Insurance Co. of North America v. Waldroup

• Citation: 462 F. Supp. 161
• Decision Date: 22 November 1978
• Docket Number: Civ. A. No. 78-4-ATH.
• Parties: INSURANCE COMPANY OF NORTH AMERICA, Plaintiff, v. John C. WALDROUP and Hazel L. Couch Dickerson, Defendants.
• Court: U.S. District Court — Middle District of Georgia

462 F. Supp. 161

INSURANCE COMPANY OF NORTH AMERICA, Plaintiff, v. John C. WALDROUP and Hazel L. Couch Dickerson, Defendants.

Civ. A. No. 78-4-ATH.

United States District Court, M. D. Georgia, Athens Division.

November 22, 1978.

Harvey S. Gray, Smith, Cohen, Ringel, Kohler & Martin, Atlanta, Ga., for plaintiff.

Eugene W. Harper, Harper & Mathews, Hartwell, Ga., Jim Hudson, Hudson & Montgomery, Athens, Ga., for defendants.

OWENS, District Judge:

This declaratory judgment action is brought by the Insurance Company of North America (INA) seeking an adjudication that it is not obligated under a home owner's liability policy to defend further or pay any judgment against John C. Waldroup in a pending wrongful death action in the Superior Court of Madison County, Georgia. INA alleges that Waldroup failed to give notice "as soon as practicable" after the accidental shooting and resulting death of James Richard Couch which is the subject of the state court action. Mrs. Hazel L. Couch Dickerson, the plaintiff in the wrongful death action, has been made a party defendant in this action. INA answered the state court action for Waldroup and entered into a reservation of rights agreement with him. Subject matter jurisdiction is predicated upon diversity of citizenship of the parties, 28 U.S.C.A. § 1332, and the plaintiff has moved for summary judgment.

The facts are undisputed that on August 6, 1975, the plaintiff issued a standard home owner's policy naming Waldroup as the insured. The policy contained a notice requirement:

In the event of accident, occurrence, claim or suit the insured shall: cause written notice containing particulars sufficient to identify the Insured and also reasonably obtainable information with respect to the time, place and circumstances, thereof, and the names and addresses of the injured and of available witnesses, to be given by or for the Insured to this Company or any of its authorized agents as soon as practicable. (emphasis added).

On November 2, 1975, while the policy was in force, Waldroup shot and killed James Couch at a location other than Waldroup's home. Waldroup gave no notice of the incident to INA until two years later on November 1, 1977, after the state court action was commenced on October 28, 1977. INA now argues that the notice was not "as soon as practicable" as a matter of law and that it has no duty to defend or pay since those duties are preconditioned upon timely notice of the occurrence.

The defendants' counter argument is two-fold. First they allege that the plaintiff's agents and employees had actual notice of the occurrence through newspaper and radio accounts of the accident. Secondly, they contend that whether or not notice was given "as soon as practicable" is a question of fact not to be decided on motion for summary judgment. As a justification or excuse for the two year delay, Waldroup argues that a reasonably prudent person could not have known that a home owner's policy would provide coverage for an accidental shooting occurring away from his home.

Even assuming that INA's local agents had actual knowledge of the accident from newspaper and radio sources, this knowledge does not satisfy the notice requirement of the policy. See Buffalo Insurance Co. v. Star Photo Finishing, 120 Ga. App. 697, 172 S.E.2d 159 (1969). The policy requirement that the insured cause written notice of an occurrence containing certain details be given to the insurer cannot be satisfied by a newspaper article from a casual source. Therefore the newspaper and radio accounts, even if read or heard by the plaintiff's agents, do not satisfy the notice requirement.

Timely notice to the insurer of a claim or occurrence is a condition precedent to the insurer's duty to defend or pay. See Richmond v. Georgia Farm Bureau Mut. Ins. Co., 140 Ga.App. 215, 231 S.E.2d 245 (1976). In order to divest itself of the duty to defend or pay, the insurer need not show prejudice from the delay in receiving notice of the occurrence; however, the passage of time alone does not warrant a judgment in the insurer's favor where the insured has a reasonable excuse or justification for the delay. See Richmond, supra; Norfolk & Dedham Mut. Fire Ins. Co. v. Cumbaa, 128 Ga.App. 196, 196 S.E.2d 167 (1973). Georgia courts have, nevertheless, held, on motion for summary judgment, that an insurer...