Resseguie v. American Mut. Liability Ins. Co.

• Decision Date: 04 May 1971
• Docket Number: No. 121,121
• Citation: 51 Wis.2d 92,186 N.W.2d 236
• Parties: April RESSEGUIE, Appellant, v. AMERICAN MUTUAL LIABILITY INS. CO., a foreign corp., Respondent.
• Court: Wisconsin Supreme Court

Page 236

186 N.W.2d 236

51 Wis.2d 92

April RESSEGUIE, Appellant, v. AMERICAN MUTUAL LIABILITY INS. CO., a foreign corp., Respondent.

No. 121.

Supreme Court of Wisconsin.

May 4, 1971.

This action was commenced to recover damages for personal injuries sustained in a motor vehicle-pedestrian accident. The appeal is from a judgment which dismissed the injured pedestrian's complaint against the motor vehicle driver's insurance carrier after a separate trial before the court on a policy coverage issue. The insurance carrier successfully contended that the notice of accident provision of its policy was not complied with.

The plaintiff-appellant, April Resseguie, was injured on October 26, 1965, when struck by an automobile operated by Thomas Dickmann. She was a pedestrian on East Mason street in the city of Milwaukee and was struck by Dickmann's auto as it emerged from an alley. The impact was slight; the plaintiff was not knocked to the ground. They exchanged names and addresses at or near the scene of the accident. There was no apparent injury. That evening plaintiff went to the police department and reported the accident. The police then called Dickmann who went to the police station and completed his portion of the report a day or two later.

The plaintiff testified that after a few days she went back to the police station and obtained from the report the name of Dickmann's insurer, American Mutual Liability Insurance Company, defendant-respondent in this action. She testified that within a few days she telephoned the defendant at its Milwaukee office and reported the accident. She could not recall who she spoke with but stated that whoever it was advised her that she would be contacted later. She further testified that she did not contact defendant again and that she retained an attorney in November of 1965.

There was no further contact with the defendant until January of 1967, when her attorney wrote Dickmann a letter which was forwarded to the defendant and received on January 11, 1967. The claims manager of the defendant's Milwaukee office, Mr. Robert Christensen, testified that a claim file and investigation were not started until this letter was received on January 11, 1967. He stated that the company has a group of employees called 'property loss people' who take accident or claim reports over the telephone. They ascertain the names of the persons involved, as well as a brief description of the accident. When a personal injury is involved, a file and an investigation are begun immediately. The matter is assigned to a claims investigator who is directed to contact the injured party within twelve hours. From the defendant's standpoint this contact is important because it reassures the claimant, keeps the file under control, and makes the claim easier to settle. It is important to them to imvestigate the accident as soon as possible because memories fade and witnesses are hard to locate. He stated that periodic contacts are made with the claimant thereafter. However, because it did not receive Dickmann's letter, and therefore any notice of the accident until approximately fifteen months after it occurred, the defendant did not have the benefit of these procedures in this case.

At the time of the accident the defendant had in full force and effect a policy of automobile insurance issued to Dickmann which contained the following provisions:

'GENERAL CONDITIONS. * * * 4. Notice. In the event of an accident, occurrence or loss, written notice containing particulars sufficient to identify the insured and also reasonably obtainable in formation with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the insured to the company or any of its authorized representatives as soon as practicable. * * *'

'CONDITIONS APPLICABLE TO PART 1. * * * Action Against Company. Under the Liability Coverage, no action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, * * *'

The plaintiff commenced this action against the defendant-insurer in September, 1967, but did not join the insured, Thomas Dickmann. The defendant alleged a lack of notice 'as soon as practicable,' and a trial to the court was held on the separate issue of coverage on November 3, 1969. The trial court found that the defendant-respondent met its burden of proof by establishing that it did not receive notice of the accident, oral or written, before January 11, 1967; that the notice received on that date was not given as soon as practicable; and that the defendant was prejudiced by not receiving any notice before that date. A memorandum decision dated January 30, 1970, was filed, and judgment in favor of the defendant and dismissing the plaintiff's complaint was entered on March 9, 1970. Plaintiff appeals from that judgment.

Schalow, Powers & Dugan, Milwaukee (James C. Shalow and Denis W. Dugan, Milwaukee, of counsel), for appellant.

Wickham, Borgelt, Skogstad & Powell, Milwaukee (Donald R. Peterson and Joseph D. McDevitt, Milwaukee, of counsel), for respondent.

BEILFUSS, Justice.

The plaintiff-appellant has raised five issues on appeal:

(1) Did the insured give notice of the accident to the insurer 'as soon as practicable?'

(2) Is the provision that the insured must give notice of an 'accident, occurrence or loss' as soon as practicable contained in defendant's insurance policy against public policy?

(3) Is sec. 204.34(3), Stats., unconstitutional?

(4) Did the defendant-insurer receive notice of the accident in this case prior to January 11, 1967?

(5) If defendant-insurer did not receive notice until January 11, 1967, did the plaintiff prove that the insured was not prejudiced by the delay of almost fifteen months?

The first issue raised by the plaintiff-appellant is whether the notice given to the respondent-insurer by Dickmann was given as soon as practicable. It is undisputed that Dickmann did not give any notice to his insurer until January 11, 1967, when he forwarded to it the letter which he received from the appellant's attorney. The appellant argues that in Dickmann's own mind he gave notice as soon as was practicable.

While Dickmann might have thought that no claim would be made against him until he received the letter from appellant's attorney, the provisions of his insurance policy required him to give notice in the event of an 'accident, occurrence or loss,' and his obligation was not limited to instances where he knew that there might be an injury and a claim for damages. Therefore the first question is not when did Dickmann know that a claim would be made, but rather when did he have reasonable ground to believe that he was a participant in an accident. Porter v. General Casualty Co. (1969), 42 Wis.2d 740, 168 N.W.2d 101. Without reasonable grounds for such a belief he had no duty to make a report to his insurer. Vande Leest v. Basten (1942), 241 Wis. 509, 6 N.W.2d 667.

It is undisputed that at the time of this incident Dickmann had a conversation with appellant and they exchanged names and addresses. A day or two later Dickmann was contacted by the police and subsequently went to the police station where he completed the accident report and supplied the name of his insurer. From this undisputed evidence the trial court could properly have concluded that Dickmann had reason to believe that he had been in an accident either at the time the incident took place, or within a few days thereafter when he was aware the accident had been reported to the police by the plaintiff.

Normally, a mere lapse of time is not sufficient to constitute a breach of the duty to give notice. What is 'as soon as practicable' is by nature a factual question although, as with all factual questions, the insufficiency of the proof may be a question of law. Allen v. Ross (1968), 38 Wis.2d 209, 156 N.W.2d 434; Porter v. General Casualty Co., supra.

A fact situation similar to the instant case was involved in Sanderfoot v. Sherry Motors, Inc. (1967), 33 Wis.2d 301, 147 N.W.2d 255. In that case an employee of the defendant struck the plaintiff, a pedestrian, while executing a right turn at an intersection in Appleton. The plaintiff was not knocked down and indicated at that time that she was not hurt. The accident was reported by the employee to the office manager of the defendant. The following day the plaintiff called and informed the office manager that she was beginning to get a little stiff ans sore. She was informed to see her doctor and told to forward the bill to the defendant. There was no further communication from the plaintiff until June 10, 1964, in excess of seven months after the accident, when the defendant received a letter from the plaintiff's attorney that she had been injured and was at this time asserting a claim. The defendant then informed its insurer of the claim and the insurer denied coverage because of the unreasonable length of time in reporting the loss. A separate trial was held on the issue of coverage and it was found that the notice of the accident was as soon as practicable, that the defendant's insurer was not prejudiced by the delay of notice and that the insurer in delaying investigation of the accident because of the policy defense had waived the delay and notification and was estopped from asserting it as a defense. In reversing the decision of the trial court, this court stated at pp. 308, 309, 147 N.W.2d at p. 259:

'When Mrs. Sanderfoot called Sherry's office manager the day after the accident and told him that her leg was sore and beginning to get a little stiff, he should have known that there was a possibility of an injury and a claim. The provision of the policy required Sherry to notify Universal of the accident as soon as practicable. By the terms of the policy Universal undertook the obligation of defending the...