Ohio Cas. Ins. Co. v. Lamy Columbus Club

Citation1969 NMSC 153,80 N.M. 740,461 P.2d 155
Decision Date10 November 1969
Docket NumberNo. 8828,8828
PartiesOHIO CASUALTY INSURANCE COMPANY, a corporation, Plaintiff-Appellee, v. LAMY COLUMBUS CLUB, a corporation, and Patricia Mengrone, Defendants-Appellants.
CourtSupreme Court of New Mexico
OPINION

COMPTON, Justice.

The appellant, Patricia Mengrone, brought an action against the appellant, Lamy Columbus Club, for damages for injuries sustained by her when a chair furnished her by the Club for the playing of bingo collapsed. The accident occurred in February, 1966, and the Club, disclaiming any knowledge of the accident and injury, did not give written notice to appellee of the accident and injury until some time in November, 1967, after it had been sued by Patricia Mengrone. Thereupon, appellee instituted this action for a declaratory judgment under the terms of a liability insurance policy therefore issued by it to the Club. Issue was joined; the Club sought additional relief by counterclaim and cross-claim against appellee.

Upon consideration of the pleadings, affidavits and various depositions, the trial court sustained the appellee's motion for summary judgment, and this appeal followed. The court did not state specifically the basis of its judgment but we think it is clear that summary judgment was based on the failure of Lamy Columbus Club to give timely written notice of the accident and injury sustained by the appellant Mengrone. The policy requires that:

'9. Notice of Accident: When an accident occurs written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable. Such notice shall contain particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place and circumstances of the accident, the names and addresses of the injured and of available witnesses.'

Viewing the same record as did the trial court, we conclude that there still exist material issues of fact whether the Club had knowledge of the accident, and, if so, whether the injury sustained by the appellant Mengrone was of such a nature that delay by the Club in giving written notice of the accident to the insurer was excused. These issues cannot be determined as a matter of law. Compare Simon v. Wilson, 78 N.M. 491, 432 P.2d 847; Watson v. Western...

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1 cases
  • Las Cruces Country Club, Inc. v. City of Las Cruces
    • United States
    • New Mexico Supreme Court
    • 2 Febrero 1970
    ...is the slightest doubt as to the existence of material factual issues, summary judgment should be denied. Ohio Casualty Insurance Co. v. Lamy Columbus Club, 80 N.M. 740, 461 P.2d 155; Institute For Essential Housing, Inc. v. Keith, 76 N.M. 492, 416 P.2d 157; Sooner Pipe & Supply Corp. v. Do......

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