Weaver v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 21 January 1997
• Docket Number: No. 78853,78853
• Citation: 936 S.W.2d 818
• Parties: James R. WEAVER and Joy F. Weaver, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al., Respondents.
• Court: Missouri Supreme Court

Page 818

936 S.W.2d 818

James R. WEAVER and Joy F. Weaver, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al., Respondents.

No. 78853.

Supreme Court of Missouri En Banc.

Jan. 21, 1997.

Joan M. Tanner, Paul J. Passanante, St. Louis, for appellants.

Cheryl A. Callis, Dan H. Ball, James W. Erwin, T. Evan Schaeffer, St. Louis, for respondents.

PRICE, Judge.

James and Joy Weaver filed suit against State Farm Mutual Automobile Insurance Company to recover under the uninsured motorist coverage of their automobile policy. The policy provides that the insured must notify State Farm as soon as "reasonably possible" after an accident or loss. Because the Weavers did not notify State Farm until one year after Mr. Weaver was injured in an accident, the trial court entered summary judgment in State Farm's favor. We reverse and remand because State Farm did not prove actual prejudice resulting from the untimely notice.

I.

On March 3, 1992, James Weaver was injured when an uninsured motorist struck the truck he was driving. At the time of the accident, Weaver was operating a Consolidated Freightways truck in the course and scope of his employment. After the accident, Mr. Weaver made a workers compensation claim for his injuries. At that time, Mr. Weaver believed that worker's compensation was the only recovery available to him. He was represented by counsel.

It was not until February of 1993 that the Weavers were advised by new counsel that they might be able to recover under the uninsured motorist provisions of their personal State Farm automobile policy. The policy, however, provided, "The insured must give us or one of our agents notice of the accident or loss as soon as reasonably possible." (italics in the policy). The policy further provided, "There is no right of action against us ... until all the terms of this policy have been met."

State Farm was first notified of the Weavers' claims when State Farm received the Weavers' petition and summons on March 2, 1993. On November 14, 1994, State Farm filed a motion for summary judgment alleging that the Weavers did not give State Farm timely notice of the suit. State Farm further alleged that this constituted a material breach of the insurance contract resulting in forfeiture of the coverage provided by the policy. The trial court sustained State Farm's motion. In response to a motion by the Weavers to revise the order, State Farm filed an affidavit by its claim superintendent, Kimball Bell, stating:

Our handling of this matter has been prejudiced in the following manner:

a) Plaintiffs' Petition alleges that demand was duly made and that prior to suit defendant State Farm failed and refused to pay plaintiffs' damages. It is impossible to pay a claim which you do not know exists;

b) Our ability to investigate the physical evidence at the scene was totally waived by the one-year delay in notice;

c) Plaintiff James R. Weaver claims that since shortly after the accident he has not been able to work. The delay in notice resulted in State Farm being unable for one year to collect his medical to confirm this, have him examined as is our right under the policy to confirm this, and possibly to have him followed to see what activities he was, in fact, able to engage in;

d) Plaintiff, in his deposition, eluded [sic] to three witnesses, two males and one female. He was not able by that time to recall their names or the substance of the conversations. State Farm is not, therefore, able to follow up with these witnesses regarding this accident.

The trial court overruled the Weavers' motion to revise the order granting summary judgment and this appeal resulted. ¹

II.

The legal consequence of delay in providing notice to a liability insurer has been extensively litigated. Older cases applied a strict contractual analysis and allowed insurance carriers to forfeit coverage regarding individual claims if the notice provided by the insured did not comply with policy requirements. The modern trend and the majority of cases considering this issue, however, have rejected such an approach. State Auto. Mut. Ins. Co. v. Youler, 183 W.Va. 556, 396 S.E.2d 737, 743 (1990). See, e.g., Yarbrough v. State Farm Ins. Co., 730 F.Supp. 1061, 1065 (D.N.M.1990); State Farm Mut. Auto. Ins. Co. v. Burgess, 474 So.2d 634, 637 (Ala.1985); Ouellette v. Maine Bonding & Casualty Co., 495 A.2d 1232, 1235 (Me.1985); Weaver Bros., Inc. v. Chappel, 684 P.2d 123, 125 (Alaska 1984); A & W Artesian Well Co. v. Aetna Casualty & Sur. Co., 463 A.2d 1381, 1382-83 (R.I.1983); Great American Ins. Co. v. C.G. Tate Constr. Co., 303 N.C. 387, 279 S.E.2d 769, 775 (1981); Finstad v. Steiger Tractor, Inc., 301 N.W.2d 392, 398 (N.D.1981); Johnson Controls, Inc. v. Bowes, 381 Mass. 278, 409 N.E.2d 185, 187-88 (1980); Reliance Ins. Co. v. St. Paul Ins. Cos., 307 Minn. 338, 239 N.W.2d 922, 925 (1976); Lusch v. Aetna Casualty & Sur. Co., 272 Or. 593, 538 P.2d 902, 905 (1975) (en banc).

The leading case regarding this issue is Brakeman v. Potomac Ins. Co., 472 Pa. 66, 371 A.2d 193 (1977). In Brakeman, the Pennsylvania Supreme Court stated:

Where the insurance company's interests have not been harmed by a late notice, even in the absence of extenuating circumstances to excuse the tardiness, the reason behind the notice condition in the policy is lacking, and it follows neither logic nor fairness to relieve the insurance company of its obligations under the policy in such a situation.

Id. 371 A.2d at 197. Perhaps the most piercing analysis of this issue was made in Miller v. Marcantel, 221 So.2d 557 (La.App.1969), where it was pointed out:

The function of the notice requirements is simply to prevent the insurer from being prejudiced, not to provide a technical escape-hatch by which to deny coverage in the absence of prejudice nor to evade the fundamental protective purpose of the insurance contract to assure the insured and the general public that liability claims will be paid up to the policy limits for which premiums were collected. Therefore, unless the insurer is actually prejudiced by the insured's failure to give notice immediately, the insurer cannot defeat its liability under the policy because of the non-prejudicial failure of its insured to give immediate notice of an accident or claim as stipulated by a policy provision.

Id. at 559. In his treatise, Professor Alan Widiss made the following comment:

Courts should exercise restraint in requiring strict compliance with coverage provisions that require notice to an insurer of an accident or proof of claim. When it is not evident that an insurer was prejudiced, an insurer should be required to show why the delay adversely affected its position. In the absence of such proof of prejudice, uninsured motorist coverage should not be forfeited. An allocation of the burden of proof on this issue to the insurer is warranted (a) because the insurer is in the best position to evaluate the consequences of not having received notice and (b) because, in general, it is very difficult to show the negative effects of various events, (in contrast to demonstrating what the actual consequences were). Finally, by requiring the insurer to prove that it was prejudiced, in cases in which there is little evidence about the effect of a late notice, coverage is not lost.

2 A. WIDISS, UNINSURED AND UNDERINSURED MOTORIST INSURANCE § 16.2, at 26 (2d ed. 1985) (footnotes omitted).

Missouri law has followed this trend since Greer v. Zurich Ins. Co., 441 S.W.2d 15 (Mo.1969). In Greer, we noted that such clauses provide "for an avoidance or forfeiture not of the policy but of a claim under the policy because the insurance contract has proscribed recourse to the legal remedy. The condition should be construed most strongly against the insurance carrier." Id. at 31. We then held that "prejudice substantially disabling the insurer in its defense is a circumstance to be considered" in determining if the insurer may avoid coverage on account of a delay in notice. Id. at 32.

We also spoke to this issue recently in Tresner v. State Farm Ins. Co., 913 S.W.2d 7 (Mo. banc 1995). There we discussed the effect of delay in giving notice to the insurer in two contexts, incapacity and substantial compliance. As to incapacity, we stated:

If the insured can establish that he was sufficiently incapacitated, the question then becomes whether he provided notice within a reasonable time after the end of the incapacity. One factor to be considered in making the overall determination of whether notice was provided within a reasonable time after the end of the incapacity is the question of prejudice to the insurer.

Id. at 15. In discussing substantial compliance, we stated:

Substantial compliance with a policy's notice requirement is sufficient, and a failure to comply in some immaterial respect does not justify the avoidance of liability on the part of the insurer. In determining whether or not an insured was in substantial compliance with a policy's notice provision, the trier of fact must consider whether the insurance company was prejudiced by the delay.

Id. (citations omitted).

Under either test, the insurer must establish prejudice to forfeit the coverage to which the insured would otherwise be entitled. Recent decisions of our court of appeals are in accord. Hollis v. Blevins, 927 S.W.2d 558, 568 (Mo.App. S.D.1996); Pikey v. General Acc. Ins. Co., 922 S.W.2d 777, 781 (Mo.App. E.D.1996); Tuterri's, Inc. v. Hartford Steam Boiler Insp. & Ins. Co., 894 S.W.2d 266, 269 (Mo.App. W.D.1995). ² In short, Missouri treats the failure of an insured to provide timely notice to the insurer as an affirmative defense. The nature and elements of this affirmative defense is most clearly set out in Missouri Approved Instruction 32.24, which provides:

32.24 [1978 New] AFFIRMATIVE DEFENSE--INSURANCE POLICY

Your verdict must be for defendant if you believe:

First, plaintiff (describe violated policy condition,...