Summary
In Lomont v. State Farm Mut. Auto Ins. Co., (1958) 128 Ind. App. 645, 151 N.E.2d 701, the insured's car was being driven by the insured's friend, with the insured's permission, when it was involved in a collision with another car.
Summary of this case from Miller v. DiltsOpinion
No. 18,910.
Filed July 2, 1958.
1. INSTRUMENTS — Construction — Ambiguity — Insurance Policy — Words and Phrases. — The use of the word "Assured" in the instant insurance policy, clearly indicates not only the named assured, but also any other person or organization legally using the automobile and since there is no ambiguity involved, there is no reason for invoking rules of construction. p. 650.
2. INSURANCE — Contracts — Conditions Precedent — Notices — Summons — Litigation — Waiver. — Many policies of liability insurance make the forwarding to the insurer of notices, summonses, processes, and other papers relating to a claim, a condition precedent to the liability of the insurer. Where this is the case, compliance with such a condition is essential in order to permit recovery in the absence of sufficient excuse or waiver. p. 650.
3. INSURANCE — Contracts — Conditions Precedent — Waiver — Evidence. — Appellant contends that insurer may waive the condition precedent of forwarding suit papers, but it is held on appeal that he fails to show by the evidence any conduct on the part of the appellee which requires the conclusion that such condition was waived. p. 652.
4. PLEADING AND PRACTICE — Statutes — General Allegation of Performance of Conditions Precedent — Motion to Make More Specific — Amended Complaint. — When appellant made a general allegation of performance of all conditions precedent and was required upon motion by appellee to make the complaint more specific in reference to performance of those conditions precedent, no harmful error was committed in sustaining this motion since appellant, under the facts, could not recover under the complaint as it was before or after amendment, and therefore, appellant was not harmed thereby. p. 652.
From the Superior Court of Allen County, Robert E. Leonard, Judge.
Appellant, Francis H. Lomont, sustained personal injury while riding as a passenger in an automobile driven by Dee J. Coles with the permission of the owner, Herman Schlatter, who carried a liability insurance policy with appellee, State Farm Mutual Automobile Insurance Company. A judgment was rendered for appellant against Dee J. Coles. Appellant brought this action against appellee to recover the amount of the judgment. From an adverse judgment appellant takes this appeal. Affirmed. By the Second Division.
In the case of Biel, Inc. v. Kirsch, 238 Ind. 372, 150 N.E.2d 896, our Supreme Court, by a per curiam opinion said:
"Burns' § 4-202 provides in part that the Appellate Court `shall sit in two [2] divisions, which shall be designated as the Appellate Court of Indiana, division number one and two respectively.' (Our italics.) It provides that when questions involved are of `sufficient importance' the two divisions may sit in banc.
"The above appeal has been certified to this court from the Appellate Court under the following Order:
"`Four judges of this court having failed to concur in a result this case is ordered transferred to the Supreme Court as provided by § 4-209, Burns' 1946 Replacement.'
"It does not appear that this cause was first heard by one of the divisions of the Appellate Court and the judges thereof failed to concur in the result or that any determination was made that the questions involved were of sufficient importance as to be heard by the two divisions in banc.
"Burns' § 4-209 provides in part:
"`. . . Whenever, upon the determination of any appeal, it shall appear that the three (3) judges of the division do not concur in the result the case shall be submitted to and be decided by the entire Appellate Court, and, in that case, if four [4] judges shall not concur in the result, the case shall be transferred to the Supreme Court, . . .'
"The history of the legislation creating the Appellate Court reveals that at the time the membership of the court was increased from 5 to 6 judges, the statute also provided the court `shall sit in two divisions.' (Acts 1901, Chapter 247.)
"Burns' §§ 4-202 and 4-209 are mandatory that the cause first be determined by a division of the Appellate Court unless three judges in a division fail to agree or the question involves a matter of sufficient importance that the entire court decides to hear the matter. The record does not show that either of these conditions precedent occurred to give jurisdiction to the Appellate Court in banc to hear the matter.[1]
"This cause is therefore remanded to the Appellate Court, with directions that the proper division of said court hear and determine said appeal as provided by the statutes.[2]
"[1] For a similar provision requiring U.S. Circuit Court of Appeals to sit in divisions see: U.S.C.A., sec. 46.
"[2] From the opinions written in the Appellate Court in this case it appears that if either division of that court had considered the appeal, the resulting decision of that division would have been unanimous."
Harry H. Hilgemann, Paul E. Congdon, Robert L. Kaag, both of counsel, all of Fort Wayne, for appellant.
J.A. Bruggeman and Barrett, Barrett McNagny, both of Fort Wayne, for appellee.
In September, 1945, appellant was riding in an automobile driven by one Dee J. Coles with the permission of the owner, Herman Schlatter, when it was involved in a collision with an automobile driven by one James Screeton. Schlatter carried a policy of liability insurance on his automobile with appellee.
On the same day of said collision or within a day or two thereafter notice of the accident was given by said Coles to a duly authorized agent of said appellee and a formal notice and proof of the same was executed and delivered to said agent by Herman Schlatter, the named insured on said policy.
In September of 1947 appellant filed a suit for personal injuries against both Coles and Screeton. The action was dismissed as to Screeton and later, following proceedings not material here, judgment was rendered against Coles. Execution was issued and returned unsatisfied and Coles has no property, means or assets with which and out of which the judgment can be satisfied. The named assured, Herman Schlatter, died on the 14th day of October, 1951, after the filing of the action against Coles but before judgment.
Appellant brought this action against appellee to recover the amount of the judgment under the terms of the policy of insurance. The cause was submitted upon an agreed statement of facts resulting in a finding for appellee upon which the court rendered judgment accordingly. Appellant's motion for new trial was overruled and such ruling is here assigned as error.
Appellee admits that Coles was an "additional insured" under the provisions of the policy and that the policy furnished him the same protection as offered the named insured Herman Schlatter. Appellee further admits that Coles was a third party beneficiary under the policy.
Appellee denies liability to appellant "because of the flagrant breach by Coles of the terms and conditions of the policy, the total failure of anyone to give it any notice of the action or damages brought by appellant against Coles, the denial to it of a chance to defend the action against Coles and the denial to it of its day in court by failing to give it a chance to litigate the liability of Coles to appellant for whom it was a mere indemnitor."
It was stipulated that no notice was ever given by appellant or any person on his behalf or by the assured or anyone on his behalf of the filing of the action for damages against Coles and Screeton, and that no process or other papers in connection with the action were ever forwarded to appellee and appellee was not advised concerning developments in the action. Coles did not ask appellee to defend him.
Appellee insurance company, after receiving notice of the collision, made no negotiation or settlement of the claim of the appellant against Coles. It first received notice of the existence of the action against Coles after the rendition of judgment.
It was further stipulated that "the defendant insurance company has always denied and is denying liability to the plaintiff Lomont, . . . ."
In the policy sued on, under the heading of "SCHEDULE OF COVERAGES," it is provided that the policy covers G "BODILY INJURY LIABILITY" and H "PROPERTY DAMAGE LIABILITY." Coverage "G" is the only one involved here.
Under the heading of "DEFINITION OF COVERAGES" the policy provides:
"This policy insures for, and the Company agrees to pay, the legal liability imposed upon the Assured for damages resulting from an accident by reason of the ownership, maintenance or use of the described automobile on account of G BODILY INJURY AND/OR DEATH at any time resulting therefrom sustained by any person or persons. H. DAMAGE TO OR DESTRUCTION OF PROPERTY of any description including loss of use thereof."
The following appears under the heading "Additional Benefits under Coverages G and H":
"(1) Other Drivers Covered. The protection under Coverages G and H is extended to cover other drivers as follows: The unqualified word `Assured' wherever used in Coverages G and H and in other parts of this Policy when applicable to these Coverages, includes not only the named Assured, but also any other person or organization while legally using the automobile, . . . ."
Under the heading of "GENERAL CONDITIONS" it is provided:
"(5) Instructions in Case of Loss. (a) Notice and Proof of Loss. In the event of loss or damage to the automobile, or in the event of accident involving injury to persons or damage to property of others, the Assured, or any person claiming the benefits of this Policy, shall give to the Company, or its authorized agent, written notice as soon as reasonably possible thereafter. . . .
(d) Forwarding Summons. If claim be made or action be brought against the Assured for damage covered under Coverages G or H, the Assured shall immediately notify the company and immediately forward to it every summons or other paper or process served on, or received by, him in connection therewith, and Assured shall keep the Company advised respecting further developments in the nature of claims or suits when and as they come to his knowledge."
As previously stated, the notice required by the above quoted provision (5) (a) of the "GENERAL CONDITIONS" was duly given. The principal controversy here relates to the effect of the failure to notify appellee of the action brought against Coles and to forward "suit papers."
It is appellant's contention that the policy itself, without resort to judicial construction, establishes appellee's liability; that under the terms of the policy where suit is not brought against the named assured but only against an additional insured, there is no requirement that suit papers be forwarded; that if, however, there is any doubt as to the construction of the contract the same must be resolved against the insurance company.
We find no reason for invoking rules of construction. There is no ambiguity involved. Automobile Underwriters, Inc. v. Camp (1940), 217 Ind. 328, 342, 28 N.E.2d 68, 128 A.L.R. 1024; 1 Ebner, Admr. v. Ohio, etc. Ins. Co. (1918), 69 Ind. App. 32, 121 N.E. 315. The policy clearly provides that the unqualified use of the word "Assured," whenever used in coverages G and H and in other parts of the policy when applicable to these coverages, includes not only the named assured but also any other person or organization while legally using the automobile. Clause (5) (d), which provides for the forwarding of suit papers, is applicable to these coverages and these coverages only and, therefore, the word "Assured" as used therein includes not only the named assured but also any other person legally using the automobile. It was clearly not the intention to extend to other persons insured greater rights or privileges in this respect than those extended to the named insured.
As stated in an annotation 6 A.L.R.2d 661:
"Many, if not all, policies of liability insurance make the forwarding to the insurer of notices, summons, process or other papers relating to an 2. action against the insured within a certain time a condition precedent of liability on the part of the insurer. Where this is the case, compliance with such a condition is essential in the absence of a sufficient excuse or a waiver, in order to permit a recovery on the policy."
See also 45 C.J.S. Insurance, § 1048, p. 1274, and London, etc. Accident Co. v. Siwy (1905), 35 Ind. App. 340, 66 N.E. 481. There was no compliance with this condition precedent.
Appellant argues that assuming the forwarding of suit papers was a condition precedent to liability, such condition was waived by appellee; that a denial of liability under an insurance policy constitutes a waiver of the requirement of giving notice of the filing of an action.
Notice was admittedly given to appellee by both Coles and Schlatter of the happening of the accident shortly after it occurred. However, the insurance company first received notice of the existence of the action against Coles after judgment had been rendered against him over eight years after the happening of the accident. The stipulation in this case is that appellee "has always denied and is denying liability to the plaintiff Lomont." There is nothing in the record to show that appellee ever knew that any claim or assertion of liability was being made against it by appellant during the eight years or until the present action was filed. There is nothing in the record to show to whom, if anyone, the denial was communicated or upon what ground the denial was based, whether upon a contention that under the facts appellant was not entitled to recover or upon some other ground. There is nothing to show that by such denial the company disclaimed its liability to indemnify should Coles' liability be established or that it declared its intention not to defend any suit or that anyone was induced to inaction by such denial.
That conditions in insurance policies requiring the forwarding of suit papers may be waived by the company is not disputed by appellee. However, there is no conduct on the part of the 3. appellee shown by the evidence here which requires the conclusion that such condition was waived. Appellant's final contention is that the trial court erred in sustaining the appellee's motion to make the complaint more specific. Appellant's complaint alleged that "all of the terms of the policy required to be performed by the plaintiff herein have been performed and fulfilled by him." Appellee's motion was to make this allegation more specific by requiring appellant to state whether or not the terms and conditions of the policy had been performed. This motion was sustained. Whereupon appellant amended his complaint to allege that all terms and conditions of the policy have been performed and fulfilled. Appellant relies upon § 2-1039, Burns' 1946 Replacement.
Regardless of whether or not error was committed in this ruling, appellant was not harmed thereby. The facts were 4. all stipulated and under such facts appellant may not recover either under the complaint as it was before it was amended or thereafter.
No error which requires the reversal of the judgment below has been shown.
Judgment affirmed.
Crumpacker, J., and Kelley, J., concur.
Author's Note: A review of the history of the Appellate Court reveals that by the Acts of the General Assembly of 1891, ch. 37, p. 39, this court was created consisting of five (5) judges appointed by the governor and the state divided into five (5) appellate districts;
That by the Acts of the General Assembly of 1901, ch. 247, p. 565, and entitled "An Act concerning appeals, increasing the number of judges of the Appellate Court, providing that the same shall sit in two divisions, defining their jurisdiction and the jurisdiction of the Supreme Court, repealing former laws and declaring an emergency."
That thereafter said court sat in two divisions designated as the Appellate Court of Indiana, Division No. 1 and No. 2 respectively, and did so until the May Term of 1926; that 35 judges have served on said court since 1926, a number of whom have served with honor and distinction, a few of whom have been elevated to the Supreme Court of the State of Indiana;
That since the May Term of 1926, this court has sat In Banc without objection by either the bench or bar and thus it would seem that the asserted provision for the division of the court was found to be impracticable and not conducive to the more thorough and well considered opinions resulting from consideration by the full court.
When will this rule confusion cease?
NOTE. — Reported in 151 N.E.2d 701.