England v. American Southern Insurance Company

• Decision Date: 29 May 1967
• Docket Number: No. 11083.,11083.
• Citation: 380 F.2d 137
• Parties: Oscar ENGLAND, Appellant, v. AMERICAN SOUTHERN INSURANCE COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

380 F.2d 137 (1967)

Oscar ENGLAND, Appellant, v. AMERICAN SOUTHERN INSURANCE COMPANY, a corporation, Appellee.

No. 11083.

United States Court of Appeals Fourth Circuit.

Argued April 6, 1967.

Decided May 29, 1967.

D. Grove Moler, Mullens, W. Va., for appellant.

Robert M. Richardson, Bluefield, W. Va., for appellee.

Before HAYNSWORTH, Chief Judge, and SOBELOFF and BRYAN, Circuit Judges.

ALBERT V. BRYAN, Circuit Judge:

Breach of the condition calling for notice to the insurer of an insured's accident, American Southern Insurance Company asserts, voided its responsibility to defend and save Josephine Anderson and her driver harmless under an automobile liability policy it had issued to her. The company sued in the District Court for such a declaration. From a decree to this effect against the defendants — the named insured, the driver of the Anderson automobile, who was an additional insured, and a tort claimant against the two insureds — the claimant appeals. We think there was no forfeiture of coverage of the insured and the claimant; as to them the decree should be reversed. As to the driver, we affirm.

Decision issued on cross-motions for summary judgment and a fair and clear statement of the facts is found in the opinion of the trial judge as follows.

"On September 9, 1964, defendant Janet Shufflebarger, the adult married daughter of defendant Josephine Anderson, who at the time resided at her mother\'s home, drove her mother\'s automobile, on which plaintiff held liability insurance, on an errand for and at the direction of her mother. In the course of this trip Mrs. Shufflebarger drove into the rear of a stopped pickup truck owned and operated by defendant Oscar England. Physical damage to the vehicles was minimal, the right front fender of the Anderson car having been dented and the rear bumper of the England truck having been indented. At the time, neither party appeared to have sustained physical injuries, however, later that evening Mr. England allegedly `blacked out\' and was hospitalized as a result of the accident.

"Mrs. Shufflebarger, because of concern over her mother\'s health, did not advise Mrs. Anderson of the mishap upon returning home that evening. When asked about the dented fender a few days later, the daughter explained that she had struck a pole. Mrs. Anderson had the damage repaired at an expense of $51.24. There is no contention that Mrs. Anderson had any knowledge of the actual cause of the dent until January 1966, when so advised by an insurance adjuster.

"To say that Mrs. Shufflebarger has been less than candid concerning this accident is as charitable as the circumstances allow. Within a few days of the occurence, Mrs. Oscar England apparently advised Janet Shufflebarger of the injuries claimed to have been suffered by her husband. Although Mrs. Shufflebarger contends that she only confirmed what Mrs. England was able to discover through an independent investigation, the Englands became aware that John Shufflebarger, Janet\'s husband, carried automobile insurance through Flat Top Insurance Agency, Bluefield, West Virginia, and advised the agency of the accident.

During this period Mr. Shufflebarger was away from the Anderson residence except on week-ends and he had no knowledge of the accident until October 1965.

"On January 27, 1965, an insurance adjuster representing Mr. Shufflebarger\'s insurance carrier interviewed Mrs. Shufflebarger and took a signed statement from her regarding the accident. She contends that she did not read the statement before signing it and that it contains a number of inaccuracies. However, she does admit having told the adjuster that at the time of the accident she was driving her husband\'s automobile.

"Negotiations for settlement of the matter between the Englands and the insurance carrier for the Shufflebargers proved fruitless and a suit was instituted in the Circuit Court of Wyoming County, West Virginia against John and Janet Shufflebarger. Notice of this suit was apparently the first knowledge John Shufflebarger had of the accident. His wife thereafter told him of the actual events and on December 21, 1965, they made a statement to an insurance adjuster wherein Mrs. Shufflebarger disclosed that she was driving her mother\'s automobile at the time of the accident. Shortly thereafter, the adjuster advised Mrs. Anderson of this and she informed her own insurance carrier, the plaintiff herein, the next day.

"Plaintiff seeks to deny liability on the ground of failure to give timely notice, and the pertinent provisions of the insurance contract relied upon are as follows:

`Persons Insured

`The following are insured under Part I:

`(1) The named insured and any resident of the same household,

`(2) any other person using such automobile, provided the actual use thereof is with the permission of named insured;

`Definitions

`Under Part I:

`"named insured" means the individual named in Item I of the declarations and also his spouse, if a resident of the same household; "insured" means a person or organization described under "persons insured";

`CONDITIONS

`3. Notice: In the event of an accident, occurrence or loss, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the insured to the company or any of its authorized agents as soon as practicable. * * *\'"

In our judgment insurance of the named insured, Josephine Anderson, remained despite the delinquency of her daughter in fulfilling her obligation to report the accident. Her mother did give the requisite notice "as soon as practicable" and hence she did not lose protection.

For this conclusion, we start with the policy's provision that: "The insurance afforded under Part I liability coverage applies separately to each insured against whom claim is made or suit is brought * * *." This concept...