Wright v. Columbia Casualty Company

• Decision Date: 04 February 1956
• Docket Number: 1717.,Civ. A. No. 1716
• Citation: Wright v. Columbia Casualty Company, 137 F.Supp. 775 (S.D. W.Va. 1956)
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Bobby R. WRIGHT v. COLUMBIA CASUALTY COMPANY, a corporation. Deloris Anna YOUNG, an infant who sues by Ida Young, her mother and next friend v. COLUMBIA CASUALTY COMPANY, a corporation.

137 F. Supp. 775

Bobby R. WRIGHT v. COLUMBIA CASUALTY COMPANY, a corporation.

Deloris Anna YOUNG, an infant who sues by Ida Young, her mother and next friend v. COLUMBIA CASUALTY COMPANY, a corporation.

Civ. A. Nos. 1716, 1717.

United States District Court S. D. West Virginia.

February 4, 1956.

John H. McCutcheon, Summersville, W. Va. (R. J. Thrift, Jr., Fayetteville, W. Va., on the brief), for plaintiffs.

Mahan, White & Higgins, Fayetteville, W. Va. (S.C. Higgins, Jr., Fayetteville, W. Va., on the brief), for defendant.

MOORE, Chief Judge.

These cases involve an attempted cancellation of an automobile liability insurance policy issued to Charles S. Willis, Jr., by the Columbia Casualty Company. The issue to be decided is whether the defendant effectively cancelled the policy before the accident occurred which forms the basis of these suits. The cases were submitted on an agreed statement of facts the pertinent parts of which are as follows.

The policy was issued for a stated period commencing at 12:01 A.M. on December 28, 1954, and ending at 12:01 A.M. on December 28, 1955. At the date the policy was issued and until his death, Willis was a member of the United States Air Force. His address on the date of issuance, which is the address shown in the policy and was never changed on the face of the policy, was 764th Bomber Squadron, Hill Air Force Base, Utah.

By the terms of the policy defendant agreed to pay on behalf of Willis all sums which he became legally obligated to pay as damages because of bodily injury, etc., sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile described therein. Liability to each person so injured was limited to the sum of $5,000.

The policy contained the following provision with respect to cancellation:

"This policy may be cancelled by the named insured by mailing to the company written notice stating when thereafter such cancellation shall be effective. This policy may be cancelled by the company by mailing to the named insured at the address shown in this policy, written notice stating when, not less than five days thereafter such cancellation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice and the effective date and hour of cancellation stated in the notice shall become the end of the policy period. Delivery of such written notice, either by the named insured or by the company, shall be equivalent to mailing."

On January 11, 1955, pursuant to his request to be transferred to a base near his home, Willis received official orders releasing him as of that date from assignment with the 764th Bomber Squadron at Hill Air Force Base, and assigning him to the 405th Fighter Bomber Wing, TAC, Langley Air Force Base, Virginia. He was ordered to report for duty at Langley Air Force Base on February 18, 1955. The orders further provided that as of January 21, 1955, Willis was to be dropped from the rolls of Hill Air Force Base and placed upon the rolls of Langley Air Force Base.

On or about January 11, 1955, Willis departed from Hill Air Force Base. The record is silent as to his intended movements between that time and the date on which he was ordered to report at Langley Air Force Base.

On January 21, 1955, defendant's agent in Utah was advised by personnel at Hill Air Force Base that Willis had been transferred to 405th Fighter Bomber Wing, TAC, Langley Air Force Base, effective as of that date. However, the agent was not advised of the date upon which Willis was required to report to his new duty assignment.

On January 25, 1955, defendant deposited in the United States mail in Salt Lake City, Utah, a registered letter, return receipt requested, addressed to Willis at 405th Fighter Bomber Wing, TAC, Langley Air Force Base, Virginia. This letter contained a notice that the insurance policy was cancelled as of February 3, 1955, at 12:01 A.M. standard time in the State of Utah. It was received at Langley Air Force Base Station, Hampton, Virginia, on January 28, 1955, but was returned undelivered to the Post Office at Salt Lake City, Utah, on February 11, 1955.

On February 4, 1955, in the State of West Virginia, Willis, while driving the automobile covered by the insurance policy in question, was involved in an automobile accident, as a result of which he was killed and Deloris Anna Young and Bobby R. Wright were injured. Thereafter Bobby R. Wright and Deloris Anna Young, who sues by Ida Young, her mother and next friend, instituted actions in the Circuit Court of Fayette County, West Virginia, against Charles S. Willis, Sr., administrator of the estate of Charles S. Willis, Jr. Young obtained judgment in the amount of $3,500 and Wright in the amount of $6,500. Counsel for plaintiffs concede that Wright cannot recover in the present action more than $5,000. No part of these judgments has been paid.

By reason of his untimely death, Charles Willis, Jr., never received the notice of cancellation.

It is fundamental that, in the absence of a stipulation to the contrary, the act of cancelling a contract which provides for cancellation on notice necessarily includes the element of delivery of the notice. Although the parties to an insurance policy can contract away the element of delivery, or at least provide that mailing shall be sufficient proof of delivery, the party seeking to take advantage of such a provision must show a strict compliance with the terms of the contract, or display some valid reason for non-compliance.

Defendant has attempted to excuse its non-compliance with the...