Allstate Insurance Company v. Edwards
| Decision Date | 02 November 1964 |
| Docket Number | Civ. A. No. 647. |
| Citation | 237 F. Supp. 195 |
| Parties | ALLSTATE INSURANCE COMPANY, Plaintiff, v. Lucien G. EDWARDS and Phillip A. Hudson, Defendants. |
| Court | U.S. District Court — Northern District of Georgia |
Gambrell, Harlan, Russell, Moye & Richardson, Atlanta, Ga., for plaintiff.
Roy H. Phillips, Phenix City, Ala., and James H. Fort, Columbus, Ga., for defendant Edwards.
Sanders, Mottola & Haugen, Newnan, Ga., for defendant Hudson.
Allstate Insurance Company (hereinafter referred to as Allstate), proceeding under the Declaratory Judgment Act, 28 U.S.C.A. § 2201, has brought suit against Lucien G. Edwards and Phillip A. Hudson, seeking to be discharged from responsibility to defend any suit or pay any judgment arising out of a certain accident involving its insured, Edwards, for the reason that the insured Edwards had failed to give notice to Allstate as required by the insurance contract between Allstate and Edwards.
Allstate, pursuant to Rule 56 of the Federal Rules of Civil Procedure, has moved for a summary judgment, filing therewith its affidavits and brief of law. Defendant Edwards has filed affidavits and a brief of law in opposition to the motion. Under Local Rule 8, the motion is now properly before the Court for disposition.
Prior to the date of May 25, 1959, the defendant Edwards was insured under a policy of liability insurance issued by Allstate. On the date of May 25, 1959, Edwards, the insured, was accidentally struck by his own automobile in a parking lot at Phenix City, Alabama, while the said automobile was being operated by Phillip A. Hudson, a companion of Edwards. Immediately after the accident, insured Edwards, a serviceman, was transported to the Army Hospital at Fort Benning, Georgia, a short distance from the scene of the accident. Insured Edwards asserts that he instructed companion Hudson (a fellow serviceman) to notify Allstate and later was assured by Hudson that the notice had been given. About 30 or 40 days thereafter, insured Edwards asserts that he became concerned and telephoned an Allstate office in Columbus, Georgia, at which time he reported the accident. Not having heard from Allstate in 3 or 4 months, defendant Edwards asserts that he again called a lady in the Columbus office of Allstate, at which time he was assured by the lady on the telephone that a Mr. Stoller would contact him. Thereafter, on February 22, 1960, Edwards consulted with attorney Roy H. Phillips at his home city of Phenix City, at which time Allstate was again notified concerning the accident.
The contract of insurance issued to insured Edwards by Allstate requires that written notice must be given to Allstate "as soon as practicable". Allstate seeks judgment based upon a finding that no notice of loss was given by defendant Edwards or by anyone on his behalf until February 22, 1960, almost nine months after the alleged accident, which occurred on May 25, 1959, and that failure to receive timely notice has resulted in material prejudice in its efforts to investigate the circumstances of the accident.
Evidence of Allstate shows that Mr. Stoller was head adjuster of its Columbus office from May 1, 1959, through February 22, 1960, and that the entire personnel and staff of the office at Columbus was composed of R. H. Stoller, Wayne S. Gilliland, James S. McGee, Norman Bradfield, and Ned M. Roach. All members of the staff deny ever having a telephone conversation with insured Edwards or anyone in his behalf and deny any knowledge of the accident of insured until February 22, 1960, when Edwards called adjuster Stoller by telephone.
The evidence is undisputed that Hudson, the companion of Edwards and the alleged tort-feasor, who was operating insured's automobile at the time of the accident, was unavailable at the time of the notice of February 22, 1960, for the reason that Hudson had been transferred overseas; and that, because of the delay and failure to report the accident, Allstate has been materially prejudiced in that it was not able to inform itself promptly concerning the accident, and, particularly, in that it could not interview Hudson or view the physical evidence at the scene.
The question to be decided by this Court is whether this Court, as a matter of law, can determine that no written notice of the accident was given "as soon as practicable". As was stated by Judge Jones in the case of Greyhound...
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