Dairyland Ins. Co. v. Marez
| Decision Date | 28 June 1979 |
| Docket Number | No. 78-493,78-493 |
| Citation | 42 Colo.App. 536,601 P.2d 353 |
| Parties | DAIRYLAND INSURANCE COMPANY, a Wisconsin Corporation, Plaintiff-Appellee, v. Emiliano MAREZ, James Marez, Bernadette Valdez and Julia Valdez a/k/a Julia Valdez Montoya, Defendants-Appellants. . II |
| Court | Colorado Court of Appeals |
Pryor, Carney & Johnson, Irving G. Johnson, Denver, for plaintiff-appellee.
Frye & Sawaya, Michael G. Sawaya, Denver, for defendants-appellants Emiliano Marez and James Marez.
Marilyn T. Meadoff, Denver, for defendants-appellants Valdez and Montoya.
Defendants appeal from a declaratory judgment for plaintiff, Dairyland Insurance Company, in which the court concluded that there was no coverage under plaintiff's policy of insurance. We affirm.
Plaintiff was the insurer of an automobile owned by defendant Julia Valdez Montoya. At the time of the accident, Montoya's daughter, defendant Bernadette Valdez, was driving the car, and defendant James Marez was riding a bicycle. Marez collided with the automobile and sustained serious injuries. Neither Valdez nor Montoya notified plaintiff or its agent of the accident. Two and a half years later, Marez filed suit against Valdez and Montoya and served them with a summons and complaint. They did not notify plaintiff of the suit, nor did they forward the suit papers to plaintiff. Plaintiff learned of the suit only when Marez' attorney happened to mention the suit to plaintiff's claims adjuster during a meeting regarding an unrelated matter.
Plaintiff brought this declaratory judgment action alleging that defendants Montoya and Valdez breached two conditions of the insurance policy, thereby relieving plaintiff of liability. The conditions in the insurance contract read as follows:
"1. Notice of Accident . . .
When an accident occurs written notice shall be given by or on behalf of the Insured to the company or any of its authorized agents as soon as practicable. Such notice shall contain particulars sufficient to identify the Insured and also reasonably obtainable information respecting the time, place and circumstances of the accident, the names and addresses of the injured and of available witnesses.
2. Notice of Claim or Suit . . .
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."
Ruling in favor of plaintiff, the trial court concluded that defendant's failure to notify plaintiff of the accident or to forward suit papers was unexcused and constituted a breach of contract.
Defendants first argue that the trial court erred in refusing to consider evidence that plaintiff was not prejudiced by the failure to comply with the two conditions of the contract. We disagree.
No Colorado case has addressed the question whether prejudice is a factor in determining an insurer's liability when the failure to give notice or forward suit papers is unexcused. In Barnes v. Waco Scaffolding & Equipment Co., Colo.App., 589 P.2d 505 (1978), we held that prejudice is irrelevant where delayed notice is excused. Where failure to give notice is unexcused, the Supreme Court, without addressing the issue of prejudice, has held that the insurer is relieved from liability under the contract. Certified Indemnity Co. v. Thun, 165 Colo. 354, 439 P.2d 28 (1968). See Barclay v. London Guarantee & Accident Co., 46 Colo. 558, 105 P. 865 (1909). Thus, under Colorado law, prejudice has not been a consideration regardless of whether notice is excused. We therefore hold that the trial court did not err in not determining whether plaintiff was prejudiced by the delay.
In so holding we are not unaware of Jennings v. Horace Mann Mutual Insurance Co., 549 F.2d 1364 (10th Cir. 1977), in which the federal appellate court deduced that under Colorado case law prejudice is a factor to be considered in this type of case. We are of the opinion, however, not only that the controlling Colorado cases dictate the contrary, but also that the rule of law w...
To continue reading
Request your trial
-
Marez v. Dairyland Ins. Co.
...Trial Lawyers Ass'n. LEE, Justice. We granted certiorari to review the opinion of the court of appeals in Dairyland Insurance Co. v. Marez, 42 Colo.App. 536, 601 P.2d 353 (1979). We affirm the judgment of the court of On September 18, 1973, James Marez was seriously injured when his bicycle......
-
Spencer v. Kemper Investors Life Ins. Co.
...We find no error. An insurance policy is to be construed according to the same rules as any other contract. Dairyland Insurance Co., v. Marez 42 Colo.App. 536, 601 P.2d 353 (1979), aff'd 638 P.2d 286 (Colo.1981). The terms of the policy govern the rights of the parties concerning reinstatem......
-
Leader Nat. Ins. Co. v. Lindsey
...the contract to third party victims. See: Watts v. Preferred Risk Mutual Ins. Co., 423 So.2d 171 (Ala.1982); Dairyland Ins. Co. v. Marez, 42 Colo.App. 536, 601 P.2d 353 (1979); State Farm Mutual Automobile Ins. Co. v. Porter, 221 Va. 592, 272 S.E.2d 196 (1980); Hallman v. Marquette Casualty......
-
Holt v. Utica Mut. Ins. Co.
...Guar. Fund v. Helme, 153 Ariz. 123, 735 P.2d 445 (Ariz.App.1986); aff'd, 153 Ariz. 129, 735 P.2d 451 (1987); Dairyland Ins. Co. v. Marez, 42 Colo.App. 536, 601 P.2d 353 (1979). The undisputed facts establish Anderson's violation of the cooperation clause of the Utica policy and prejudice to......
-
CHAPTER 7 CURRENT ENVIRONMENTAL INSURANCE COVERAGE ISSUES
...of whether notice is excused. USAA v. Allstate Insurance Company, 662 P.2d 1102 (Colo. App. 1983); Dairyland Insurance Company v. Marez, 601 P.2d 353 (Colo. App. 1979). An excuse for untimely notice can be as simple as a well-founded belief that the insured is not liable for the damage [Pag......