Dumont v. Knapp

• Decision Date: 05 June 1973
• Docket Number: No. 183-71,183-71
• Citation: 131 Vt. 342,306 A.2d 105
• Parties: Paul DUMONT v. Bernard R. KNAPP and Vermont Mutual Fire Insurance Company.
• Court: Vermont Supreme Court

Page 105

306 A.2d 105

131 Vt. 342

Paul DUMONT v. Bernard R. KNAPP and Vermont Mutual Fire Insurance Company.

No. 183-71.

Supreme Court of Vermont.

June 5, 1973.

Ryan & Ryan, Montpelier, for plaintiff.

Downs, Rachlin & Martin, St. Johnsbury, for defendants.

Before SHANGRAW, C. J., and BARNEY, SMITH and KEYSER, JJ., and HILL, Superior Judge.

SMITH, Justice.

This is a petition for a declaratory judgment brought by the plaintiff to determine whether his insurance carrier, Vermont Mutual Fire Insurance Company, is under obligation to defend a suit brought against the plaintiff by Bernard R. Knapp, as well as to pay any damages that might be awarded as the result of such suit. The sole question here, as it was in United States Fidelity & Guaranty Co. v. Giroux, 129 Vt. 155, 274 A.2d 487 (1971), is centered upon the notice, or lack of notice, by the plaintiff to the defendant company of an occurrence, as provided by the terms of the contract.

In the equity proceedings below, the chancellor, after hearing, made findings of fact and entered a decree in favor of the plaintiff, ordering the defendant company to provide a defense for the plaintiff Dumont in the civil action pending against him, brought by Bernard R. Knapp in the Lamoille County Court, and to pay any compensatory damages which might be rendered against Dumont in that suit. The defendant insurance company has appealed from the judgment order.

The chancellor found that the defendant company issued a homeowner's policy to the plaintiff and his wife which was in force and effect until August 20, 1969. One clause in the policy issued to the plaintiff reads:

'When an occurrence takes place, written notice shall be given by or on behalf of the insured to this 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 occurrence, the names and addresses of the injured and of available witnesses.' Finding No. 3.

Also contained in the policy is another condition reading:

'If claim is made or suit is brought against the insured, the insured shall immediately forward to this company every demand, notice, summons or other process received by him or his representative.'

We turn now to the factual situation as set forth in the findings of fact made below. The plaintiff's property is situated in Moscow, Vermont. On January 7, 1968, Bernard Knapp called on the plaintiff while in a very angry and disturbed state of mind. Mr. Knapp was the operator of a snowmobile, and while following a snowmobile trail across the property of the plaintiff, found his progress impeded by a piece of wire which the plaintiff had placed across such snowmobile trail.

Mr. Knapp had a piece of wire which was similar to the aluminum wire the plaintiff had admittedly placed across his property. The angry Knapp threatened the plaintiff with bodily harm and with possible suit if the plaintiff continued to block the snowmobile trail in the future. However, on January 7, 1969, Mr. Knapp did not complain that he had been injured in any way.

Within three days after January 7, 1969, one Jim Jackson called the plaintiff, complimented him on his placement of the wire on his property and stated that Mr. Knapp was in the hospital because of injuries received on January 7, 1969. This call was unsolicited by the plaintiff and he made no inquiry to find out if Mr. Knapp was actually in the hospital. About a month after the date of January 7, 1969, the plaintiff was informed by another person that such person has been told by Knapp that Knapp was contemplating suit against this plaintiff. On or about May 14, 1969, the plaintiff was served with the writ in the law action brought against him by Knapp. This he promptly forwarded to the Stowe Insurance Agency which had issued the policy.

After the service of the writ, the defendant insurance company made some investigation of the matter, including interviewing of the plaintiff, and the plaintiff turned over to the company certain notes or a diary which he had kept. There is no dispute that plaintiff did not give any oral or written notice to the defendant insurance company of any sort whatsoever, prior to the service of the writ on him on May 14, 1969.

No question is raised but that the plaintiff did comply with the provisions of the homeowner's policy issued to him by the defendant company, which provided that he immediately forward to the company the writ received by him in the suit brought against him by Knapp. The question, as before stated, is whether or not such an 'occurrence' took place on January 7, 1969, which required the plaintiff to make a report to the company, as soon as practical.

The findings of the lower court on this subject are found in numbers 15, 16, 18 and 19 of the findings of fact made by the lower court:

'15. The information conveyed to Mr. Dumont on or about February 7, 1971, (sic) to the effect that Mr. Knapp had spoken of bringing suit against him was not conveyed to him by any agent or attorney for Mr. Knapp. There is no evidence before me that Jim Jackson was an agent or attorney of Mr. Knapp.

16. From the evidence presented I do not find that Paul Dumont knew, or acting reasonably ought to have known, that Bernard Knapp was injured on his premises on January 7, 1969.

18. Subsequent to January 7, 1969, Mr. Dumont, it is true, learned indirectly that Mr. Knapp was hospitalized and that he, Mr. Knapp, had told two persons, as herein before found, that he contemplated legal action against him but on the basis of the facts as they existed at the time of the claimed occurrence, the plaintiff, Mr. Dumont, acting as a reasonable prudent man, did not have reason to believe that a claim for damage would arise or even that Mr. Knapp had been injured in any way.

19. The Court is satisfied that the plaintiff's delay in giving notice to his insurer is an excusable delay; the plaintiff has discharged his burden of proof in this respect.'

As this Court said in Nelson v. Travelers Insurance Co., 113 Vt. 86, 98, 30 A.2d 75, 82 (1943):

'(T)he requirement of written notice is of the essence of the insurance contract and failure to comply with it, unless waived by the company or otherwise set at naught, voids any liability of the company under the policy.'

It is the contention of the company here that the lower court committed error in not finding that Paul Dumont violated the notice conditions of the policy by failing to give oral or written notice to the defendant company for a period of more than four months from the time Dumont was informed that Bernard Knapp had been injured on Dumont's premises owning to Dumont's act, and more than three months after Dumont was told that Knapp was contemplating suit against Dumont.

The phrase 'as soon as practicable' in an insurance policy has uniformly been construed to mean with reasonable dispatch, in view of all the circumstances of each particular case. United States Fidelity & Guaranty Company v. Giroux, supra, 129 Vt. at 159, 274 A.2d 487, 490.

'The question of whether the delay is explained or excused is one for the trier to decide and the burden of proof is upon the party who had the duty or giving notice. Delay in notice is generally held excusable in the case of an accident which is trivial and results in no apparent harm, or which furnished no ground for an insured, acting as a reasonable and prudent man, to believe at that time that a claim for damage will arise.' Giroux, Id.; Houran v. Preferred Accident Insurance Co., 109 Vt. 258, 266, 195 A. 253 (1938).

There is no disagreement here that the 'occurrence' in the instant case happened on January 7, 1969. The chancellor found (F. 5, 6, 7 and 8) that on that date, Mr. Knapp did make an angry appearance before Mr. Dumont to complain about Mr. Dumont placing a wire on his own property, at a point on a snowmobile trail. But he did not make a claim that this wire had been the cause of any injury to him or his property, nor did he inform Mr. Dumont that he had been injured in any way. The threat by Mr. Knapp of possible suit against Dumont was only 'if he, Mr. Dumont, continued to block what he, Mr. Knapp, called his snowmobile trail across Mr. Dumont's property'. Such findings have not been questioned here and are amply supported by the evidence given below.

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