Barnes v. Lumbermen's Mut. Cas. Co.

Decision Date10 February 1975
Docket NumberNo. 10144,10144
Citation308 So.2d 326
CourtCourt of Appeal of Louisiana — District of US

Bradford R. Roberts, II, New Orleans, for appellant.

John W. Anthony, Bogalusa, for appellees.

Before LOTTINGER and COVINGTON, JJ., and BAILES, J. Pro Tem.

JULIAN E. BAILES, Judge Pro Tem.

Plaintiffs brought this action against defendant to recover for the wrongful death of their son under the uninsured motorist provisions of their automobile public liability insurance policy. The district court awarded judgment in favor of plaintiffs in the amount of $5,000, the maximum due under the applicable feature of the policy. Defendant has appealed. We affirm.

The following was stipulated between the parties at the trial.

'It is stipulated by and between counsel for the plaintiffs and the defendant that Calvin Wesley Barnes, the minor son of Mr. and Mrs. J. C. Barnes who was residing with them was in an automobile accident on November 15, 1969, while riding as a passenger in an automobile driven by J. C. Turner in the City of Bogalusa, Louisiana . Approximately seven days after the accident Calvin Wesley Barnes died as a result of the injuries sustained in the said automobile accident. It is further stipulated that the said J. C. Turner was uninsured and that the accident was caused by his negligence. It is further stipulated that Lumbermens Mutual Casualty Company issued a policy of insurance to Mr. and Mrs. J. C. Barnes containing uninsured motorist coverage with limitations of liability of $5,000 per person. The sole question at issue in this case is whether or not Mr. and Mrs. Barnes gave sufficient notice to the defendant as required under their policy. It is the contention of Mr. and Mrs. Barnes that they did give notice on or about December 17, 1969, whereas it is the contention of the defendant that no notice was received until August 8, 1972.'

On the issue of notice, both plaintiffs testified and also the insurance agent, Mr. Gaulden L. Smith, Jr., of Hattiesburg, Mississippi. The essence of plaintiffs' testimony is that they went to Mr. Smith's office on December 17, 1969, advised Mr. Smith that their son had been injured in an automobile accident in Bogalusa, Louisiana, on November 15, 1969, and that he had died as a result of these injuries seven days later, and that they wanted to have their son's vehicle included in their insurance policy. The plaintiffs further testified that they were unaware at that time that they had a claim under their insurance policy for either the wrongful death of their son or for any medical payment; that it was not until August, 1972, after a discussion with a friend, that they became aware of the existence of any claim under their policy. Mr. Smith testified that the plaintiffs stated they had lost their son and wished to have his automobile covered under their policy. He denied that the plaintiffs had advised him that their son had died of injuries received in an automobile accident. On August 7, 1972, Mr. Smith received a telephone call from Mrs. Smith advising him that her son had died of injuries received in an automobile in Bogalusa, Louisiana, on November 15, 1969. As a result of this notice, Mr. Smith notified defendant which made the medical payment of $1,000 due under the policy. Payment under the uninsured motorist provision was refused.

In his reasons for judgment, the trial judge stated, inter alia:

'It is inconceivable to the court that Mr. Smith did not make inquiries about the death of Mr. and Mrs. Barnes son, when they advised him that he had died. Mr. Smith admitted that he gave his condolences to Mr. and Mrs. Barnes, and that he issued an endorsement changing their insurance from their automobile to their son's automobile. In the normal course in changing this endorsement this information almost of a certainty was discussed by Mr. and Mrs. Barnes and Mr. Smith. As an agent for the insurance company, Mr. Smith had considerable more knowledge of the provisions of their insurance policy and the court feels he had a duty to advise Mr. and Mrs. Barnes of the provisions of their policy. Even if the uninsured motorist provisions of a policy did not come into play, the company owed to Mr. and Mrs. Barnes the medical payment provision, which they subsequently paid without a question. Even if Mr. Smith did not properly notify the insurance company, it cannot be held against Mr. and Mrs. Barnes.'

We find plaintiffs have not sustained the burden of proving that notice was given to Mr. Smith that their son died as the result of injuries received in an automobile accident. In the face of their ignorance that they possessed a claim under the uninsured motorist and the medical payment provisions of their insurance policy there was no compelling reason for them to notify or tell their insurance agent that their son had died of injuries received in an automobile accident. Mr. Smith affirmatively denies that plaintiffs so advised him, and further states that he did not inquire of how their son met his death because of the evident emotions of Mrs. Smith.

Although we find plaintiffs did not notify defendant of the loss under the policy, at the meeting with Mr. Smith as above related, defendant cannot escape liability for the claim asserted in this action unless it has been prejudiced either in fact or as a matter of law by the delay in notice.

In Article VII of its answer, defendant stated: '* * * Further answering, it is specifically averred that plaintiffs' failure to give notice of the accident to defendant violated the terms of the contract of insurance to the prejudice of defendant and precludes plaintiffs' recovery.'

In its brief, defendant includes this argument:

'Lumbermens suggest that the trial judge erred in not finding that the notice given almost two years after the accident actually prejudiced the insurer. After that period of time Lumbermens was not able to trace the witnesses to the accident, could not take the statement of their insured's son who had died as a result of the accident, could not find the uninsured motorist for subrogation purposes and could not investigate the automobile, the scene, the traffic signals or the road conditions in a meaningful way. * * * Lumbermens has been clearly prejudiced in its role as insurer and the trial judge erred in holding to the contrary.'

We cannot consider this argument of defendant for the reason that the facts on which this argument is based are dehors the record.

As no factual allegations of prejudice are made and no proof of prejudice was offered under this conclusionary allegation of defendant's answer, we are restricted to a determination of the issue of prejudice as a matter of law.

In this respect it is argued that inasmuch as the accident occurred on November 15, 1969, and notice was given to defendant on August 7, 1972 more than a year after the date of the accident, defendant's claim against the negligent host driver has prescribed. We cannot hold at this time that as a matter of law the negligent uninsured host driver would have interposed the exception of one year prescription nor for that matter would have answered a suit filed by defendant.

The notice provision of the insurance policy under which this action is brought provides:

'3. Notice. In the event of an accident * * * written notice containing particulars * * * shall be given by or for the insured to the company or any of its authorized agent as soon as practicable.'

In Jones v. Shehee-Ford Wagon & Harness Co., Inc. et al., 183 La. 293, 163 So. 129, the insured delayed giving notice of an accident, liability for which was covered by the policy issued to the named defendant, from June 12 (the date of the accident) until July 16. In passing on the defendant insurance company's exception of no cause or right of action based on breach of the notice provision of the insurance policy, the court stated:

'Under policy contracts similar to the one before us, the law does not require the insured to give notice to the insurance company of an accident unless the insured has reason to believe that the accident had caused or will cause loss covered by the policy. See Blashfield's Cyclopedia of Automobile Law, Vol. 3, p. 2663, and the decisions cited. * * *.'

In Jackson v. State Farm Mutual Automobile Insurance Company, 211 La. 19, 29 So.2d 177, the court, in considering a notice delay of eight-two days, held there was no substantial prejudice to defendants. Therein the Supreme Court said, in commenting on the Jones case, supra:

'The above quoted decision recognizes the fact that the average citizen who purchases a public liability policy seldom, if ever, becomes familiar with its detailed provisions but simply puts it away against the day when a claim may be made against him.'

Further, the court observed:

'(2) Each case involving delayed notices must stand upon its own facts and circumstances. The Court may consider in balancing equities, not only the time intervening between the accident and the date of notice to the insured, and whether or not the claim is a direct one by the insured party, under Act 55, of 1930, but also when the parties first discovered that substantial injury had been done or that a claim would be made; the time when the injured party discovered that insurance existed and knew the identity of the insurer; what prejudice to the insurance company's defense has been caused by the delay; the good faith of the insured and injured party; and the existence of any special circumstances, especially those indicating fraud or collusion.'

Particularly impressive is the holding of the court in the case of Howard v. Early Chevrolet-Pontiac-Cadillac, Inc., 150 So.2d 309 (La.App.2d Cir. 1963) wherein the court rejected the defense of lack of notice of almost one year after the accident. The court therein held:

'(1) A fair...

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