Hargrove v. CNA Ins. Group

Citation323 A.2d 785,228 Pa.Super. 336
PartiesScherwin Diane HARGROVE v. CNA INSURANCE GROUP, Appellant.
Decision Date21 June 1974
CourtPennsylvania Superior Court

Page 785

323 A.2d 785
228 Pa.Super. 336
Scherwin Diane HARGROVE
v.
CNA INSURANCE GROUP, Appellant.
Superior Court of Pennsylvania.
June 21, 1974.

[228 Pa.Super. 337] CERCONE, Judge:

This is an appeal of CNA Insurance Group (CNA) from the lower court's judgment in favor of plaintiff, [228 Pa.Super. 338] Scherwin Diane Hargrove, as a third party beneficiary, under a CNA automobile liability policy.

CNA issued a policy to Aero Trucking Company covering the owner and driver of a truck which Aero leased (from the owner).

Page 786

Plaintiff was injured in an accident involving the truck while it was being driven by the insured driver. CNA knew of the accident the day it happened, made investigations and paid, on behalf of its insureds, claims made by other persons involved in the accident. CNA also interviewed plaintiff and negotiated with her on her claim for injuries. At no time, however, did CNA know of plaintiff's lawsuit in trespass against its insureds, the owner and driver of the truck, until it was notified by plaintiff's attorney that a default judgment had been taken against these insureds. Plaintiff sought recovery of its judgment against CNA in an assumpsit action as a third party beneficiary under the policy. CNA denied liability on the grounds that the insureds breached the condition upon which CNA's liability rested: a requirement that the insureds immediately forward suit papers in the event of a lawsuit. The only witness at the trial of the assumpsit action was a CNA supervisor who stated that CNA did not receive the suit papers, and did not have notice of the lawsuit until after the default judgment was obtained against CNA's insureds.

In Flagg v. Puleio, 189 Pa.Super. 329, 150 A.2d 400 (1959), the insurance company knew of the accident the day after it happened, investigated it and attempted settlement with plaintiff; it did not receive information of the lawsuit until a default judgment had been taken against its insured; no suit papers were forwarded to the insurer by its insured. In holding that the insurer was not liable therein we said: 'In the present case the insurer did not have an opportunity to appear and defend the action on liability, was not given an opportunity [228 Pa.Super. 339] to cross-examine plaintiff's witnesses on damages and was not given an opportunity to present its own evidence relating to liability and damages.' In Flagg, it was clearly established that no suit papers were forwarded. In the instant appeal...

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11 cases
  • Brakeman v. Potomac Ins. Co.
    • United States
    • Pennsylvania Supreme Court
    • March 16, 1977
    ...Co., 292 Pa. 219, 140 A. 905 (1928); Young v. American Bonding Co., 228 Pa. 373, 77 A. 623 (1910); Hargrove v. CNA Insurance Group, 228 Pa.Super. 336, 323 A.2d 785 (1974); Flagg v. Puleio, 189 Pa.Super. 329, 150 A.2d 400 (1959); Frank v. Nash, 166 Pa.Super. 476, 71 A.2d 835 11 We need not a......
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  • Brakeman v. Potomac Ins. Co.
    • United States
    • Pennsylvania Superior Court
    • September 22, 1975
    ...was actually breached, and that the breach resulted in substantial prejudice to its position. Hargrove v. CNA Insurance Group, 228 Pa.Super. 336, 323 A.2d 785 (1974). While the differences in treatment of late receipt of notice, improper receipt of notice and late receipt of suit papers can......
  • Brakeman v. Potomac Ins. Co.
    • United States
    • Pennsylvania Superior Court
    • September 22, 1975
    ... ... breached, and that the breach resulted in substantial ... prejudice to its position. Hargrove v. CNA Insurance ... Group, 228 Pa.Super. 336, 323 A.2d 785 (1974). While the ... differences in treatment of late receipt of notice, improper ... ...
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