Standifer v. Aetna Casualty and Surety Company

• Decision Date: 20 November 1970
• Docket Number: 69-290 and 69-456.,Civ. A. No. 69-289
• Citation: 319 F. Supp. 1385
• Parties: Michael David STANDIFER, Plaintiff, v. AETNA CASUALTY AND SURETY COMPANY, a corporation, Defendant. Eloise (Standifer) VIVIAN, Plaintiff, v. AETNA CASUALTY AND SURETY COMPANY, a corporation, Defendant. AETNA CASUALTY AND SURETY COMPANY, a corporation, Plaintiff, v. Frank VIVIAN et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

319 F. Supp. 1385

Michael David STANDIFER, Plaintiff, v. AETNA CASUALTY AND SURETY COMPANY, a corporation, Defendant.

Eloise (Standifer) VIVIAN, Plaintiff, v. AETNA CASUALTY AND SURETY COMPANY, a corporation, Defendant.

AETNA CASUALTY AND SURETY COMPANY, a corporation, Plaintiff, v. Frank VIVIAN et al., Defendants.

Civ. A. Nos. 69-289, 69-290 and 69-456.

United States District Court, N. D. Alabama, E. D.

November 20, 1970.

Betty C. Love, Love & Love, Talladega, Ala., for Michael David Standifer and Eloise (Standifer) Vivian.

William G. Somerville, Jr., Lange, Simpson, Robinson & Somerville, Birmingham, Ala., for Aetna Casualty and Surety Co.

Huel M. Love and Betty C. Love, Love & Love, Talladega, Ala., for Frank Vivian and others.

OPINION ON MOTION FOR SUMMARY JUDGMENT

LYNNE, Chief Judge.

These causes, coming on to be heard, were submitted on the motion in Civil Action 69-456 of Aetna Casualty & Surety Company for summary judgment, the three causes having been consolidated for submission on said motion. In their suits (Civil Actions 69-289 and 69-290) Michael David Standifer and Eloise Standifer Vivian claim, under the uninsured motorist coverage of an insurance policy issued by Aetna, damages for injuries received by Michael David Standifer, and in its suit (Civil Action 69-456) Aetna seeks on several grounds to be relieved of liability under the uninsured motorist provisions of the policy. The single question raised by the motion for summary judgment is whether the insurer's obligations are avoided by failure of the insureds to comply with policy conditions requiring that the insureds forward to Aetna copies of the suit papers in their actions against an uninsured motorist.

The pleadings and affidavits establish the following uncontroverted facts: The injuries for which damages are sought from Aetna were sustained by Michael David Standifer in an automobile accident with an uninsured motorist on October 25, 1966. Actions by Michael Standifer and Mrs. Vivian against the uninsured motorist (Howard Garrett) were commenced on November 30, 1966, in a state court. Upon service of Garrett appearances for him were entered on January 5, 1967, but withdrawn on December 6, 1967, default judgments nil dicet were taken against him on January 29, 1968, and the amounts of damages were proven and judgments therefor entered on May 6, 1969. Copies of the suit papers in the actions against Garrett were never forwarded by the insureds to Aetna and notice of the pendency of the actions was first received by Aetna on March 26, 1969, although Mrs. Vivian states that the insurance agency in Sylacauga, Alabama, knew that the suits were being filed. The policy (Policy No. 76 FA 047808 PC, issued to Frank Vivian) sued on in the present actions brought against Aetna provides for uninsured motorist coverage in its Part IV, and applicable to that coverage are certain standard provisions requiring as a condition precedent to any action on the policy that the suit papers in any action against an uninsured motorist be forwarded immediately to the company. These provisions are contained in paragraphs 3 and 6 of its "Conditions" and are set out below.¹ At the pretrial conference it was stated for the insureds, and conceded by Aetna for the purpose of its motion for summary judgment, that neither insured had received the policy, which was retained in the office of the insurance agency in Sylacauga. Neither of the insureds asked the agency for a copy of the policy until January 1969, at which time Mrs. Vivian asked for and was given a copy of the agency's "daily".

It is the rule in Alabama, as in the majority of jurisdictions, that failure of an insured to comply within a reasonable time with such conditions precedent in an automobile liability policy requiring the forwarding of suit papers or the giving of notice of an accident "will release the insurer from the obligations imposed by the contract, although no prejudice may have resulted." American Fire & Casualty Co. v. Tankersley, 270 Ala. 126, 130, 116 So.2d 579, 582 (1959).² Knowledge by the local agency in Sylacauga that suits were being filed is no substitute for compliance with the requirement that the suit papers be forwarded to the Company. See, e. g., 7 Am.Jur.2d, Automobile Insurance § 186, at 525; National Surety Corp. v. Dotson, 270 F.2d 460 (6th Cir. 1959); Royal Indem. Co. v. Watson, 61 F.2d 614 (5th Cir. 1932); DeVigil v. General Accident Fire & Life Assur. Corp., 146 F. Supp. 729 (D.Haw.1956); Prassel Enterprises, Inc. v. Allstate Ins. Co., 405 F.2d 616 (5th Cir. 1968). Cf. Alabama Farm Bureau Mut. Cas. Ins. Co. v. Teague, 269 Ala. 53, 55, 110 So.2d 290 (1959); Continental Ins. Co. v. Parkes, 142 Ala. 650, 657, 39 So. 204 (1905). And the failure of the insureds to ever forward the suit papers to Aetna—or even to give written notice to it of the pendency of the actions against the uninsured motorist until some 28 months after they were commenced and 16 months after entry of the judgments nil dicet—requires the conclusion that, as a matter of law, they breached the condition of the policy unless their failure may be excused by the fact that the policy was retained by the agent and not delivered to them. Delays of much shorter periods in complying with similar policy conditions are unreasonable as a matter of law. E. g., Paris v. State Farm Mut. Auto. Ins. Co., 391 F.2d 595 (5th Cir. 1968); McPherson v. St. Paul Fire & Marine Ins. Co., 350 F.2d 563 (5th Cir. 1965); Greyhound Corp. v. Excess Ins. Co., 233 F.2d 630 (5th Cir. 1956); Phoenix Assur. Co. v. Harry Harless Co., supra; Lee v. Bituminous Cas. Corp., 330 F.2d 514 (5th Cir. 1964). Cf. Provident Life & Acc. Ins. Co. v. Heidelberg, 228 Ala. 682, 154 So. 809, 811 (1934) (Delay of 8½ months in filing proof of death held unreasonable as matter of law.)

The insureds contend that they are not bound by and should be excused from compliance with this condition because the policy was retained in the office of the agent in Sylacauga. An insured, however, must follow a course of reasonable diligence to obtain such information as will enable him to comply with the policy provisions. Greyhound Corp. v. Excess Ins. Co., supra, 233 F.2d at 636; 14 Couch, Insurance 2d, § 49:425. Accordingly, an omnibus insured without knowledge of the policy's existence or the insurer's identity is bound by policy conditions governing notice and forwarding of suit papers, and his failure to use due diligence in pursuing available means of ascertaining the existence and terms of the policy resulting in unreasonable delay in complying with its conditions will relieve the insurer of liablity. See, e. g., Navigazione Alta Italia v. Columbia Cas. Co., 256 F.2d 26 (5th Cir. 1958); International Harvester Co. v. Continental Cas. Co., 33 Ill. App.2d 467, 179 N.E.2d 833 (1962); Transport Ins. Co. v. Fireman's Fund American Ins. Co., 424 F.2d 210 (10th Cir. 1970); Nelli v. National Surety Corp., 34 Misc.2d 976, 229 N.Y.S.2d 174 (1962); Allstate Ins. Co. v. Manger, 30 Misc.2d 326, 213 N.Y.S.2d 901 (1961); Capital Rental Equip. Co. v. Pacific Indem. Co., 193 F.Supp. 897 (W. D.Tex.1961); Velkers v. Glens Falls Ins. Co., 93 N.J.Super. 501, 226 A.2d 448 (1967). Cf. Kimsey v. Jefferson Standard Life Ins. Co., 230 Ala. 550, 161 So. 796 (1935). The affidavits in the present case disclose without dispute that not until January 1969 did Mrs. Vivian or Mr. Standifer make any effort to obtain a copy of the policy from the Sylacauga agency and a copy was furnished to them when they asked for it; no excuse is given for their failure to inquire earlier. In these circumstances, as in the analogous circumstances of the above cases, it must be concluded as a matter of law that the insureds did not exercise the diligence necessary to excuse their failure to comply with the policy conditions. Moreover, the pertinent conditions precedent in the policy presently sued on are standard provisions, and there is authority that they...