Ripepi v. American Insurance Companies

• Decision Date: 20 July 1965
• Docket Number: No. 15158.,15158.
• Citation: 349 F.2d 300
• Parties: Tony RIPEPI, Individually and Tony Ripepi, Trading and Doing Business as Keystone Music Company, v. The AMERICAN INSURANCE COMPANIES, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

349 F.2d 300 (1965)

Tony RIPEPI, Individually and Tony Ripepi, Trading and Doing Business as Keystone Music Company, v. The AMERICAN INSURANCE COMPANIES, Appellant.

No. 15158.

United States Court of Appeals Third Circuit.

Argued May 18, 1965.

Decided July 20, 1965.

Harold Gondelman, Jacobson & Gondelman, Pittsburgh, Pa., for appellant.

Samuel J. Margiotti, Margiotti & Casey, Pittsburgh, Pa., for appellee.

Before STALEY, HASTIE and GANEY, Circuit Judges.

STALEY, Circuit Judge.

Tony Ripepi has brought this suit against his liability insurer to recover the damages allegedly caused by its failure to defend a suit brought against him by John Smiechowski. Smiechowski claimed that he had been injured by a fall caused by a deleterious substance which Ripepi had negligently permitted to remain on his property. The district court granted Ripepi full relief, consisting of the amount of the judgment against him in the former suit and counsel fees and expenses in that suit. We affirm.

The relevant facts of the situation here before us are these. On March 3, 1958, John Smiechowski, a truck driver, was engaged in delivering cigarettes to Ripepi's establishment. He had backed his truck up to the loading entrance and was standing on its back ledge and handing the packages of cigarettes to an employee of Ripepi who was placing them on a small two-wheeled truck. When the employee turned away, Smiechowski slipped and fell off the truck onto Ripepi's property, injuring his elbow. Ripepi, who came out of his office immediately after the fall, and one of his employees helped the injured man to a chair, and Ripepi later took him to a hospital. Ripepi did not inquire about the cause of the accident nor did he see anything that would indicate it was causally connected with his property. He, therefore, gave no notice to his liability insurer until seventeen months later when the papers in the action brought by Smiechowski against him were served.

The complaint furnished to Ripepi and forwarded by him to his insurance company alleged that Smiechowski had been "caused to fall on the rear ledge of his truck, because of a deleterious substance which accumulated on his shoe when he was in the warehouse of the defendant * * *." It was, of course, further alleged that Ripepi had negligently failed to maintain his warehouse in a reasonably safe condition and that he permitted dog matter to lie around on the floor of the warehouse and failed to remove it.

The insurance company refused to defend the claim on the ground that Ripepi had failed to comply with a provision of the policy which required that notice of an accident be given promptly. Ripepi then hired Vincent M. Casey, Esquire, of the Allegheny County bar. The case went through all pretrial procedures; the pretrial judge indicated that the case presented a question for the jury. After a jury had been selected, counsel conferred with Judge Smith in the Court of Common Pleas of Allegheny County, Pennsylvania, on the trial date. It was again indicated that the case was a proper one for submission to the jury. After some negotiation between the respective trial counsel and parties, the case was settled for $4,850. A consent verdict in that amount was brought in by the jury against Ripepi. Casey set $5,500 for his fee; costs and other expenses amounted to $110.50. This suit was then brought, and the district court granted all the relief sought.

We are first asked to consider whether the notice given by Ripepi to his insurance company after he had received the suit papers conformed to the following applicable provisions of the insurance policy:

"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."

The record clearly indicates that notice was given to the insurance company as soon as Ripepi acquired information indicating that the accident was caused by something on his premises and not on the truck. Thus, it was given "as soon as practicable." It would be an unusual man who would regard himself as bound to report an accident he had observed or heard about unless there was about it something which might render him liable. Thus the cases which have been cited to us as holding that the notice provision of an insurance contract was not complied with in a particular fact situation uniformly involve situations where, in the face of facts which might indicate that he was liable, the insured made a judgment, factual or legal, that he was not. Jeannette Glass Co. v. Indemnity Ins. Co., 370 Pa. 409, 88 A.2d 407 (1952); The Housing Authority of the City of Allentown v. The Employers' Liability Assur. Corp., 232 F.2d 932 (C.A.3, 1956); Farmers National Bank of Ephrata v. Employers Liability Assur. Corp., 414 Pa. 91, 199 A.2d 272 (1964); Hackmeister, Inc. v. Employers Mutual Liability Ins. Co., 403 Pa. 430, 169 A.2d 769 (1961). The situation here is quite unlike that in those cases. The only thing Ripepi knew at the time of the accident in this case is that a man had fallen off a truck outside his premises and had landed on the floor inside. He had no indication that the accident was caused by the presence of a deleterious substance; neither did he know that Smiechowski had been in the plant prior to the accident. Ripepi obviously made no judgment relating to his liability because there were no facts known to him which would...