Lee v. Cas. Co. of Am.

• Citation: 96 A. 952,90 Conn. 202
• Parties: LEE v. CASUALTY CO. OF AMERICA.
• Decision Date: 15 March 1916
• Court: Supreme Court of Connecticut

96 A. 952

90 Conn. 202

LEE

v. CASUALTY CO. OF AMERICA.

Supreme Court of Errors of Connecticut.

March 15, 1916.

Appeal from Superior Court, Hartford County; Lucien F. Burpee, Judge.

Action by Thomas J. Lee against the Casualty Company of America. Judgment for defendant sutaining a demurrer, and plaintiff appeals. Error and judgment set aside and case remanded.

Action upon a policy of casualty insurance to recover the amount paid in settlement of a claim for injury caused by a casualty covered by the policy, brought to the superior court in Hartford county when a demurrer to the reply to one of the paragraphs of the defendant's answer was sustained by the court, and judgment rendered for the defendant. The plaintiff appealed, alleging error in sustaining the demurrer. Error and cause remanded.

Theodore G. Case, of Hartford, for appellant. John T. Robinson, of Hartford, for appellee.

THAYER, J. This is an action upon a policy of casualty insurance. Paragraph 9 of the complaint alleges that the plaintiff had complied with all the terms of the policy. This paragraph is denied in paragraph 9 of the answer, in this, that the policy contained a provision that upon the occurrence of a casualty covered by the policy, the plaintiff should give immediate notice of the casualty, and also of any and all claims which should be made on account of such casualty, and if afterwards any suit should be brought against him to enforce such claims, he should cause the summons, process, and other papers relating to such suit to be delivered to the company as soon as served upon him, and that he had not complied with these provisons, in that he failed to give the immediate notice required by them, and failed to turn over the summons, process, and other papers as required. The reply denies this paragraph of the answer except as admitted, and proceeds to allege that on November 3, 1913, the plaintiff gave written notice of the accident to a duly authorized agent of the defendant, who received and accepted it; that between that date and December 29, 1913, the defendant attempted to make a settlement of the claim, and did other acts by which the plaintiff was led to believe that the defendant assumed liability for the loss and damage which the plaintiff suffered by reason of the casualty; that on the last-named date the defendant requested the plaintiff to furnish further information as to the accident, including signed statements of the plaintiff and all eyewitnesses of the casualty and copies of all pleadings in the action then pending between him and the person injured in the casualty and a written report of the physical condition of the injured person; that on the same day the defendant notified the plaintiff in writing that, by reason of his failure to give immediate written notice of the casualty, the defendant "would handle the case on his behalf under reservation of rights under the policy"; that on January 19, 1914, the plaintiff forwarded to the defendant the information and papers requested; that on February 16, 1914, the defendant requested the plaintiff to deliver all papers in the action pending against him to its local attorney, which was done, and that on the 19th of March, 1914, the defendant notified the plaintiff that it had canceled the policy as of the date of issue, for failure of the plaintiff to pay the premium; and that the defendant had no further interest in the matter. The reply was demurred to upon the ground that it appears therefrom that the plaintiff did not comply with the conditions of the policy referred to in paragraph 9 of the answer, and because it does not appear that the defendant waived its right to rely upon the breach of those conditions, and does not appear that it is estopped from relying upon and pleading the same.

The reply, while stating that the plaintiff gave the notices and performed the acts required by the paragraphs of the policy quoted in the answer, does not allege that these were given and performed within the time required and does not deny the defendant's allegation that they were not given and performed at the time required. A failure to perform within the time required would be a breach of the condition, and prevent a recovery upon the policy, unless the defendant waived the breach or estopped itself from denying the performance of the condition.

There is nothing in the reply which shows that the plaintiff was misled to his injury by the acts and conduct set forth in the reply; and therefore, as one element of an estoppel is lacking, there is no sufficient allegation of an estoppel. The plaintiff claims...