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Jones v. Bituminous Casualty Corp.12/19/1991
Opinion OF THE COURT BY JUSTICE LEIBSON
REVERSING AND REMANDING
Bituminous Casualty Corporation, the respondent, filed a Declaration of Rights action in Knox Circuit Court seeking a judgment declaring it has "no obligation or duty to appear and defend . . . or to indemnify" under a liability insurance policy issued to Huston Partin and others doing business as S & J Mining Company, with regard to injuries sustained by John Jones, the movant, in an explosion on the mining company's premises occurring February 7, 1988.
At one point John Jones had been a partner in the enterprise, but at the time of the explosion he was no longer associated with it. He testified that he was revisiting the premises to check on some equipment and to see when the mine would be reopened. He suffered serious injuries when a fire barrel kept on the premises exploded while in use. At the time of the explosion Huston Partin was either the principal party or the sole owner in S & J Mining Company.
The insurance carrier, Bituminous Casualty, was not notified of the occurrence for six and one-half months. The trial court rendered summary judgment in favor of the insurance carrier, declaring "the policy in question is voided because of the insured's breach of the policy requirement of prompt notice." Jones argued the insurance carrier suffered "no prejudice" from the delay in providing notice, but the trial court made its decision on the basis that prejudice is not required. The Court of Appeals has affirmed. We have accepted discretionary review, and we reverse for reasons that follow.
Huston Partin testified by deposition that he purchased the public liability insurance policy at issue because he was required by government authorities to do so in order to obtain his mining permit. Kentucky Administrative Regulation, 405 KAR 10:030, Sec. 4, requires a public liability insurance policy to cover personal injury and property damage to others, including damage caused by the use of explosives.
The policy in question is designated "Commercial General Liability Coverage." The policy period was from June 11, 1987 to June 11, 1988. Throughout the time span of coverage the partners in S & J Mining changed, continually, except for Huston Partin. John Jones became a partner in December 1987, and remained one until the mine was shut down two weeks before the explosion on February 7, 1988.
According to his deposition, Jones went back to the premises to see if the mine owner, Huston Partin, had any plans to reopen in the near future and to check on equipment owned by a different company, Nan Belle Corporation, where Jones was also employed, which was still located at the mine site. Jones and others who had come to the site to see if the mine was going to be reopened started a fire in a fire barrel located on the premises to provide warmth. Some time later Jones went back to the barrel to poke up the fire and the barrel exploded. His right leg was amputated and his hearing and eyesight were permanently impaired as a result of the explosion. Huston Partin testified by deposition that state and federal investigators had reported the explosion was caused by powder (explosives) in the barrel. Subsequently he was cited by the government as the mine operator for a violation generated by his mishandling of explosives.
John Jones testified that he had no idea as to the cause of the explosion, and for some time thought someone had intentionally tried to blow him up. It was only after completion of the investigation that John Jones considered the explosion might have been an accidental occurrence and the subject of a liability ins
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