as a matter of law, where delay in giving notice was twentytwo months. Applying the general rule, the Court of Appeals thought Dunn's representative's investigation was incomplete and his decision not the action of a prudent person because he failed to talk to the injured man who was the prospective claimant.

We have read all the cases cited by both parties but see no need of discussing all of them. Differing fact situations, as we have shown, produce different results under the general rule; and more or less equal delays in time may be excused or not depending on circumstances. This court, for example, has held a...

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13 cases
  • Great American Ins. Co. v. C. G. Tate Const. Co.
    • United States
    • North Carolina Supreme Court
    • July 8, 1981
    ...bear the burden of showing that his delay has not materially prejudiced the insurer. E. g., Hartford Accident & Indemnity Co. v. Lochmandy Buick Sales, Inc., 302 F.2d 565 (7th Cir. 1962); Dairyland Insurance Co. v. Cunningham, 360 F.Supp. 139 (D.Colo.1973). Other jurisdictions have reasoned......
  • Miller v. Dilts
    • United States
    • Indiana Supreme Court
    • May 18, 1984
    ...the federal courts have decided the issue based on an interpretation of the law in Indiana. In Hartford Accident & Indem. Co. v. Lochmandy Buick Sales, (7th Cir.1962) 302 F.2d 565, the defendant became aware of the accident within three days of its occurrence but notice was not provided to ......
  • Matter of Federal Press Co., Inc.
    • United States
    • U.S. Bankruptcy Court — Northern District of Indiana
    • August 17, 1989
    ...delay in notifying the company of a lawsuit under the policy can be presumed. Id. at 265. See also Hartford Accident & Indemn. Co. v. Lochmandy Buick Sales, Inc., 302 F.2d 565 (7th Cir.1962) and Ohio Casualty Ins. Co. v. Rynearson, 507 F.2d 573 (7th Cir.1974) (both interpreting Indiana law ......
  • Indiana Ins. Co. v. Williams
    • United States
    • Indiana Appellate Court
    • May 25, 1983
    ...Williams's six month notification delay. To support this assertion, the insurance company relies on Hartford Accident & Indemnity Co. v. Lochmandy Buick Sales (7th Cir.1962), 302 F.2d 565 and Ohio Casualty Insurance Co. v. Rynearson (7th Cir.1974), 507 F.2d 573, Our review of Indiana law re......
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