Summary
In Preferred Acc. Ins. Co. v. Castellano, 148 F.2d 761, (C.A. 2) no notice of an accident was given the insurance company until six weeks after it happened.
Summary of this case from William H. Sill Mortgages, Inc. v. Ohio Casualty InsuranceOpinion
No. 261.
April 24, 1945.
Appeal from the District Court of the United States for the District of Connecticut.
Action by the Preferred Accident Insurance Company of New York against Oreste Castellano, the Waterbury Troy Steam Laundry Company, Inc., and Nellie Chapman, for a declaratory judgment of plaintiff's nonliability on an automobile liability policy. From the judgment rendered, Oreste Castellano and the Waterbury Troy Steam Laundry Company, Inc., appeal.
Affirmed.
Plaintiff insurance company brought this action for a declaratory judgment of its non-liability on a policy it had issued to defendant laundry company as assured which covered the laundry company's liability to others for damages caused by accidents arising out of the operation of its automobile truck, including accidents occurring during its loading or unloading. Castellano was a driver of the laundry company's delivery truck; the defendant Nellie Chapman is a person claiming to be injured in connection with the unloading of the truck. The court below, after a trial, made findings of fact (amply supported by the evidence) which include the following:
"On December 16, 1942, defendant Oreste Castellano was in the employ of the defendant The Waterbury Troy Steam Laundry Co., Inc., and in the course of his employment drove a delivery truck, which was one of the automobiles covered by the policy mentioned above, to a point on East Main Street in the city of Waterbury, Connecticut, alongside the curb on the southerly side of the street, directly in front of the Palace Hotel. Defendant Castellano removed a basket of laundry from the truck to the sidewalk, crossed the sidewalk from the truck to the entrance to the lobby of the hotel, dragging the basket of laundry across the sidewalk. The sidewalk at this point is nine or ten feet wide. At a point near the door of the lobby of the hotel, defendant Nellie Chapman collided with defendant Castellano, fell, and suffered bodily injury. She was, on the same day, removed to a hospital. * * * On or about March 25, 1943, defendant The Waterbury Troy Steam Laundry Co., Inc., received a letter from Attorney Irving D. Johnson, representing defendant Chapman, advising defendant The Waterbury Troy Steam Laundry Co., Inc. of a claim for damages arising out of the negligence of the defendant Castellano in the collision with the defendant Chapman on December 16, 1942. The letter was given to defendant Castellano by an officer of the defendant corporation with instructions to report the matter to one Bronson, agent of the plaintiff, who had written the policy in suit, or to take the matter up with Attorney Johnson. Castellano did neither, and no notice of the claim or of the accident was given the plaintiff or its representative at that time. Action was instituted by Attorney Johnson on behalf of defendant Chapman against defendants Castellano and The Waterbury Troy Steam Laundry Co., Inc. by writ and complaint dated May 6, 1943, and served upon the defendants therein, Castellano and The Waterbury Troy Steam Laundry Co., Inc. on May 7, 1943. Thereafter, on or before May 11, 1943, defendant The Waterbury Troy Steam Laundry Co., Inc. sent to Bronson, agent of the plaintiff, the writ and the complaint received by it. Bronson, on the same date, notified the Claim Department of the plaintiff at Hartford, and an investigator was sent to Waterbury on that date."
The court below entered a declaratory judgment that "none of the defendants is entitled to recover of the plaintiff * * * and the plaintiff is not required or obligated to defend the action" brought by defendant Chapman against the defendant laundry company.
M.J. Blumenfeld, of Hartford, Conn., for plaintiff-appellee.
Frank T. Healey and Walter E. Monagan, both of Waterbury, Conn., for defendants-appellants.
Before L. HAND, CHASE, and FRANK, Circuit Judges.
1. This case discloses an actual case or controversy within the Declaratory Judgment Act, 28 U.S.C.A. § 400. See Maryland Casualty Co. v. Pacific Coal and Oil Co., 312 U.S. 270, 61 S.Ct. 510, 85 L.Ed. 826.
2. The policy is expressly made "subject to the * * * conditions * * * of this policy." One of its "conditions" reads, "When an accident occurs, written notice shall be given by or on behalf of the insured to the company, or one of its authorized agents, as soon as practicable." The letter of March 25, 1943 from Miss Chapman's lawyer advised the laundry company of the details of the accident and that Miss Chapman had been seriously and permanently injured. Not until May 7, six weeks later, did the laundry company give any notice to plaintiff. The laundry company thus clearly failed to comply with an explicit condition precedent.
Defendants, however, pointing to the fact that the insurance company here made no affirmative showing that this noncompliance caused it actual prejudice, assert that, absent such a showing, the noncompliance is no defense to an action on the policy. We cannot agree. The usual rule is otherwise; see Coleman v. New Amsterdam Casualty Co., 247 N.Y. 271, 276, 277, 160 N.E. 367, 72 A.L.R. 1443. In Curran v. Connecticut Indemnity Co., 127 Conn. 692, 20 A.2d 87, 89, the court, citing Coleman v. New Amsterdam Casualty Co., said, "In determining whether a condition to co-operate has been broken, we are dealing with contract rights, and if there has been a breach, prejudice need not appear." The condition was not the same as that involved here, but we think that distinction immaterial. To be sure, in other cases, the Connecticut court has said that notice need not be given when the accident is trivial and there is no reasonable ground for believing at the time that it involves any injury insured against. Baker v. Metropolitan Casualty Co., 118 Conn. 147, 171 A. 7; Rochon v. Preferred Accident Insurance Co., 118 Conn. 190, 171 A. 429. This would perhaps excuse the failure of the company to give notice to the insurance company at the time of the accident. But certainly the insured had reasonable ground for believing at the time of the receipt of the letter from Miss Chapman's lawyer that the injury was serious enough to warrant notice to the insurance company. A comment, by way of dictum, which perhaps squints in favor of defendant's contention is found in Carroll Co. v. New Amsterdam Casualty Co., 121 Conn. 486, 185 A. 579, 581; but we think that the later Curran case, supra, erased that dictum.
Since defendants lose on this point, we need not consider whether the policy covered the kind of accident which here occurred.
Affirmed.