General Insurance Co. v. Gilliam County High School Dist.

• Decision Date: 23 June 1964
• Docket Number: Civ. No. 63-430.
• Parties: GENERAL INSURANCE COMPANY, a corporation, Plaintiff, v. GILLIAM COUNTY HIGH SCHOOL DISTRICT and Denise G. Duus, Defendants.
• Court: U.S. District Court — District of Oregon

234 F. Supp. 109

GENERAL INSURANCE COMPANY, a corporation, Plaintiff, v. GILLIAM COUNTY HIGH SCHOOL DISTRICT and Denise G. Duus, Defendants.

Civ. No. 63-430.

United States District Court D. Oregon.

June 23, 1964.

Kenneth E. Roberts, of Mautz, Souther, Spaulding, Kinsey & Williamson, Portland, Or., for plaintiff.

M. D. Van Valkenburgh, of Heisler & Van Valkenburgh, The Dalles, Or., for defendant Gilliam County High School Dist. Roger L. Dick, of Dick & Dick, The Dalles, Or., for defendant Denise G. Duus.

KILKENNY, District Judge.

Plaintiff seeks a declaration of this court as to whether plaintiff is obligated to appear and defend a certain action now pending in the state court of Oregon under a policy of liability insurance issued by plaintiff to the defendant, Gilliam County High School District, and for a further declaration as to whether plaintiff is liable under said policy for certain alleged acts and omissions of defendant District.

Effective as of October 9, 1958, for a term of three years, plaintiff issued its blanket public liability insurance policy to defendant District, said policy insuring against liability for claims arising out of damage because of bodily injury and destruction of property in the amount set forth in said policy. Thereafter, defendant, Duus, filed an action in the Circuit Court of the State of Oregon for Gilliam County, wherein said defendant alleges that on July 4, 1961, she was attending a baseball game on an athletic field owned by the District in Condon, Oregon, and was injured as a result of the collapse of certain bleachers on which she was seated. She seeks recovery of money damages from the District, as a result of alleged injuries received in said collapse.

The policy in question provided, among other things, as follows:

"6. Notice of Occurrence, Claim or Suit: Upon the occurrence of bodily injury, sickness, disease or death, or injury or destruction of property, written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable. Said notice shall contain certain particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place and circumstances of such occurrence, the name and address of the injured and of any available witnesses * * *".

"III. (a) To defend in his name and behalf any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof * * *."

Plaintiff contends that the District, through its agents and employees, knew or should have known of the alleged occurrence involving Duus and that it had such knowledge on the date of the accident, or shortly thereafter, and that having such knowledge the defendant District failed to give written or any notice to the plaintiff, or to any of plaintiff's authorized agents, of said occurrence in accordance with the terms of the insurance policy and did not give such notice until on or about February 12, 1963, more than seventeen months after the occurrence. Plaintiff claims that the policy is void by reason of defendant District's failure to give proper notice of the occurrence.

On the other hand, defendants contend that the District did not have notice of the alleged occurrence nor should it have known of the injury or the claim of defendant, Duus, until at or about the time of the filing of the action in the state court, at which time the plaintiff was duly notified. Defendants further contend that plaintiff made and filed a general appearance on behalf of the District in defense of the state action and voluntarily entered into and defended the said District thus far in said action and that by reason thereof it has waived its right to claim a defense under the notice clause in said policy.

It is clear that Mr. Brown, the principal of Gilliam County High School, and Mr. Wilson, one of the school board members, were present at the time the bleachers collapsed. The section of bleachers was approximately eight or nine feet in height and twelve or fourteen feet in width. At the time, Mr. Wilson noticed the bleachers going sideways and rather slowly settle to the ground. He then investigated and did not find anyone that was injured. Mr. Brown also investigated to see if anyone was trapped in the bleachers. He heard that a woman had been taken aside, but he felt there was no injury of any consequence. Mr. Chambers, the school property custodian, who was present, said that he observed no one who was injured in the collapse. Mr. Brown reported the collapse of the bleachers at the next school board meeting, which was probably in July or in August and told Mr. Pattee,...