which the courts declare, usually with little explanation, that when a carrier denies coverage it waives rights it otherwise might have had to contend that the insured failed to comply with notice or proof of loss requirements (or with any other provision included in the policy for the benefit of the carrier). See, e.g.,Wasson v. Atlantic National Ins. Co., 207 Cal.App.2d 464, 24 Cal.Rptr. 665 (Third Dist.1962); Lagomarsino, supra;Comunale v. Traders & General Ins. Co., 116 Cal.App.2d 198, 253 P.2d 495 (Second Dist.1953); Kennedy v. American Fidelity & Casualty Co., 97 Cal.App.2d 315, 217 P.2d 457 (Fourth Dist.1950); Lincke v. Mutual Benefit Health & Accident Ass'n, 76 Cal.App.2d 222, 172 P.2d 912 (Fourth Dist.1946); Mercer, supra;Grant v. Sun Indemnity Co. of New York, 11 Cal.2d 438, 80 P.2d 996 (1938); Dietlin v. General American Life Ins. Co., 4 Cal.2d 336, 49 P.2d 590 (1935); Hill v. Mutual Benefit Health & Accident Ass'n, 136 Cal.App. 508, 29 P.2d 285 (First Dist.1934); Wilkinson v. The Standard Accident Ins. Co. of Detroit, supra.
Ins. Co., [ 83 Cal. 263 (23 P. 869, 17 Am.St. Rep. 233)] supra.)" [3] The rule is therefore settled in this court, as in the federal and most state courts, that an unconditional denial of liability by the insurer after the insured has incurred loss and made claim under the policy gives rise to an immediate right of action. ( Paez v. Mutual Indem. etc. Ins. Co., supra;Williams v. Hartford Ins. Co., 54 Cal. 442, 448 [35 Am.Rep. 77]; Carroll v. Girard F. Ins. Co., 72 Cal. 297, 299 [13 P. 863]; Millard v. Legion of Honor, 81 Cal. 340, 349 [22 P. 864]; Farnum v. Phoenix Insurance Co., 83 Cal. 246, 263 [23 P. 869, 17 Am.St.Rep. 233]; McCollough v. Home Ins. Co., 155 Cal. 659, 663 [ 102 P. 814, 18 Ann. Cas. 862]; Wilkinson v. Standard Acc. Ins. Co., 180 Cal. 252, 258 [ 180 P. 607]; Grant v. Sun Indemnity Co., 11 Cal.2d 438, 440 [ 80 P.2d 996]; Lee v. United States Fire Ins. Co., 55 Cal.App. 391, 395-96 [ 203 P. 774]; Francis v. Iowa Nat. Fire Ins.Co., 112 Cal.App. 565, 573-74 [ 297 P. 122]; Hill v. MutualBenefit Health etc. Assn., 136 Cal.App. 508, 512 [ 29 P.2d 285]; Fohl v. Metropolitan Life Ins. Co., 54 Cal.App.2d 368, 383 [ 129 P.2d 24]; Trousdell v. Equitable Life Assur. Soc., 55 Cal.App.2d 74, 84 [ 130 P.2d 173]; see 7 Couch on Insurance (1930), § 1656b, pp. 5755-56 and Cum.Supp. p. 83, citing cases in support of the general rule from the Supreme Court of the United States, Canada, and twenty-eight state courts; 5 Joyce, Insurance, (2d ed.), § 3211; Civ. Code, § 1440; cf. dictum in Genuser v. Ocean Accident etc. Corp., 57 Cal.App.2d 979, 983 [ 135 P.2d 670].) The desirability of the rule is apparent, for if a waiting period were necessary notwithstanding the election of the insurer to deny liability, it would become a trap for the unwary, and would encourage dilatory tactics as in the present case.
[2] It is a well-recognized rule, which we conclude is applicable to the special circumstances here, that the insurer may not repudiate the policy, deny all liability, and at the same time be permitted to stand on a provision inserted in the policy for its benefit. ( Farnum v. Phoenix Ins. Co., 83 Cal. 246, 262, 263 [23 P. 869, 17 Am. St. Rep. 233]; Hill v. Mutual Benefit Health etc.Assn., 136 Cal.App. 508 [ 29 P.2d 285]; Continental Ins.Co. v. Wickham, 110 Ga. 129 [35 S.E. 287]; Royal Ins. Co. v. Martin, 192 U.S. 149 [24 Sup. Ct. 247, 48 L.Ed. 385]; Joyce, the Law of Insurance, 2d ed., vol. 5, sec. 3211.) [3] Furthermore, under the facts shown, it may not be said that the trial court abused its discretion in permitting the amendment to the complaint.
[9] "Furthermore, even if the issue had been properly and timely raised, it would seem that where as here the defendant denied all liability, there is a waiver of the condition requiring proof of disability, if it be a condition precedent to recovery. ( Hill v. Mutual Benefit Health etc. Assn., 136 Cal.App. 508 [ 29 P.2d 285]; Wilkinson v. Standard Acc. Ins.Co., 180 Cal. 252 [ 180 P. 607]; Restatement of the Law [Contracts], sec. 306.)" [10] We cannot accept the balance of the District Court of Appeal opinion wherein it is held that though there had been a waiver by defendant of proof of disability, nevertheless it was indispensable that plaintiff furnish such proof during the continued existence of the total disability in order to fix the time when payments under the policies first became due.
We do not find authority which supports plaintiff's contention that denial of liability under a policy of insurance of itself constitutes a waiver by the insurer of a condition of the policy limiting the time for the commencement of an action. Undoubtedly denial of liability does excuse the insured from thereafter furnishing proof of loss ( Hill v. Mutual Benefit Health etc. Assn., (1934) 136 Cal.App. 508 [ 29 P.2d 285]) and from compliance with other stipulations specifying conditions precedent to suit on the policy ( Farnum v. Phoenix Insurance Co., (1890) 83 Cal. 246 [23 P. 869, 17 Am.St.Rep. 233].) But there is no occasion for bringing suit on a policy unless the insurer denies liability in whole or in part, and the contract cannot be construed to mean that the limitation is effective where the company admits partial but not total liability and is not effective where it denies all liability.
This is "as soon as practicable" and a substantial compliance with the policy as to time. McKenna v. International Indem. Co., 125 Wn. 28, 215 P. 66; Hawthorne v. Travelers' Pro. Ass'n, 112 Kan. 356, 210 P. 1086, 29 A.L.R. 494; Lincke v. Mut. Ben. Health Acc., 76 Cal.App.2d 222, 172 P.2d 912; Hill v. Mut. Ben. Health Acc., 136 Cal.App. 508, 29 P.2d 285; Bachman v. Ind. Indem. Co., 112 Cal.App. 465, 297 P. 110, 298 P. 57; Milks v. Tritten, 264 Mich. 414, 250 N.W. 262. Violations of conditions by the assured will not release the insurer unless it is prejudiced by the violation.