Cherokee Ins. Co. v. Frazier
| Decision Date | 20 November 1981 |
| Citation | 406 So.2d 881 |
| Parties | CHEROKEE INSURANCE COMPANY v. Melva O. FRAZIER, et al. 80-324. |
| Court | Alabama Supreme Court |
Cooper C. Thurber and Victor H. Lott, Jr. of Lyons, Pipes & Cook, Mobile, for appellant.
Abram L. Philips, Jr. and Patricia K. Olney of Reams, Wood, Vollmer, Philips, Killion & Brooks, Mobile, for appellees.
This is an appeal from a declaratory judgment which held that the policy of insurance issued by appellant Cherokee Insurance Company (hereinafter referred to as Cherokee) to appellees Frank R. Warren and Joanne C. Warren, d/b/a Warren Properties, did provide coverage with regard to the allegations contained in a separate pending lawsuit.
On May 6, 1977, Cherokee issued a special multi-peril policy of insurance to Frank R. Warren and Joanne C. Warren covering the large 200-unit family apartment complex known as Warren Village, which is owned by the Warrens and is located off Airport Boulevard in Mobile, Alabama. In pertinent part, coverage under the policy was conditioned upon compliance with the following standard provision:
D. INSURED'S DUTIES IN THE EVENT OF OCCURRENCE, CLAIM OR SUIT:
1. In the event of an occurrence, a written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the insured to the Company or any other authorized agent as soon as practicable.
2. If claim is made or suit is brought against the insured the insured shall immediately forward to the Company every demand, notice, summons or other process received by him or his representative.
The policy further provided:
G. ACTION AGAINST COMPANY: No action shall lie against the Company unless, as a condition precedent thereto, there shall have been full compliance with all of the terms of this policy....
On May 13, 1978, a severe downpour in the Mobile area caused flooding and water damage to the Fraziers' property, which was coterminous with Warren Village. Shortly thereafter, on May 16, 1978, the Fraziers, through their attorney, wrote to Warren Properties, in care of the Warren Village Apartments, and advised that "substantial damage was done to the Frazier's property caused by water coming from your property" during the recent heavy downpour. The letter further encouraged the Warrens "to take appropriate action immediately to see that the problem does not re-occur" and requested the Warrens to advise the Fraziers as to their "plans to pay the Fraziers for the damage done their property."
There was testimony showing that the Warrens advised Cherokee of the floods and certain claims for property damage made by the Warrens' tenants. Cherokee sent an adjuster to the property to investigate. The adjuster was given information as to the cause of the damage and the fact that it related to the overflow of surface waters and the drainage problems. However, Cherokee was not notified of the Fraziers' letter during this period.
On August 13, 1978, there was another severe downpour which caused additional damage to the Frazier property as a result of an allegedly inadequate drainage system serving the Warrens' property. Once again, on August 14, 1978, the attorney for the Fraziers wrote Mr. Colbourne, general manager of Warren Properties, advising of the incident and referring to his earlier letter of May 16. After a criticism of Warren's drainage system, the August 14 letter requested Colbourne to "respond immediately as to steps which your company intends to take to correct this situation." The letter ended with the following demand: "Failing to hear from you within the next ten days, we have been instructed to proceed with all available legal remedies in an effort to see that this situation does not continue and to seek damages for the recent problems."
There was another letter of December 15, 1978, referring to a meeting between Mr. Colbourne's brother and the Fraziers' attorney, and it also advised of additional damage to the Fraziers' driveway and concluded with the request "that this condition be remedied immediately at your expense and that you advise us of appropriate steps taken to correct the problem in general."
The evidence showed that during this entire period of time there had been numerous conversations between Colbourne and the Fraziers' attorney. In early 1979, the Warrens engaged a local attorney to negotiate with the City of Mobile regarding the drainage problem. They also hired engineers to study the problem, and the results of that study were...
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