Sanderfoot v. Sherry Motors, Inc.

• Decision Date: 03 January 1967
• Citation: 147 N.W.2d 255,33 Wis.2d 301
• Parties: Naomi SANDERFOOT, Plaintiff, v. SHERRY MOTORS, INC. et al., Respondents, Universal Underwriters Ins. Co., a foreign insurance corporation, Appellant.
• Court: Wisconsin Supreme Court

Page 255

147 N.W.2d 255

33 Wis.2d 301

Naomi SANDERFOOT, Plaintiff, v. SHERRY MOTORS, INC. et al., Respondents Universal Underwriters Ins. Co., a foreign insurance corporation, Appellant.

Supreme Court of Wisconsin.

Jan. 3, 1967.

Schlotthauer, Jenswold & Studt, Robert R. Studt, Madison, for appellant.

Bradford & Gabert, Appleton, for respondents.

BEILFUSS, Justice.

The issues are as follows:

(1) Was notice of the accident given 'as soon as practicable' as required by the policy?

(2) If notice was not given 'as soon as practicable,' was Universal prejudiced by the fact that notice was given seven months after the accident?

(3) If Universal was prejudiced, has Universal waived or is it estopped from asserting its policy defense of lack of timely notice?

Universal relies upon the conditions in the policy and upon sec. 204.34(3), Stats., in this appeal. In the condition section of the insurance policy the following provisions are found:

'10. 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.

'* * *

'13. Action Against Company. 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, nor until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company. * * *'

Sec. 204.34(3), Stats., provides:

'No policy of insurance, agreement of indemnity or bond as provided in subsection (1) shall limit the time for the giving of notice of any accident or casualty covered thereby to a period less than that provided in subsection (1) of section 204.29. Failure to give such notice shall not bar liability under such policy of insurance, agreement of indemnity or bond as provided in subsection (1) if the insurer was not prejudiced or damaged by such failure, but the burden of proof to so show shall be upon the person claiming such liability.'

See. 204.29(1), Stats., provides:

'No licensed accident or casualty insurance company in Wisconsin shall limit the time for the service of any notice of injury to less than twenty days, except as provided in section 204.31.'

Universal concedes that if notice was given 'as soon as practicable,' then sec. 204.34(3), Stats., has no application to this case. Universal contends, however, that in view of the fact that it did not receive notice until seven months after the accident, as a matter of law, notice was not given as soon as practicable.

In support of its position Universal cites Parrish v. Phillips (1938), 229 Wis. 439, 282 N.W. 551, in which the court held that a thirty-three day delay in giving notice was not 'as soon as practicable' as a matter of law. In further support of its position Universal cites Calhoun v. Western Casualty & Surety Co. (1951), 260 Wis. 34, 49 N.W.2d 911, in which the court held that a delay of almost one year in giving notice of an accident was not distinguishable from the Parrish Case and that notice was not given 'as soon as practicable' as a matter of law. Both Parish and Calhoun involved notice provisions similar to that in the insurance policy in the instant case and both involved questions of the applicability of sec. 204.34(3), Stats. In both Parrish and Calhoun the plaintiff was obviously seriously injured at the time of the accident.

In the car at bar the trial court found that notice was given 'as soon as practicable' after the accident 'because Sherry Motors did notify the Company as soon as it found out that a claim was being made against it for what had been considered by then to be no accident at all.' Sherry maintains that the determination of the trial court was correct, and that Parrish and Calhoun are distinguishable from the instant case.

In short, Universal contends that the passage of a certain length of time between accident and notice absolves the insurer of liability under the policy and the statutes as a matter of law; Sherry contends that whether notice is 'as soon as practicable' depends upon the particular circumstances of the accident and that an insured need not report every trivial occurrence that would not lead a reasonable person to suspect that a claim will probably be made against it.

In the case at bar the plaintiff was not visibly injured at the time of the accident. She was not knocked down, walked to the sidewalk, and told Bartman, 'I don't think I am hurt.' Mrs. Sanderfoot did call Sherry the next day stating that her knee was stiff and sore and that she would see a doctor the next Monday if the condition did not improve, but she made no additional contact with Sherry for over seven months. She did not comply with Sherry's specific request that she report the name of her doctor to Sherry.

In support of its position, Sherry offers the case of Sheafor v. Standard Accident Ins. Co. (1918), 166 Wis. 498, 166 N.W. 4, in which the court held that where a blow to the insured's head did not result in indicia of serious injury, the insured was excused from giving notice of injury within twenty days of the accident as required by the policy, even though the insured eventually lost an eye as a result of the accident. The condition had gradually worsened until the eye had to be removed. The Sheafor Case must be distinguished from this case in two respects: (1) the policy there required 'notice of injury' within twenty days (this policy requires 'notice of accident'), and the court found that there was no 'injury' until the insured's eye required treatment; and (2) the policy provided that timely notice would not invalidate a claim if the insured showed that it was not "reasonably possible to give the notice, and that notice was given as soon as was reasonably possible." Sheafor, supra, at pp. 498, 499, 166 N.W. at...