Employers Nat. Ins. Co. v. Parker

• Decision Date: 11 June 1970
• Docket Number: 7 Div. 838
• Parties: EMPLOYERS NATIONAL INSURANCE COMPANY, a Corporation v. Helen S. PARKER et al.
• Court: Alabama Supreme Court

Page 699

236 So.2d 699

286 Ala. 42

EMPLOYERS NATIONAL INSURANCE COMPANY, a Corporation v. Helen S. PARKER et al.

7 Div. 838.

Supreme Court of Alabama.

June 11, 1970.

Lange, Simpson, Robinson & Somerville and Reid B. Barnes, Birmingham, for appellant.

Love & Love, Talladega, for appellees.

BLOODWORTH, Justice.

On original submission, this case was assigned to another justice, and has just been reassigned to the writer.

The appeal is from a final decree in equity rendered on a bill for declaratory judgment seeking a declaration of rights under an automobile liability insurance policy.

In its final decree, the circuit court of Talladega County decreed: that an insurance policy issued by complainant Employers National Insurance Company covering respondent Billie G. Parker's Volkswagen automobile was in full force and effect on December 5, 1966, the date of an accident involving that automobile and one driven by an uninsured motorist; that the prosecution to judgment of a cause of action by the wife of the insured, respondent Helen S. Parker, against the uninsured motorist did not work a forfeiture of the policy; and that the medical payments provision in the insurance policy did not affect the amount of the insurer's liability under the uninsured motorists provision.

Three issues are presented on this appeal: whether the trial court was palpably wrong in its conclusion that the insurer failed to prove the mailing of a notice of cancellation of the policy prior to the date of the accident; whether the insurer's denial of liability under the policy on the ground of previous cancellation rendered inoperative a policy provision requiring that the insured obtain the insurer's written 'consent to sue' before prosecuting any action to judgment against the uninsured motorist; whether payments made by the insurer to the insured under the medical payments coverage are due to be deducted from the amount for which the insurer is liable to the insured under the uninsured motorists coverage. Having resolved these issues in favor of the insured for reasons which hereinafter appear, we think the decree should be affirmed.

On August 10, 1966 Employers National Insurance Company, issued two automobile liability insurance policies to Billie G. Parker of Route 1, Eastaboga, Alabama, one numbered 213003 covering a Volkswagen and one numbered 213004 covering a pickup truck.

An automobile accident occurred on December 5, 1966, involving the Volkswagen driven by Helen S. Parker, wife of insured, and an uninsured vehicle driven by Mary Johnson. When Mrs. Parker and her passenger, Mrs. Joyce Dulaney, made claims against Employers under the uninsured motorists coverage, the latter denied coverage, contending that both policies, number 213003 and number 213004, had been cancelled on October 28, 1966, pursuant to a cancellation clause in the policy, viz:

'* * * This policy may be canceled by the company by mailing to the insured named in Item 1 of the declarations at the address shown in this policy written notice stating when not less than ten days thereafter such cancelation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice. * * *'

The insured Parker admits receiving notice of cancellation for the truck policy (No. 213004) but denies receiving any notice for the Volkswagen policy (No. 213003) prior to the accident. Parker does not deny that the mailing of notice of cancellation is sufficient proof of notice, but he contends that the insurer's proof was insufficient to show that a notice of cancellation of policy number 213003 was mailed.

John Clarence Bunnell, an employee of Burnham, Luck and Hughes, Inc., a Birmingham subsidiary of Employers National Insurance Company, testified that he was authorized to cancel policies for Employers. He testified that there was a custom or procedure followed in his office as to cancellation, which consisted of: his writing a memo to his secretary, Miss Tyler, designating the policy to be cancelled; her computing the premium to be returned, typing up the notice of cancellation on a form provided by the insurer for that purpose, and, returning the original plus four carbon copies to Bunnell, who would sign the original (for the insured) and would initial two other copies (for the agent and the mortgagee, if any). Miss Tyler testified that she would then address an envelope to the insured and place the original, signed notice of cancellation in it. She would also type the name and address of the insured on a 'Certificate of Mailing' form furnished by the post office and affix this form to the envelope. She would then take the envelope to the post office where, for postage, a postal employee would compare the name and address on the envelope with that on the Certificate of Mailing affixed thereto, and would postmark both the envelope and the Certificate, tearing off and returning the latter to Miss Tyler. (The postal employee did not see the contents of the envelope.) After returning to the office, Miss Tyler would affix this Certificate of Mailing to the fourth carbon copy of the notice of cancellation to be mailed to the home office of Employers in Dallas, Texas. Although Miss Tyler said that, to the best of her recollection, she followed the customary procedure she had outlined with respect to both notices of cancellation in this case, the following exchange took place on cross-examination:

'Q You have handled literally dozens of these cancellations haven't you, prior to February 17th?

'A October 17th?

'A Yes, sir.

'Q And you can't specifically remember either one of them, is that right?

'A No, sir.'

This answer indicates (as counsel for both parties assume) a denial by Miss Tyler of any specific recollection of the notices of cancellation at issue.

Although Mr. Bunnell testified that separate envelopes and separate mailings would have been used for the two notices of cancellation allegedly sent to Parker, Employers introduced only one Certificate of Mailing bearing the name and address of the insured and postmarked October 17, 1966. That Certificate bore the number 212003 (a number which had been added by Miss Tyler to expedite filing procedure) which fails to correspond to the number of either of the two policies alleged to have been cancelled. Miss Tyler attributed this to a typographical error.

Mrs. Hazel Poole, employee of Weatherly Insurance Company of Anniston, the local agent, testified for Employers that about October 18, 1966, she received in the office of the Weatherly Agency copies of two notices of cancellation stapled together, one for policy number 213003 and one for policy number 213004 (neither of which was signed or initialed); that handwritten notations thereon, viz: 'Paid ck #666--12-5-66' on 213003 and 'Paid 11-4-66--ck #620' on 213004, were hers; that she mistakenly thought $13.00 was the refund due for both policies, and on November 4, 1966, she mailed a check for that amount to Billie G. Parker together with a typed letter explaining that the check was a refund for cancelled policy number 213003 (a purported copy of this letter, introduced in evidence, referred to policy number 213003, but the check, likewise introduced, referred to policy number 213004). She denied having enclosed with the check a handwritten letter explaining that the truck policy was being cancelled because heavy traffic at Bynum where Mr. Parker worked created too great a risk. She testified further that Weatherly Agency had received an account sheet on November 14, 1966 from Burnham, Luck, and Hughes (which was introduced in evidence), which indicated that both policies, 213003 and 213004, had been cancelled. She further testified that on December 5, 1966, the date of Mrs. Parker's accident, she happened to discover that Parker was due another $13.00, and mailed him a check for that amount with a handwritten note apologizing for the delay; she denied that she had received notice of the accident at that time.

The insured Billie G. Parker testified that around the middle of October he received notice that the policy covering his pick-up truck was being cancelled; that a while later he received a check for $13.00 accompanied by a handwritten note explaining that the policy on his pick-up had been cancelled because congested traffic conditions around Bynum where he worked created too great a risk of accident; and that he received no typewritten letter from Weatherly Agency referring to cancellation of policy number 213003. He testified that he then obtained another policy of insurance for the pick-up. He further testified that on December 5, 1966, in a telephone conversation, he informed someone identifying himself as James Weatherly about the accident (which Weatherly denied); that on December 7, 1966 (two days after the accident), he received by mail a check for $13.00 along with a note apologizing for the delay in refunding the premium.

This case was tried under Title 7, § 372(1) ¹ and we are bound to consider only 'such testimony as is relevant, material, competent, and legal * * * (but we are not) required to point out what testimony or evidence should be excluded or not considered.' After a review of all the evidence we are not convinced that the decision of the trial court, which heard the evidence ore tenus, is plainly wrong or unjust. State v. City Wholesale Grocery Co., 283 Ala. 426, 218 So.2d 140 (1969). It is well settled that where the evidence is in conflict, the decision of the trial court, which heard the evidence ore tenus, is presumed correct on appeal and will not be disturbed unless plainly wrong or unjust. State v. City Wholesale Grocery Co., supra.

We think the trial court could find that Employers failed to satisfy the burden of proof placed upon the insurer to prove the policy was cancelled. It could find that the evidence 'was not of such definite and specific character as to show conclusively the mailing of the notice...