Mancillas v. Campbell, 78-950

• Decision Date: 25 January 1979
• Docket Number: No. 78-950,78-950
• Citation: 42 Colo.App. 145,595 P.2d 267
• Parties: Diana MANCILLAS, as surviving widow of Guadalupe S. Mancillas, Deceased, and Diana Mancillas on behalf of Tanya Mancillas, minor child of Guadalupe S. Mancillas, Deceased, and Diana Mancillas as Personal Representative of the Estate of Guadalupe S. Mancillas, Deceased, and Alta M. Crawford, as Surviving Parent of Plaintiff Marie E. Weekes, Deceased and unmarried, and Alta M. Crawford, as Personal Representative of the Estate of Marie E. Weekes, Deceased, Plaintiffs v. John D. CAMPBELL and Ken Campbell, Defendants and Third-Party Plaintiffs-Appellants, v. The HOME INSURANCE COMPANY, Third-Party Defendant-Appellee. . II
• Court: Colorado Court of Appeals

Page 267

595 P.2d 267

42 Colo.App. 145

Diana MANCILLAS, as surviving widow of Guadalupe S.

Mancillas, Deceased, and Diana Mancillas on behalf of Tanya

Mancillas, minor child of Guadalupe S. Mancillas, Deceased,

and Diana Mancillas as Personal Representative of the Estate

of Guadalupe S. Mancillas, Deceased, and Alta M. Crawford, as Surviving Parent of Plaintiff Marie E. Weekes, Deceased and unmarried, and Alta M. Crawford, as Personal Representative of the Estate of Marie E. Weekes, Deceased, Plaintiffs v. John D. CAMPBELL and Ken Campbell, Defendants and Third-Party Plaintiffs-Appellants, v. The HOME INSURANCE COMPANY, Third-Party Defendant-Appellee.

No. 78-950.

Colorado Court of Appeals, Div. II.

Jan. 25, 1979.

Rehearing Denied Feb. 8, 1979.

Certiorari Granted May 14, 1979.

Sandra I. Rothenberg, Denver, for defendants-appellants.

Long & Jaudon, P. C., David B. Higgins, Denver, for third-party defendant-appellee.

VanCISE, Judge.

On January 11, 1976, Guadalupe Mancillas and Marie Weekes died in the Hi-U Motel in Commerce City, apparently as a result of asphyxiation. Mr. Mancillas' widow and children and Miss Weekes' parents brought an action against John D. and Ken Campbell, the motel owners, claiming that they were responsible for the deaths. Contending that a liability insurance policy was in effect on January 11, the Campbells filed a third-party complaint against The Home Insurance Company claiming that it wrongfully refused to provide coverage and a defense to them pursuant to that policy.

The insurance company moved for summary judgment on the ground that the policy was cancelled prior to the January 11 asphyxiations. The motion was granted, and a C.R.C.P. 54(b) judgment order was entered. The Campbells appeal, and we affirm.

The policy contained the following clause:

"This policy may be cancelled by the company by mailing to the named insured at the address shown in this policy, written notice stating when not less than 10 days thereafter such cancellation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice."

On November 21, 1975, because of non-payment of premium, the insurance company mailed a notice of policy cancellation to the last known address of the Campbells. The notice stated that the cancellation would become effective at 12:01 a. m., on December 1, 1975. The Campbells claim that they did not receive this notice.

The Campbells contend that the notice of cancellation was wholly ineffective because it failed to give the required 10 day notice and because it was not actually received by the insured. We disagree.

Where the insurance contract provides that Mailing of the notice of cancellation is sufficient, then actual receipt of the notice by the insured is not a condition precedent to cancellation. Jorgensen v. St. Paul Fire & Marine Insurance Co., 158 Colo. 466, 408 P.2d 66 (1965). In the present case, the insurance company complied with its contract by mailing the notice.

As to the effect of a notice which purports to cancel an insurance policy at a time earlier than that fixed by the policy:

"While a contrary view obtains in some jurisdictions, most courts are agreed that a notice, otherwise sufficient in form and content, which purports to cancel an insurance or fidelity contract at a time earlier than that permitted under the pertinent cancellation provisions of the contract is not wholly ineffective but serves to cancel the contract and the coverage afforded by it at the expiration of the permitted time." Annot., 96 A.L.R.2d 286.

The majority rule is the better reasoned, and we choose to follow it. The only purpose of the provision for notice of cancellation...