Di Francesco v. Zurich General Acc. & Liability Ins. Co., Ltd.

• Decision Date: 18 October 1926
• Citation: 134 A. 789,105 Conn. 162
• Parties: DI FRANCESCO v. ZURICH GENERAL ACCIDENT & LIABILITY INS. CO., LIMITED.
• Court: Connecticut Supreme Court

134 A. 789

105 Conn. 162

DI FRANCESCO v. ZURICH GENERAL ACCIDENT & LIABILITY INS. CO., LIMITED.

Supreme Court of Errors of Connecticut.

October 18, 1926

Appeal from Superior Court, New Haven County; John R. Booth, Judge.

Action by Maria Di Francesco against the Zurich General Accident &amp Liability Insurance Company, Limited, on a policy of insurance against liability for loss by a third person. Verdict and judgment for plaintiff for $6,128, and appeal by defendant. No error.

Philip Pond and Arthur W. Chambers, both of New Haven, for appellant.

Walter J. Walsh and John J. Sullivan, Jr., both of New Haven, for appellee.

CURTIS, J.

The record discloses that there was no controversy as to the following facts: The plaintiff, on March 24, 1923, was insured by a policy of the defendant, wherein it agreed to indemnify her against loss from the liability imposed by law upon her for damages on account of bodily injuries accidentally suffered or alleged to have been suffered by any person as a result of the ownership, maintenance, or use of the automobile then owned by her. The policy further provided that the defendant was to give prompt and efficient service (a) in investigating cases of bodily injuries or death or of damage to property of others coming within agreements I and II of the policy; (b) in conducting negotiations for the settlement of or in contesting any claims made on account of such cases of bodily injuries or death, or of damage to property of others; and (c) in defending any suit brought to recover damages on account of such cases of bodily injuries or death, or of damage to property of others, unless or until the company may elect to effect a settlement of such suit, and to pay in addition to damages all expenses incurred by the company for investigation, negotiation or defense, all costs taxed against the assured in any legal proceedings defended by the company, all premium charges on attachment or appeal bonds required in all such legal proceedings, and all interest accruing after entry of judgment, and to reimburse the assured for the cost of such immediate surgical relief as shall be imperative at the time of the accident.

On March 24, 1923, the husband of the plaintiff was driving her automobile on a highway in West Haven, and one Lottie Kolinsky was at the same time and place severely injured by being struck by an automobile, which she claimed to have been this automobile of the plaintiff.

On May 7, 1923, Lottie Kolinsky brought an action against this plaintiff for damages for such injury, alleging that the servant of the plaintiff driving her car negligently injured her while she was in the exercise of due care. The plaintiff denied these allegations. Upon the trial Lottie Kolinsky recovered a verdict upon which was entered judgment for $4,500. From the judgment the plaintiff herein (defendant in the other action), on advice of her counsel, appealed the action to the Supreme Court of Errors, which court affirmed the judgment. By the terms of the judgment the plaintiff was obliged to pay to Lottie Kolinsky the sum of $4,500 with interest thereon from the 18th day of December, 1924 together with the costs, and to pay other expenses incurred in such action--in all amounting to about $6,000.

The defendant refused to pay the plaintiff the amount of her obligation to Lottie Kolinsky, and others arising upon the trial and judgment, because of her failure to comply with the special conditions contained in the policy, in a portion of paragraph 3 of the general conditions, upon the performance of which the undertaking of the defendant was dependent.

It is obvious under the admitted facts that the failure to give the defendant a written notice of a situation as to which its local agent and adjuster was given oral notice and acted thereon did not prejudice the defendant. The failure to give the defendant a " prompt written notice" was a defense under certain conditions, but such failure can cease to be a defense if waived as is here claimed.

The plaintiff offered evidence from which the jury could reasonably have found that these facts were proven: The husband of the plaintiff was driving her automobile in question on Saturday evening, March 24, 1923, and found Lottie Kolinsky lying in a highway in West Haven in an injured condition, and took her in the car to the New Haven hospital; and on the following Monday he told the general insurance agents representing the defendant in New Haven about his finding the girl and taking her to the hospital and that the agents said, " Nobody makes a claim," and " Anything happen I will let you know." The husband was arrested about April 16th for reckless driving on March 24th, and the case was continued in the West Haven town court until April 30th, when the case was tried. At the trial Mr. Roche, the adjuster of the defendant, was present, and at his request the husband went, after the trial, to Mr Roche's office and told him what he claimed happened on March 24th, and Mr. Roche wrote it on paper and the husband signed it, and Mr. Roche also wrote on this paper, which was for the husband to sign, " I understand fully that the Company is accepting the report with a full reservation of its rights regarding failure to report an accident," and also, " I will inform my wife accordingly, as the car and insurance policy are in her name. No claim for damages has been made as yet." The husband did...