Jorgensen v. St. Paul Fire & Marine Ins. Co.

• Decision Date: 22 November 1965
• Docket Number: No. 20745,20745
• Parties: Margaret W. JORGENSEN and Gilbert A. Jorgensen, Plaintiffs in Error, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Defendant in Error.
• Court: Colorado Supreme Court

Page 66

408 P.2d 66

158 Colo. 466

Margaret W. JORGENSEN and Gilbert A. Jorgensen, Plaintiffs in Error, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Defendant in Error.

No. 20745.

Supreme Court of Colorado, En Banc.

Nov. 22, 1965.

Benjamin R. Loye, Denver, for plaintiffs in error.

Wormwood, O'Dell & Wolvington, Denver, for defendant in error.

PRINGLE, Chief Justice.

The plaintiffs in error, Margaret W. and Gilbert A. Jorgensen, were the plaintiffs in the trial court and will be referred to as such. Defendant in error, St. Paul Fire and Marine Insurance Company, was the garnishee below, and will be referred to as St. Paul.

Originally, plaintiffs had brought suit against John Albert Bonkowske for the wrongful death of L. G. Jorgensen. Bonkowske notified St. Paul, his purported insurance carrier, of the accident in which deceased was killed. St. Paul denied any coverage of Bonkowske, although it offered to defend Bonkowske with a reservation of rights. Bonkowske refused this offer. Thereafter, default was entered against Bonkowske and judgment upon the default in the amount of $25,000 and costs was awarded the plaintiffs.

Thereafter, the plaintiffs obtained a writ of garnishment against St. Paul. The garnishment was answered by St. Paul wherein it denied any coverage under the insurance policy. This answer was traversed by the plaintiffs. The matter was heard by the court which entered findings of fact, conclusions of law and judgment in favor of the garnishee, St. Paul. From that judgment, the plaintiffs bring this writ of error.

The garnishment proceedings established the following crucial facts: On May 6, 1960, Bonkowske obtained an insurance policy from St. Paul to be inforce for one year from that date. The policy protected the insured against all sums which he might become legally obligated to pay as damages for personal injury and property damage sustained by any person and arising out of his operation of the insured automobile. On May 27, 1960, Bonkowske issued his check in the amount of $47.40 for the annual premium. On June 68 1960, St. Paul sent a notice of cancellation to Bonkowske at his address listed on the policy, effective June 17, 1960, and obtained a receipt from the United States Post Office dated June 6, 1960. On August 1, 1960, a notice of earned premium in the amount of $5.45 was sent to Bonkowske. This represented the premium which St. Paul earned for the forty-two days during which the policy was in force. No refund of unearned premium was sent with this notice.

On September 4, 1960, the accident occurred wherein Bonkowske's vehicle struck and killed the decedent. On September 22, 1960, St. Paul's agent returned Bonkowske's original uncancelled check with a letter stating that the insurance policy had been cancelled and that the check had been found while cleaning out their files.

The sole question to be determined here is whether St. Paul's insurance policy covered the Bonkowske vehicle on the date of his accident. We hold that it did not.

The gist of the plaintiffs' argument is that St. Paul is estopped to deny its coverage of the Bonkowske accident, and therefore, is liable to the plaintiffs under their writ of garnishment.

The cancellation provisions of the policy appear as follows:

'This policy may be canceled by the company by mailing to the insured * * * written notice stating when not less than ten days thereafter such cancelation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice.' (Emphasis supplied.)

The policy goes on to state that,

'If the company cancels, earned premium shall be computed pro rata. Premium adjustment may be made either at the time cancelation becomes effective, or as soon as practicable after cancellation becomes effective, but payment or tender of unearned premium is not a condition of cancellation.' (Emphasis supplied.)

The facts set out above establish that St. Paul complied explicitly with the cancellation provisions of its contract as stated in the policy. It therefore effectively cancelled the policy as of June 17, 1960.

The plaintiffs assert that Bonkowske did not receive the notice of cancellation which was mailed to him on June 6, 1960. Actual receipt of the cancellation ...