Hawkeye-Security Ins. Co. v. Myers
| Decision Date | 23 February 1954 |
| Docket Number | No. 10887.,10887. |
| Citation | 210 F.2d 890 |
| Parties | HAWKEYE-SECURITY INS. CO. v. MYERS et al. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Arthur S. Gomberg, Samuel Nineberg and Plack & Wrobel, all of Chicago, Ill., for appellants.
Paul A. La Rocque, Chicago, Ill., for appellee.
Before DUFFY, FINNEGAN and SWAIM, Circuit Judges.
The plaintiff, Hawkeye-Security Insurance Co., brought this action against the defendants, Hollis Myers and Rose Willis, seeking a declaratory judgment adjudicating that it was not liable, under its automobile liability insurance policy issued to Hollis Myers, for damages for injuries suffered by Rose Willis in an accident which occurred on March 31, 1951, when she was struck by a Hudson automobile which was being driven by Myers. The insurance policy as issued gave Myers coverage from August 23, 1950, to August 23, 1951.
The complaint alleged that Hollis Myers, while driving and operating said Hudson automobile, was involved in an accident in which the defendant, Rose Willis, allegedly suffered bodily injury; that Myers thereupon took Rose Willis from the scene of the accident to a hospital in the City of Chicago for the purpose of obtaining treatment for the injuries, and that Myers knew on that date that Rose Willis had not only received treatment for bodily injuries, but that she was also hospitalized therefor and remained confined in the hospital. The plaintiff attached a copy of the insurance policy to, and made it a part of, the complaint. The automobile described in the policy issued to Myers was a 1949 Pontiac two-door sedan.
The complaint alleged that the Pontiac sedan described in the insurance policy had been traded in by Myers on a new Hudson automobile, which was delivered to Myers on March 14, 1951; that the first knowledge the plaintiff had of Myers' acquisition of the new Hudson automobile was received by the plaintiff on the 3rd day of May, 1951, in a letter written by Myers' attorney requesting an endorsement on the policy to cover the newly acquired automobile; that plaintiff's first knowledge of the occurrence of the accident was received by it on the 5th day of May, 1951, and was acquired from a report of the accident, dated April 28, 1951, which was signed by Myers and gave the name of the person injured as Rose Williams; that the defendant Hollis Myers never gave the correct name of the injured party to the plaintiff or to any of its authorized agents; and that in its investigation of the reported accident the plaintiff learned that the car which Myers was operating at the time of the accident was not the 1949 Pontiac described in the policy but was the 1951 Hudson which had been delivered to Myers on March 14, 1951, by Fohrman Motors, Inc.
The complaint stated that the investigation of the accident was made by plaintiff pursuant to a full reservation of its rights, notice of which was given to Myers on May 22, 1951; that thereafter the plaintiff notified Myers of its denial of coverage of the accident and gave notice to Myers of the cancellation of the policy and, in connection with the cancellation, authorized and caused a pro rata refund to Myers of the premium on the policy, prorated as of March 14, 1951.
In the complaint the plaintiff recited that the defendant Rose Willis had filed an action against the defendant Hollis Myers seeking to recover damages because of her alleged bodily injuries sustained in the accident and that "if plaintiff defends said state court action it is estopped from raising any question as to coverage and if it does not defend said state court action it takes the risk of said suit being inadequately defended with excessive damages to pay in case it is subsequently found liable"; and that the foregoing facts constitute an actual controversy between the parties.
The plaintiff prayed for judgment against the defendants, adjudging and determining that the plaintiff was not obligated under said policy of insurance in connection with said Hudson automobile or in connection with the accident in which it was involved; and that the plaintiff was not obliged to defend the action brought by Rose Willis against Myers nor to pay any judgment or costs which might be assessed against Myers in said action.
In his answer to the complaint the defendant Hollis Myers admitted the occurrence of the accident and that he took Rose Willis from the scene of the accident to the hospital, but he denied the allegations of the complaint that the plaintiff was not given notice of his acquisition of the Hudson automobile until May 3, 1951, and that plaintiff was not given notice of the occurrence of the accident until May 5, 1951.
During the trial Myers testified that on the evening he received delivery of the Hudson automobile, the salesman who sold it to him said that he, the salesman, would take care of the transfer of the insurance policy to cover the newly acquired Hudson. Myers also said that on Monday morning following the accident, April 2, 1951, he called the insurance company by telephone and reported the occurrence of the accident and the car he was then driving. But a written statement, dated May 21, 1951, written out by an adjuster for the plaintiff insurance company and signed by Myers, stated: "The police told me that they would report the accident to my insurance company whose name I supplied them with and this is why I didn't report the accident myself to the insurance company covering my car."
We think that the evidence in this case fully supported the District Court findings that Myers accepted delivery of the new Hudson automobile on March 14, 1951; that the insurance company was not notified of this until May 3, 1951; that there was no request for a transfer of the coverage from the Pontiac to the Hudson for more than thirty days after the delivery of the Hudson to Myers; that the plaintiff first learned of Myers' acquisition of the Hudson when it received the request, dated May 3, 1951, to transfer the coverage from the Pontiac to the Hudson; that the plaintiff first learned of the accident, which occurred on March 31, 1951, on May 5, 1951, when the written report thereof was received; that no notice of the accident was given to the plaintiff by or on behalf of Myers prior to the notice received on May 5, 1951; that such notice was, therefore, not given as soon as practicable under the circumstances; and that said notice did not comply with the policy provision which required that the notice of the accident should contain reasonably obtainable information respecting the circumstances of such accident, the name and address of...
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