Helvy v. Inland Mut. Ins. Co.

Decision Date29 October 1963
Docket NumberNo. 12209,12209
Citation132 S.E.2d 912,148 W.Va. 51
CourtWest Virginia Supreme Court
PartiesDolores HELVY v. INLAND MUTUAL INSURANCE COMPANY, a corporation.

Syllabus by the Court

1. Notice of loss given by the named insured to the insurer within one week after the occurrence of an accident in which the plaintiff was injured constituted sufficient compliance with the requirement of a policy of liability insurance that when an accident occurs 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, and it was not necessary for the lessee of the insured automobile involved in the accident, as an additional insured under the omnibus clause of the policy, to give any additional notice to the insurer; and its failure to give an additional notice as soon as practicable after the occurrence of the loss did not relieve the insurer of its liability under the terms of the policy.

2. Under a lease from the owner of an automobile covered by a policy of liability insurance, who was also the named insured in such policy, the lessee of the insured automobile, who by his employee was operating it at the time of an accident, was using the automobile with the consent of the named insured within the meaning of an omnibus clause of an automobile liability insurance policy which defined insured as including any person or organization legally responsible for the use of the automobile if the actual use was with the permission of the named insured; and such lessee is entitled to the coverage provided by the policy as an additional insured under such clause.

Palmer & McCutcheon, J. Campbell Palmer, III, Charleston, for appellant.

Lilly & Lilly, R. G. Lilly, Charleston, for appellee.

HAYMOND, Judge.

In this declaratory judgment proceeding instituted in the Circuit Court of Kanawha County, West Virginia, in 1960, the plaintiff, Dolores Helvy, a judgment creditor of Walker Trucking Company, a corporation, seeks a judgment imposing liability upon the defendant, Inland Mutual Insurance Company, a corporation, under an omnibus clause in a policy of insurance issued by it to Jessie Eldon Walker, the named insured, for payment of the unpaid balance upon her judgment against Walker Trucking Company to the extent of $10,000.00, which amount constitutes the coverage limit provided by the policy for bodily injury for one person. The case was heard by the court in lieu of a jury and by final order entered March 16, 1962, the court imposed liability upon the defendant in the sum of $10,000.00 and entered judgment in favor of the plaintiff and against the defendant for that amount, with interest from February 14, 1958, and costs. From that judgment this Court granted this appeal on December 14, 1962, upon the application of the defendant.

On October 18, 1956, the plaintiff sustained severe personal injuries when the automobile in which she was riding was struck by a Chevrolet dump truck. The truck was owned by Jessie Eldon Walker, who had purchased it on April 23, 1955, had traded it on July 16, 1956 and had repurchased it on October 3, 1956. At the time of the collision the truck was carrying a load of sand and gravel and was being driven by an employee of Walker Trucking Company, to which company it had been leased by Jessie Eldon Walker by a written instrument dated June 29, 1956. During the year 1954 the defendant Inland Mutual Insurance Company had issued a policy of insurance to Walker Trucking Company covering its two-ton Ford dump truck, with limits of liability of $10,000.00 for each person and $20,000.00 for each accident; but due to the number of accidents in which Walker Trucking Company had been involved that policy was cancelled by the defendant on October 10, 1954 and the defendant after such cancellation considered Walker Trucking Company an undesirable insurance risk and decided that it would not in the future accept Walker Trucking Company as an insurance risk or issue to it any policy of insurance coverage.

Jessie Eldon Walker, whose brother Elmer Walker was the President of Walker Trucking Company, obtained a policy of insurance from the defendant Inland Mutual Insurance Company in 1955 upon the Chevrolet truck involved in the collision in which the plaintiff was injured. That policy was renewed on February 8, 1956, for one year from March 8, 1956, and by endorsement countersigned on October 4, 1956, specifically covered the truck and was in effect on October 18, 1956, when the plaintiff was injured. It is the policy upon which this action is based and it contains, among others, these pertinent provisions concerning notice of accident and definition of the insured:

'1. Notice of Accident--Coverages A and B: When an accident occurs 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. Such notice shall contain particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place and circumstances of the accident, the names and addressed of the injured and of available witnesses.'

'10. Named Insured's Duties When Loss Occurs--Coverages D, E, F, G, G1, H and I: When loss occurs, the named insured shall: * * *

'(b) give notice thereof as soon as practicable to the company or any of its authorized agents * * *.'

'III. Definition of Insured: (a) With respect to the insurance for bodily injury liability and for property damage liability the unqualified word 'insured' includes the named insured and, if the named insured is an individual, his spouse if a resident of the same household, and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or such spouse or with the permission of either. * * *.'

The policy, identified as C104656, was issued to Jessie Eldon Walker as the named insured and provided insurance coverage to the extent of $10,000.00 for each person and $20,000.00 for each accident. It also contained the usual provision which required the insured to cooperate with the insurer and upon its request to attend hearings and trials and assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of suits.

According to the testimony of the defendant's agent, who negotiated the insurance, he and its branch manager, who was authorized to accept insurance risks and approve issuance of policies, knew when the policy was issued that the truck covered by the policy was or would be leased by its owner and named insured Jessie Eldon Walker to Walker Trucking Company and though the branch manager of the defendant who testified as a witness in its behalf was questioned on this subject he would neither admit nor deny the testimony of the agent who negotiated the insurance. By entering a judgment in favor of the plaintiff the circuit court necessarily found that the company, through these agents, knew that the truck insured by the policy had been or would be leased to Walker Trucking Company when the policy was approved and issued.

Within a few days after the collision on October 18, 1956, Jessie Eldon Walker, the named insured, notified the defendant of the accident and on October 24, 1956, an adjuster of the defendant obtained from the driver of the truck a statement concerning the accident. That such notice was promptly given is admitted by the evidence of the claims examiner of the defendant who testified in its behalf. It also appears that the defendant was notified of the accident by the claimant Dolores Helvy by letter of her attorney dated November 2, 1956, and the attorney for the defendant in his brief in this Court admits that notice of the accident was given the defendant by the claimant. Statements were later given to the adjuster of the defendant by Jessie Eldon Walker and Elmer Walker, President of Walker Trucking Company.

On July 24, 1957, the plaintiff instituted an action in the Circuit Court of Kanawha County against Walker Trucking Company and on July 26, 1957 instituted another action against Jessie Eldon Walker and Russell Knuckles, the driver of the truck. That action was continued and on October 5, 1957 a third action was instituted by the plaintiff, Dolores Helvy, against Walker Trucking Company, a corporation, Jessie Eldon Walker and Russell Knuckles, the truck driver. The trial of this action upon an amended declaration began on February 11, 1958 and on February 17, 1958 a jury returned a verdict in favor of the plaintiff against Walker Trucking Company for $22,500.00. The motion of Walker Trucking Company for a new trial was overruled; the motion of Jessie Eldon Walker and Russell Knuckles for judgment in their favor was sustained; and, as provided by Rule 57 of the Rules of Civil Procedure, judgment in favor of the plaintiff against Walker Trucking Company was rendered by the circuit court on September 2, 1958. There was no appeal from the judgment against Walker Trucking Company and that judgment remains unpaid and in force and effect though subject to a credit of $5,275.00, the amount paid by Security Insurance Company which had issued a policy of insurance to Walker Trucking Company covering the truck in which the liability was limited to $5,000.00, and a credit of $2,500.00, the amount paid in behalf of Walker Trucking Company to the plaintiff for the release of any part of the judgment in excess of the coverage provided by the policy issued by the defendant to Jessie Eldon Walker. No notice of the accident or of the claim of the plaintiff against Walker Trucking Company was given by it to the defendant company until January 23, 1958, approximately fifteen months after the accident but, according to the testimony of an attorney who was the claims...

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