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Manzi v. Cotton States Mutual Insurance Co.3/13/2000
Ru-101
On April 18, 1997, Lisa Manzi was injured in an automobile collision. She sued Wendell Kistler, whom she claimed was driving the truck in which she was a passenger. On November 3, 1997, she served Cotton States Mutual Insurance Company, her uninsured motorist carrier. Cotton States moved for summary judgment, arguing that it had no liability under the policy because Manzi failed to notify it of the accident in a timely manner. The trial court granted the motion, and Manzi appeals. For reasons discussed below, we affirm.
1. Section IV of the insurance policy, entitled "DUTIES AFTER AN ACCIDENT OR LOSS," provides in relevant part as follows:
We must be notified promptly, but in no event later than 60 days, of how, when and where the accident or loss happened. Notice should also include the names and addresses of any injured persons and of any witnesses. Receipt of such notice by the company or any of its authorized agents shall be a condition precedent to the existence of any coverage under this policy and of the company's obligation to defend any claim under this policy.
This notice provision is applicable to all claims under the policy, including uninsured motorist claims.
It is undisputed that Cotton States was not notified of the accident until November 3, 1997, when it was served with Manzi's complaint. Although this was more than 60 days after the accident, Manzi contends that the notice provision is ambiguous because it does not state that the 60 day period begins on the date of the accident. She argues that, with respect to uninsured motorist claims, the 60 day period should not begin until it is discovered that the defendant is uninsured. Cotton States, on the other hand, argues that the policy unambiguously requires notice to be given within 60 days after the accident or loss.
Manzi relies primarily on Gregory v. Allstate Ins. Co., where the policy contained a provision requiring that notice of an accident or loss be given "as soon as practicable." The policy did not, however, state that compliance with the notice provision was a condition precedent to the insurer's obligations thereunder. We held that "where failure to [give notice as soon as practicable] is not made the breach of a condition precedent, the real defense must be based on the issue of whether the insurer has been prejudiced by delay." We then stated that
he uninsured motorist endorsement becomes operative, not when there has been an accident, but when it is ascertained that the operator was uninsured. Where the uninsured motorist endorsement provides for notice as soon as practicable, this should be interpreted as if it read as soon as practicable after discovery of the uninsured status, and means within a reasonable time under all of the circumstances if the insured was reasonably diligent in his efforts to determine the insurance status of his adversary.
Manzi argues that Gregory requires us to construe the notice provision, with respect to uninsured motorist claims, to require notice "promptly, but in no event later than 60 days, after discovery of the uninsured status."
Cotton States, on the other hand, relies on Cotton States Mut. Ins. Co. v. Hipps, in which we construed this same policy provision to be unambiguous. The insured's son in that case was involved in a collision. Although the insured sued the other individuals involved, he did not notify his own insurer, Cotton States, until a year after the accident, after the other individuals had filed counterclaims for personal injury and property damage. In holding that Cotton States was entitled to summary judgment on the issue of coverage, we noted t
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