Willey v. Travelers Indem. Co.

• Decision Date: 21 December 1972
• Docket Number: No. 13036,13036
• Citation: 193 S.E.2d 555,156 W.Va. 398
• Court: West Virginia Supreme Court
• Parties: Louis J. WILLEY, Individually, et al. v. The TRAVELERS INDEMNITY COMPANY, a corporation.

Page 555

193 S.E.2d 555

156 W.Va. 398

Louis J. WILLEY, Individually, et al. v. The TRAVELERS INDEMNITY COMPANY, a corporation.

No. 13036.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 26, 1972.

Decided Dec. 21, 1972.

Syllabus by the Court

1. A condition in an insurance policy requiring the filing of a written proof of claim is for the benefit of the insurer, its purpose being to furnish notice to the insurer of the occurrence of a loss so that it may be afforded an opportunity to make proper investigation and take such action as it may deem necessary to determine its liability and otherwise protect its interests.

2. Where, under the provisions of an insurance policy, the insurer becomes liable for the death of the insured, if such death shall result directly and independently of all other causes from bodily injury caused by accident, and where the facts reveal unequivocally that the insurer is aware of the death, as evidenced by its participation in an autopsy performed to determine the cause of death, the need for a written proof of claim is obviated and the insurer is estopped from asserting as a defense against the claim the failure of the insured's beneficiary to furnish such written proof of claim.

3. 'It is the peculiar and exclusive province of the jury to weigh the evidence and to resolve questions of fact when the testimony of witnesses regarding them is conflicting and the finding of the jury upon such facts will not ordinarily be disturbed by this Court.' Point 3, Syllabus, Western Auto Supply Company v. Dillard, 153 W.Va. 678. (172 S.E.2d 388)

4. In actions founded on contract the jury may allow interest on the principal amount from the time the debt becomes due until the time of the trial and may render as its verdict the aggregate of such principal sum and interest.

Donell, Tarr, DeLaMater & Hagg, W. Dean DeLaMater, Floyd R. Tarr, Thomas D. Hagg, Weirton, for appellant.

Martin S. Bogarad, Leonard Z. Alpert, Weirton, for appellees.

CAPLAN, Judge:

Louis J. Willey, individually and as Administrator of the Estate of Helen L. Willey, deceased, instituted an action in the Circuit Court of Hancock County against the defendant, The Travelers Indemnity Company, a corporation, seeking recovery of a certain sum of money which he alleged was due and owing under the terms of a personal automobile insurance policy purchased by him from the defendant. Upon trial of this matter before a jury a verdict was returned in favor of the plaintiff and damages were assessed in the sum of $10,000.00, plus 6% Interest. Thereafter judgment was entered on the verdict in the amount of $11,250.00, said sum being the $10,000.00 face amount of the policy, plus 6% Interest from August 15, 1967, or an additional $1,250.00. A motion for a new trial having been overruled, the defendant prosecutes this appeal.

On June 9, 1967, while the aforesaid policy was in full force and effect, Helen L. Willey was severely injured in an automobile accident in Washington County, Pennsylvania. She suffered extensive fractures of her hand, leg, hip and jaw and was admitted as a patient to the Washington Hospital where she remained for a period covering the next nine weeks. She seemed to have made satisfactory progress in the treatment of her fractures and appeared to be getting along fairly well until the latter part of July when her general health began to deteriorate. While the record does not readily reveal Mrs. Willey's age, she was referred to as an elderly woman.

At approximately 8:40 A.M. on August 15, 1967, Dr. John H. Hall, Jr., her treating physician, visited her and observed, according to the hospital records: 'Condition most critical: unconscious-cyanotic . . . tube feeding not too successful. Can't last much longer. Will not carry out any 'heroic' measures.' About ten hours later on the same day Mrs. Willey passed away. The Certificate of Death, signed by Dr. Hall, showed the cause of death as 'cerebrovascular thrombosis due to arteriosclerosis'. Mrs. Willey was buried on August 19, 1967 but on September 20, 1967 her body was exhumed for the purpose of an autopsy which was performed by Dr. Dyril H. Wecht with Dr. Robert C. Lyons. Dr. Lyons was directed by Travelers to observe and take part in the autopsy.

In his amended complaint the plaintiff alleged that by virtue of the subject insurance policy Travelers Indemnity Company owed him in his individual capacity the sum of $10,000.00 because of the death of his wife, Helen L. Willey, whose life was insured by said policy and who died on August 15, 1967 as the proximate result of an automobile accident which occurred on June 9, 1967.

The defendant moved to dismiss the amended complaint, the principal ground being that the plaintiff failed to allege sufficient facts to show compliance with the terms and conditions precedent of the insurance policy. In its answer to the amended complaint the defendant further demonstrated the basis for its motion to dismiss. Therein it denied liability for the reason that the plaintiff failed to file with defendant a written proof of claim as provided in Condition 6 of the policy. The issue was joined when, in said answer, the defendant 'specifically denied that the automobile accident on June 9, 1967, in Washington County, Pennsylvania, or any injuries which might have resulted therefrom to the deceased, Helen L. Willey, proximately caused her death on August 15, 1967.'

The motion to dismiss was overruled and, after pre-trial conference and the order pursuant thereto were held and entered, the case proceeded to trial. During the trial the defendant moved for a directed verdict at the conclusion of the plaintiff's evidence and upon the presentation of all the evidence, both of which motions were overruled. A charge was given to the jury by the court, portions of which were objected to by the defendant; also, certain instructions offered by the defendant were refused. In this posture the case went to the jury, which, as aforesaid, returned a verdict in the sum of $10,000.00, plus 6% Interest.

Although numerous errors are assigned by the defendant two principal issues evolve on this appeal, which, when resolved, are dispositive of this case. These issues are: (1) Does the failure of the plaintiff to file a proof of claim, in the circumstances of this case, preclude recovery under the insurance policy? (2) Did the plaintiff carry the burden of proof sufficiently to show that the death of the insured resulted directly and independently of all other causes from bodily injury caused by the accident as required by Coverage F of the subject insurance policy?

It is undisputed that under Condition 6 of the insurance policy a written proof of claim of the injury or death shall be submitted to the company as soon as practicable; nor is it disputed that the plaintiff failed to submit such written proof of claim. Thus, directly presented is the issue as to whether such failure on the part of the plaintiff precludes recovery in this case.

This Court, in many decisions, has acknowledged that furnishing a proof of claim required as a condition in an insurance policy, is a condition precedent to recovery under the policy. Maynard v. National Fire Insurance Company of Hartford, 147 W.Va. 539, 129 S.E.2d 443; Adkins v. Globe Fire Insurance Co., 45 W.Va. 384, 32 S.E. 194; Peninsular Land Transportation & Manufacturing Co. v. Franklin Insurance Co., 35 W.Va. 666, 14 S.E. 237; 44 Am.Jur.2d, Insurance, Section 1455. The above cited cases, however, readily reveal that the requirement of a proof of claim may be waived by the insurer and that such waiver need not be expressed but may be implied from the conduct of the insurer. 45 C.J.S. Insurance § 672; 44 Am.Jur.2d, Insurance, Section 1509.

The proof of claim requirement is included as a condition of a policy for the benefit of the insurer. Its purpose is to allow such insurer to acquire information upon which it can form an intelligent estimate of its liabilities and to afford it an adequate opportunity for investigation of the claim. 44 Am.Jur.2d, Insurance, Section 1455. While the following quote is under a section relating to fire insurance, it nonetheless demonstrates the general objective of a proof of claim. It is succinctly stated in 45 C.J.S. Insurance § 1006: 'The object of notice is to acquaint insurer of the occurrence of the loss, so that it may make proper investigation and take such action as may be necessary to protect its interests. The object of the proofs is to furnish insurer with the particulars of the loss and all data necessary to determine its liability and the amount thereof.'

There is no sanctity to the proof of claim itself and, as aforesaid, it may be waived or the insurer by its conduct may be estopped from asserting the failure to supply it to effect a forfeiture. If the need for the proof of claim is obviated by the action of the insurer, the failure to furnish it by the insured may be excused. 'The courts being loath to enforce a forfeiture, * * * are prompt to seize on any circumstances which indicate a waiver on the part of the company, or which will raise an estoppel against it.' 45 C.J.S. Insurance § 672. See General Fidelity Life Insurance Company v. Bank of Callao, 206 Va. 582, 145 S.E.2d 212.

The instant case involves the death of the insured. The allegation is that the death was caused by injuries received in an automobile accident for which the insurer is liable under the policy. It cannot be successfully disputed that the insurer had full knowledge of the death. This is readily reflected by the testimony of Dr. Robert C. Lyons, a witness for the defendant, who testified that he was 'contacted by Travelers Indemnity Company to observe and take part in an autopsy on one, Helen Willey'. By having full knowledge of the death and taking part in the autopsy, it certainly was reasonable for the plaintiff to believe that the insurer was, at most,...