Continental Cas. Co. v. Shoffstall

• Decision Date: 05 May 1967
• Docket Number: No. 7469,7469
• Citation: 198 So.2d 654
• Parties: CONTINENTAL CASUALTY COMPANY, a corporation, Appellant, v. R. SHOFFSTALL, Appellee.
• Court: Florida District Court of Appeals

Page 654

198 So.2d 654

CONTINENTAL CASUALTY COMPANY, a corporation, Appellant, v. R. SHOFFSTALL, Appellee.

No. 7469.

District Court of Appeal of Florida, Second District.

May 5, 1967.

Rehearing Denied June 1, 1967.

John R. Bush, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.

Howard L. Garrett, of Garrett & Garrett, Tampa, for appellee.

PIERCE, Judge.

In this case Continental Casualty Company appeals to this Court from a judgment rendered by the Civil Court of Record for Hillsborough County in a suit brought by R. Shoffstall against the Company to recover under a 'Blanket Athletic Accident Expense Policy' for medical and hospital expenses incurred in connection with an injury suffered by the plaintiff's minor son, William Richard Shoffstall.

The minor Shoffstall, by his father as next friend, filed suit against the Company on October 22, 1965, alleging the existence of a group athletic policy, which policy allegedly provided coverage for expenses incurred for injuries suffered 'while engaging in football practice' at the high school. Written defenses were filed by the Company which, after making general denial of liability urged two affirmative defenses, namely, (1) that neither written notice nor proof of loss were given the Company within the time provided by the policy, and (2) the injury for which the minor plaintiff sought reimbursement occurred while playing basketball during February, 1965, rather than at football practice in November, 1964, as alleged in the Statement of Claim.

Trial of the issues was held before the Honorable Henry O. Wilson, Judge of the Court, acting as both judge and jury, at which numerous witnesses testified, medical depositions were received, and other documentary exhibits were filed. Thereafter, on July 28, 1966, the trial Judge entered his 'Findings of Fact and Final Judgment', wherein he found inter alia that the minor plaintiff had injured his back on November 9, 1964, 'during a football practice session, and during which he was tackled from behind by a helmeted player, the helmet striking young Shoffstall in the small of his back, as a consequence of which he suffered' physical injuries and muscle spasm, and as a proximate result he was hospitalized from about March 3, 1965 to March 24, 1965, and forced to undergo surgery for a herniated disc.

The Court further found that the Company was not notified of the injury until early in May, 1965, but that 'the defendant (Company) was not prejudiced by the failure to give notice within the time period provided by the policy' and that 'plaintiff caused notice to be given the defendant within a reasonable time' after becoming aware of the injury and that he was covered by the policy. Damages for medical and hospital expenses were itemized totalling $1,048.95 which, after allowing for a $500.00 deductible in the policy, left a net amount recoverable by the plaintiff of $548.95. Judgment against the Company was accordingly entered.

The Company has appealed said judgment to this Court and assigns as error the failure of plaintiff to notify the Company 'within twenty days after the incidence of the injury upon which the claims herein are based' and that the evidence of 'causative injury as covered by the policy' was not sufficient to support the judgment. A careful review of the entire record and the briefs of the parties has failed to convince us that the Company has carried its burden of demonstrating reversible error in the judgment complained of, and we therefore affirm.

The policy contained the following provisions as to notice of injury and proof of loss:

'Written notice of injury upon which claim is based must be given to the Company within twenty days after the date such injury occurred.

'Affirmative proof of loss on which claim may be based must be furnished to the Company not later than ninety days after the date of such loss.'

The applicable law with respect to such time limitations shows a marked relaxation from the rigid specifications of such provisions and establishes instead the criterion as being whether the Company has in fact been prejudiced by any delay in receiving notice.

The policy itself provides that--

'(f)ailure to furnish notice or proof within the time provided in this policy shall not invalidate or reduce any claim if it shall be shown not to have been reasonably possible to furnish such notice or proof and that such notice or proof was furnished as soon as was reasonably possible.'

As before stated, the trial Court, in entering its judgment, specifically found that notice was given within a reasonable time after plaintiff became aware of the injury, and the Company was not prejudiced by the delay. Such finding, buttressed as it is by substantial, credible evidence, warrants the judgment entered.

Our views find support in the applicable Florida decisions. Reliance Life Ins. Co. of Pittsburgh, Pa. v. Lynch, 1940, 144 Fla. 50, 197 So. 723; Franklin Life Ins. Co. v. Tharpe, 1938, 130 Fla. 546, 178 So. 300; Employers Casualty Company v. Vargas, Fla.App.1963, 159 So.2d 875; American Fire and Casualty Company v. Collura, Fla.App.1964, 163 So.2d 784; Hartford Accident and Indemnity Company v. Mills, Fla.App.1965, 171 So.2d 190.

In Reliance Life, the Supreme Court of Florida held (text 197 So. 724):

'It seems to be settled law in Florida that a default in serving notice or proof of loss as required by a policy may be excused where the circumstances are such as to render strict compliance with the requirements impossible or unreasonable and the insured has not failed to use due diligence.'

In Franklin Life, the Supreme Court held (text 178 So. 304):

'A default in serving notice or proofs of loss as required by the policy may be excused, where the circumstances are such as to render strict compliance with the requirement impossible or unreasonable, and insured has not failed to use due diligence.'

In Employers Casualty, this 2nd District Court held (text 159 So.2d 877):

'As stated in State Farm Mutual Auto. Insurance Co. v. Ranson, Fla.App., 121 So.2d 175 (1960), cited by both parties, a policy provision as to the time when notice of an accident must be given, such as, 'as soon as practicable,' has been construed to mean that notice is to be given with reasonable dispatch and within a reasonable time in view of all the facts and circumstances of the particular case.

'Under the circumstances in this case, we cannot say that it has been made to appear that the very able trial judge was in error in holding in effect that the insured had given notice of the accident 'as soon as practicable. " (Emphasis in text).

And in American Fire and Casualty, this same 2nd District Court, after quoting the above inserted portion of Employers Casualty, commented:

'In such cases involving breach of the 'notice' clauses (i.e., the 'delayed notice' cases), the courts are very seldom concerned with the question of prejudice to the insurer; rather, the primary considerations are usually those indicated by the following quotation from 7 Am.Jur.2d Automobile Insurance, § 143:

"Policy provisions as to the time when notice of an accident must be given take a variety of forms such as 'immediate,' 'prompt,' 'forthwith,' 'as soon as practicable,' and 'within a reasonable time.' ...