DiProspero v. Nationwide Mut. Fire Ins. Co.

• Decision Date: 06 June 1973
• Docket Number: No. 95325,95325
• Citation: 30 Conn.Supp. 291,311 A.2d 561
• Court: Connecticut Court of Common Pleas
• Parties: Ann DiPROSPERO v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY et al.

Page 561

311 A.2d 561

30 Conn.Supp. 291

Ann DiPROSPERO v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY et al.

No. 95325.

Court of Common Pleas of Connecticut, Fairfield County, at Bridgeport.

June 6, 1973.

Keogh, Candee & Burkhart, Norwalk, for plaintiff.

Pullman, Comley, Bradley & Reeves, Bridgeport, for defendants.

LEVINE, Judge.

The plaintiff owns commercial premises at 51 Danbury Road, Wilton. She leased the premises in February, 1969, to Matthew Piazza for use as a clothing store. As part of the leasing agreement, Piazza was required to secure fire insurance coverage on the structure, naming the plaintiff as a coinsured as her interest might appear.

Piazza did procure the issuance of a policy by the defendant Nationwide, for a three-year term, from March 6, 1969 to March 6, 1972, in the sum of $20,000. The policy named Piazza, his associate, William Pinciaro, and the plaintiff as coassureds as their interest might appear. The address of record in the policy for all three individuals was 51 Danbury Road, Wilton. The plaintiff's residence is in Westport.

On or about July 21, 1970, a fire damaged a substantial part of the plaintiff's building in Wilton. The appraised value of the loss was $12,637, based on an estimate by the plaintiff's expert. When the plaintiff attempted to secure payment of the loss from Nationwide, she was advised that the policy had been cancelled as of September 2, 1969, owing to nonpayment of premium. The cancellation notice was in the form of a letter, emanating from the Hamden office of Nationwide, dated August 19, 1969, effective September 2, 1969, and mailed to Piazza, Pinciaro and the plaintiff at the Wilton address.

The policy had been procured through the defendant Paul A. Sharron, of Norwalk, an agent for Nationwide.

The plaintiff commenced the instant action, for reimbursement of the loss, against both Sharron and Nationwide.

I

The writ originally contained four counts. At the time of trial, the fourth count was withdrawn by the plaintiff and the case went to the jury solely on three counts. The first and third counts asserted liability against Nationwide, while the second count sought recovery against Sharron.

The sole special defense filed by the defendants was that the policy had been cancelled, owing to the claimed nonpayment of premium, by the letter of August 19, 1969, and therefore the defendants were not liable for the loss in July, 1970.

The plaintiff denied actual receipt of the notice of cancellation. She stressed the fact that the notice was addressed to the store premises, and not to her residence. She further alleged that on or about August 20, 1969, her regular insurance agent, John Kallaugher, had notified Sharron to endorse the policy so that it would not be cancelled without five days' prior written notice to the plaintiff. At trial, Sharron denied receiving this letter.

At the conclusion of the evidence, the defendants made a motion for a directed verdict. Decision was reserved thereon, pursuant to § 255 of the Practice Book.

The jury returned a verdict against both defendants for $13,965. The defendants thereafter filed a motion for judgment, under § 255 of the Practice Book, and the standard motion to set aside the verdict because it was contrary to law and against the evidence. Both motions, however, as the defendants' counsel stated in oral argument, are limited to two basic objections to the charge, to be discussed hereinbelow.

II

The defendants initially protested the portion of the court's charge which stated that to prove their special defense, under the policy terms, they must establish that the plaintiff actually received the cancellation notice of August 19, 1969.

Section 38-98 of the General Statutes makes it mandatory that a fire insurance policy contain a provision giving the insurer a right to cancel the policy by 'giving' the insured a five-day written notice of cancellation. The statute does not contain any express provision as to the address to which the notice shall be sent. It is even silent as to the precise mode of 'giving' the notice-whether by mail, in person, or otherwise.

The actual text of the DiProspero policy closely follows § 38-98 by providing for cancelation at any time by Nationwide by 'giving' a five-day written notice to the insureds.

Where the statute, or policy provision, requires the 'giving' of notice to the insured, without stipulating any form or way in which the notice must be given, actual receipt by the insured of such notice is generally recognized as a condition precedent to valid cancellation of the policy. Therefore, a cancellation notice contained in a letter mailed by the insurer but not received by the insured is ineffective as a valid cancellation. Powell v. Lititz Mutual Ins. Co., 419 F.2d 62; 43 Am.Jur.2d 455, Insurance, § 408 (stating that this rule is 'universally recognized'); note, 64 A.L.R.2d 982, 994; 6A Appleman, Insurance Law and Practice § 4186, p. 554.

In Powell v. Lititz Mutual Ins. Co., supra, 419 F.2d 66, the court said: 'By the terms of the policy more than mere mailing was required. The insurer had to give the insured written notice. We hold that because of these policy terms if the notice was not received by the insured the policy was not cancelled.'

In Boyce v. National Commercial Bank & Trust Co., 41 Misc.2d 1071, 247 N.Y.S.2d 521 aff'd, 22 A.D.2d 848, 254 N.Y.S.2d 127, involving an action in New York against the defendant Nationwide, likewise on a fire insurance policy, Nationwide claimed that a notice of cancellation had been mailed to the plaintiffs owing to nonpayment of premium. The plaintiffs denied receipt of the notice. The policy provisions and the New York statute pertaining to cancellation notices (N.Y.Ins.Law § 168, McKinney's Consol.Laws, c. 28) were either identical or substantially similar to the corresponding provisions in the instant case. In ruling for the plaintiffs, the court stated (p. 1074, 247 N.Y.S.2d p. 524): 'In the cases dealing with interpretation of a provision that requires that a notice should be 'given', it has been held that the requirement is not fulfilled until the party entitled to notice has received the required notice.' (Italics supplied.) In accord was Fifty States Management Corporation v. Public Service Mutual Ins. Co., 67 Misc.2d 778, 785, 324 N.Y.S.2d 345, citing Boyce.

The statutory mandate as to notice must be strictly followed. 45 C.J.S. Insurance § 449, p. 83.

There was ample evidence from which the jury could conclude that Nationwide's cancellation letter dated August 19, 1969, was never, in fact, actually received by the plaintiff. Accordingly, the jury could reasonably find that the defendants had not sustained their burden of proof on this issue. Clary v. Empire Mutual Ins. Co., 30 Conn.Sup. 113, 303 A.2d 26.

Research did not reveal any Connecticut authorities directly in point. The court believes, however, that the text and case citations referred to herein above contain a well-reasoned analysis of the prevailing law, which should be applied herein. The defendants' counsel did not furnish the court with any authorities to the contrary, in any jurisdiction whatsoever.

Westmoreland v. General Accident Fire & Life Assurance Corporation, 144 Conn. 265, 129 A.2d 623, is clearly distinguishable. The policy provision in that case expressly referred to cancellation by mail. It stated that the cancellation could be effected by 'mailing' a notice to the 'insured at the address shown in this policy.' This is not the situation in the instant case.

III

The defendants' second and final attack on the charge relates to the portion thereof dealing with the invalidity of the cancellation notice because of its failure to comply fully with § 38-98 of the General Statutes. Section 38-98, containing mandatory requirements for fire insurance policies in Connecticut, states as follows, with respect to cancellation: 'Notice of cancellation shall state that said excess premium (if not tendered) will be refunded on demand.'

Section 38-99(a) of the General Statutes provides that no fire insurance policy shall be issued in this state unless it...