Laster v. U.S. Fidelity & Guaranty Co.

• Decision Date: 16 April 1974
• Docket Number: No. 73-969,73-969
• Citation: 293 So.2d 83
• Parties: Emma LASTER, and Johnie Laster Randerson, Appellants, v. UNITED STATES FIDELITY & GUARANTY COMPANY, a Maryland corporation, Appellee.
• Court: Florida District Court of Appeals

Page 83

293 So.2d 83

Emma LASTER, and Johnie Laster Randerson, Appellants, v. UNITED STATES FIDELITY & GUARANTY COMPANY, a Maryland corporation, Appellee.

No. 73-969.

District Court of Appeal of Florida, Third District.

April 16, 1974.

John W. Fowler, Philip M. Gerson, Miami, for appellants.

Knight, Peters, Hoeveler, Pickle, Niemoeller & Flynn, Jeanne Heyward, Miami, for appellee.

Before PEARSON, CARROLL and HENDRY, JJ.

HENDRY, Judge.

Appellants-defendants seek review of a final judgment finding no coverage under an insurance policy issued by the appellee-plaintiff.

The plaintiff, United States Fidelity & Guaranty Company (U S F & G), filed a complaint for declaratory decree in the trial court. The insurance company alleged that under the terms of its insurance policy, appellant, Mrs. Emma Laster, was not covered for two accidents which occurred on December 23, 1971 and February 18, 1972. Mrs. Laster claimed coverage under the policy issued to appellant Johnie Laster Randerson, and she previously had filed a demand for arbitration to determine liability.

U S F & G alleged in its complaint that Mrs. Laster was not covered under the aforesaid policy by virtue of her failure to comply with two separate policy provisions relating to notice. The first required notice by the insured to U S F & G 'as soon as practicable.' The second, set out in full in the margin, ¹ was a special provision pertaining to accidents involving a hit-and-run automobile. U S F & G contended that Mrs. Laster's failure to comply with these provisions resulted in prejudice to the insurance carrier. The complaint requested the court to enjoin the arbitration proceeding until the court determined the coverage question, and the court by an order dated August 17, 1972 stayed the arbitration.

Subsequent thereto, this cause was heard by the trial judge, at which time testimony was taken from two Florida Highway Patrol troopers, U S F & G's adjustor, a consultant at Jackson Memorial Hospital, and Mrs. Laster. Thereafter, the court entered its findings and final judgment in favor of U S F & G, on the grounds that appellant failed to give timely notice to insurer.

The point on appeal which appellant, Mrs. Laster, raises is whether or not the trial court erred in determining that there was no coverage under the policy because U S F & G was not given timely notice, in view of the fact that no prejudice to the insurer resulted.

It is conceded by the appellant that she did not notify U S F & G, through her attorney, until February 7, 1972 (seventeen days late) of her intention to seek uninsured motorist coverage as a result of the December 23, 1971 accident. No mention of a hit-and-run accident was contained in the attorney's letter of notice. On February 18th or 19th, 1972, ² U S F & G's claims adjustor, Carlton Bronson, received a second communication from Mrs. Laster's attorney, which included a standard accident report prepared by the investigating officer. Nothing in the report gave any indication of a claim that a hit-and-run driver had been involved, either. On February 23, 1972, Bronson by letter to Mrs. Laster's attorney, denied her claim based upon information in the police report.

At the hearing, F.H.P. patrolman Stephen Wilkenson testified that he investigated the December 23 accident on State Road 826, near N.W. 27th Avenue. The officer stated that when he approached the scene, he observed a 1970 Cougar sitting partially through a fence on the north side of the highway. He spotted no other cars, nor did he speak to any witnesses. (Mrs. Laster's counsel also stipulated that no contact with another vehicle occurred in this accident.) Mrs. Laster testified at the hearing that she was forced off the road when a 'phantom' vehicle swerved into her path. Wilkenson, however, was unable to obtain any statement from Mrs. Laster at the scene of the accident because, as he testified, 'She was incoherent. She was injured and there was also an odor of alcohol.'

There was also testimony by Adalberto Delgado, who was a consultant in the emergency room at Jackson Memorial Hospital. He stated that he was on duty when Mrs. Laster was brought to the hospital on December 24, 1971 and that a physical examination revealed she had heavy intoxication. He further testified that Mrs. Laster was conscious for the two days she was hospitalized, and that she was discharged ambulatory.

Mrs. Laster controverted all of this, testifying that she had nothing to drink prior to the accident, that she was unconscious during her stay at the hospital, she was discharged while unconscious, and she remained unconscious thereafter and could not remember returning to the hospital on December 28 for treatment.

Bronson also testified that he did not learn of the second accident of February 18, until May 25, 1972, when he appeared to take a statement from Mrs. Laster at her attorney's office.

The facts of the mishap are remarkably similar to the first accident, except in this instance Mrs. Laster was a passenger in the rear seat. The second accident also occurred on State Road 826 at Miller Road at 3:15 in the morning. F.H.P. trooper D. E. Jones testified that upon his arrival he found a 1964 Chevrolet, driven by one ...