Hague v. Liberty Mut. Ins. Co., 76-2182
| Decision Date | 13 April 1978 |
| Docket Number | No. 76-2182,76-2182 |
| Parties | Fred A. HAGUE, Plaintiff-Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Charles T. Sykes, Jr., Gulfport, Miss., for plaintiff-appellant.
Ben H. Stone, Robert C. Galloway, Gulfport, Miss., for defendant-appellee.
Eldon L. Bolton, Jr., Gulfport, Miss., for other interested parties.
Bobby G. O'Barr, Biloxi, Miss., for Nat'l Fire & Marine Ins. Co., et al.
Appeal from the United States District Court for the Southern District of Mississippi.
Before CLARK and GEE, Circuit Judges, and LYNNE *, District Judge.
Fred Hague obtained a default judgment against James Watkins in 1973 for injuries that Hague had suffered in 1970 when a taxi driven by Watkins collided with Hague's automobile. In an attempt to realize on the judgment, Hague initiated this action to garnish an insurance policy issued to Watkins' employer, Yellow Cab and Car Rental of Gulfport, Inc. The parties waived a trial and agreed that the trial court should consider the case on the record and depositions alone. The district court ruled that Liberty Mutual was not indebted to Watkins because the conditions precedent to liability under the policy had not been met. Hague has appealed from that ruling. We affirm.
The district court's opinion mentioned two conditions precedent without indicating whether its decision was based upon only one or both of the requirements. As to one condition that the taxi must have been insured under a policy issued by Liberty Mutual the district court concluded that the "identity of the particular cab involved in this accident was never revealed." The difficulty in identifying the particular cab resulted from the two-year delay in notifying the insurance company of the accident. That delay relates to the second condition precedent the requirement in the insurance contract that the company be notified "as soon as practicable" of any accident involving a vehicle covered by the policy.
Hague contends that the district court erred in its consideration of both conditions. Regarding the first, the identity of the taxi, Hague argues that the deposition testimony shows that from the day of the accident the taxi was identified as one that was insured by Liberty Mutual. Because the case was submitted to the district court in the form of documents and transcripts, Hague's burden of showing that the district court's findings of fact were "clearly erroneous" is somewhat lessened. See, e. g., McKensie v. Sea Land Service, Inc., 551 F.2d 91, 92 (5th Cir. 1977); Burston v. Caldwell, 506 F.2d 24, 26-7 (5th Cir. 1975); Volkswagen of America, Inc. v. Jahre, 472 F.2d 557, 558-59 (5th Cir. 1973). Nevertheless, the clearly erroneous standard still applies and it is our duty "to study the entire record thoroughly and to determine whether we are 'left with the definite and firm conviction that a mistake has been committed.' " Volkswagen of America, Inc. v. Jahre, 472 F.2d at 559. See also Fed.R.Civ.P. 52(a).
After reviewing the entire record we do not have a definite and firm conviction that the district court committed a mistake. Several people testified that upon receiving notification of the suit in 1972 they were able to identify the taxi and to discover that it was insured by Liberty. The same witnesses, and others, testified that they had been unable to find any record in the files that would indicate the identity of the taxi involved. The police report of the accident did not identify the taxi by vehicle identification number; it only listed the license plate number. Watkins, the driver, recalled that the taxi had a number different from that listed on the police report. With such a conflict between testimonial and documentary evidence, we cannot say that the district court clearly erred when it concluded that the identity of the taxi had not been proved. As we said in Skidmore v. Grueninger, 506 F.2d 716, 724 (5th Cir. 1975),
Even were we to agree with Hague and conclude that the district court had erred with respect to the first condition precedent, we would still affirm the lower court on the basis of the second condition precedent, the requirement that the company be notified of the accident as soon as practicable. Hague contends that Yellow Cab notified its insurance agent of the accident on the day it occurred. There was testimony to support that contention. But, as with the question of the identity of the taxi, the absence of corroborating documentary evidence weakens the credibility of the testimony. The office manager for Yellow Cab's insurance agent testified that as soon as notice of an accident was received she always made a record of the notification and immediately reported it to the insurance company. Yet, she could find neither a record of this accident nor a record of a report to an insurance company. In addition, Liberty Mutual's regional claims manager was unable to find any report of the accident prior to February 1972, when he was notified of the suit. With such a conflict in proof, we cannot say that the district court erred when it concluded that neither Yellow Cab nor Watkins made an "effort to report (the accident) to the insurance company for two years."
Although Hague challenges the district court's factual finding, he also raises a more fundamental objection. He contends that Mississippi law prevents the insurance company from asserting inadequate notice as a defense. Hague bases his argument upon the Mississippi Motor Vehicle Safety-Responsibility Law. Miss.Code Ann. §§ 63-15-1 et seq. (1972). Section 63-15-43 of that law provides:
(6) Every motor vehicle liability policy shall be subject to the following provisions which need not be contained therein:
(a) the liability of the insurance company with respect to the insurance required by this chapter shall become absolute whenever injury or damage covered by said motor vehicle liability policy occurs; . . . no violation of said policy shall defeat or void said policy;
Hague contends that because the policy was issued under the assigned risk plan required by section 63-15-65 of that law, the policy was subject to the provisions of section 63-15-43(6)(a). Thus, Hague argues, the failure to comply with the notice requirement could not impair liability under the policy. Counsel for Liberty Mutual conceded at oral argument that if the policy was subject to the provisions of subsection (6)(a) the company could not plead a lack of notice. The depositions and the wording of the statute, however, reveal that this policy was not subject to the provisions of that section.
The provisions of subsection (6)(a) are applicable "to the insurance required by this chapter (chapter 15)." That chapter requires insurance only after an owner or operator has had an accident which causes property damage in excess of a certain amount or personal injury. Until an accident occurs, the general rule is that Mississippi does not require liability insurance to operate a motor vehicle. Once an accident occurs, however, the parties must report it to the Department of Public Safety. The Department is required to suspend the license of anyone involved in the accident, unless the owner or operator furnished security to satisfy any judgment that may arise from the accident and "proof of financial responsibility." Proof of financial responsibility may be provided in several ways, only one of which, a certificate of insurance, is applicable in this case. Section 63-15-39 provides that "(p)roof of financial responsibility may be furnished by filing with the department (of public safety) the written certificate of any insurance company authorized to write motor vehicle liability insurance in this state certifying that there is in effect a motor vehicle liability policy for the benefit of the person required to furnish proof of financial responsibility." Thus, the "insurance required by this chapter," to which subsection (6)(a) is applicable, is the insurance used to provide proof of financial responsibility.
Hague advances a two-pronged argument to support his contention that the policy issued by Liberty Mutual was a policy required by...
To continue reading
Request your trial
-
Lawler v. Government Employees Ins. Co.
...to perform the terms and conditions invoked upon him by the policy Rampy, 278 So.2d at 434; see also, Hague v. Liberty Mutual Insurance Company, 571 F.2d 262, 267 (5th Cir.1978) (interpreting Mississippi law); and Brakeman v. Potomac Ins. Co., 472 Pa. 66, 371 A.2d 193, 197 contract but in a......
-
State v. Brar
...1321, 16 L.Ed.2d 415 (1966) and citing Jennings v. Gen. Med. Corp. , 604 F.2d 1300, 1305 (10th Cir. 1979) ); Hague v. Liberty Mut. Ins. Co. , 571 F.2d 262, 264 (5th Cir. 1978) ("Because the case was submitted to the district court in the form of documents and transcripts, [the] burden of sh......
-
OFFSHORE LOGISTICS, ETC. v. ARKWRIGHT-BOSTON MFR'S
...to it under the policy." Greyhound Corp. v. Excess Ins. Co. of America, 233 F.2d 630, 636 (5th Cir. 1956). See Hague v. Liberty Mutual Ins. Co., 571 F.2d 262, 267 (5th Cir. 1978); Offshore Logistics Services v. Mutual Marine Offices, Inc., 462 F.Supp. 485, 495 (E.D.La. 1978), modified in pa......
-
Employers Reinsurance Corp. v. Landmark
...However, a duty to defend arises only if the conditions precedent to the policy, such as proper notice, are met. Hague v. Liberty Mut. Ins. Co., 571 F.2d 262, 267 (5th Cir.1978). Lack of notice is an affirmative defense of the insurer to both the duty to defend and the duty to indemnify. Jo......