Republic Mut. Ins. Co. v. State Farm Mut. Auto. Ins. Co., 72--2383
| Decision Date | 06 November 1975 |
| Docket Number | No. 72--2383,72--2383 |
| Citation | 527 F.2d 1002 |
| Parties | REPUBLIC MUTUAL INSURANCE COMPANY, a corporation, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation, et al., Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Charles E. Hurt, Charleston, W.Va., for appellant.
Robert J. Louderback, Charleston, W.Va., for appellees.
Before BOREMAN, Senior Circuit Judge, and RUSSELL and FIELD, Circuit Judges.
Republic Mutual Insurance Company instituted this action seeking a declaratory judgment that State Farm Mutual Automobile Insurance Company is primarily liable for the amount of money paid in settlement of the wrongful death claim of the estate of Verna Lilly against Mona E. Fleshman. The liability, if any, of State Farm arises under an automobile liability policy issued to Fleshman. The policy which was issued in January of 1971 covered a 1971 Ford Maverick automobile, the only motor vehicle then owned by Fleshman. On June 22, 1971, Fleshman purchased a 1962 Plymouth, but State Farm was not notified of the purchase and did not learn of it until October 18, 1971. On July 9, 1971, the 1962 Plymouth was involved in an accident in which Verna Lilly was killed.
The sole question presented on this appeal is whether the 1962 Plymouth qualified for coverage under the State Farm policy by virtue of the 'Newly Acquired Automobile' clause. The policy extended coverage to a newly acquired automobile under the following provision:
'Newly Acquired Automobile--means an automobile, ownership of which is acquired by the named insured or his spouse, * * *, if
(1) it replaces an automobile owned by either and covered by this policy, or the company insures all automobiles owned by the named insured and such spouse on the date of its delivery, and
(2) provided that no insurance shall be applicable to such newly acquired automobile unless as a condition precedent the named insured within 30 days following such delivery date applies to the company for insurance on such newly acquired automobile but such application is not necessary if the newly acquired automobile replaces an automobile owned by the named insured or such spouse and covered by this policy.'
It is conceded that the Plymouth was not a replacement vehicle and State Farm contends that the failure of the insured to apply for insurance on the Plymouth within the thirty day period excluded the vehicle from coverage. Were it not for the language that such an application was a condition precedent to coverage, this case would present little difficulty since it has been held almost without exception that coverage under such provisions is automatically effected for the stated period irrespective of notice to the insurer. Inland Mutual Insurance Company v. Stallings, 263 F.2d 852 (4 Cir. 1959); Hoffman v. Illinois Nat. Casualty Co., 159 F.2d 564 (7 Cir. 1947); Hall v. State Farm Mutual Automobile Ins. Co., 268 F.Supp. 995 (D.C.S.C.1966), aff'd per curiam 378 F.2d 371 (4 Cir. 1967). See Annot., 34 A.L.R.2d 936. State Farm argues, however, that this relatively new policy language requiring an application for insurance rather than mere notice and designating it as a condition precedent is sufficient to place this case outside the ambit of the above cited authorities.
With no specific guidance in decisions of the highest court of West Virginia, the district judge concluded that an application for insurance was a condition precedent to coverage during the thirty day period and held that the failure of Fleshman to so apply precluded coverage for the 1962 Plymouth. Judgment was entered in favor of State Farm and Republic has appealed.
We find ourselves unable to agree with this conclusion...
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