Commercial Standard Insurance v. Coffman ( 1969 )

Conley Byrd, Justice.

The issue on this appeal is whether the notice given by the insured to appellant Commercial Standard Insurance Companies constitutes a substantial compliance with the policy provision requiring written notice of an accident to the company or any of its authorized agents as soon as practicable.

The record shows that Commercial through its agent Charles Perry had issued a liability policy to Gfuy H. Jones Sr. and that the policy was in force on March 1, 1967 when Senator Jones’ son, Casey, hacked the Senator’s car into an automobile belonging to appellee Ashley R. Coffman. The damages to Mr. Coffman’s car were $72.21.

The Senator testified that when he learned of the accident, he called Mr. Perry’s office and reported it to one of Perry’s secretaries. On April 28, 1967 and again on July 3, 1967 Mr. Coffman wrote letters to the Senator requesting his check for $72.21 to cover the loss. Mr. Perry, at the same time, had some problems with the Insurance Commissioner and was being represented by the Senator. The Senator admits that he did not give written notice over his signature but says that he may have shown Mr. Coffman’s letters to Mr. Perry in his office, but thinks that he sent them on to Mr. Perry.

Jack Henderson, an adjuster for Mr. Coffman’s insurance carrier, took the repair estimates for Mr. Coffman’s car to Senator Jones. When he learned that the Senator had his insurance with Mr. Perry, he took the estimates to Mr. Perry’s office at the Senator’s request. When Mr. Henderson offered the estimates to Mr. Perry’s office help, he was informed that the Senator did not have insurance there at that time and that there was no coverage for the car and driver involved in the collision with Mr. Coffman.

When Mr. Coffman brought suit against Casey Jones under the small claims statute, the summons was given to Mr. Robert Ott, Commercial agent succeeding Mr. Peny, but Commercial denied liability and refused to defend. The Senator’s law partner, appellee Phil Stratton, was employed to defend Casey in Mr. Coffman’s suit.

When Mr. Coffman’s judgment against Casey was not paid, he brought this action directly against Commercial, pursuant to Ark. Stat. Ann. § 66-4001 (Repl. 1966), for the amount of the judgment, statutory penalty and attorney’s fees. Mr. Stratton intervened claiming $150.00 Attorney’s fee for defending Mr. Coffman’s action against Casey. 'The trial court found that there was substantial compliance with the written notice provision and entered judgment as prayed together with an attorney’s fee of $225.00.

For reversal Commercial relies upon the following-two points:

1. The trial court erred in ruling that Guy H. Jones Sr. had complied with the terms and conditions of his policy regarding written notice of the accident, and

2. That trial court erred in awarding judgment to intervenor, Phil Stratton, for legal services performed on behalf of Casey R. Jones.

Commercial does not argue the latter point and we consider it waived. The first point we consider to be without merit.

Commercial’s policy, on the issue of notice provides: “In the event of an accident, occurrence or loss, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the insured to the company or any of its authorized agents as soon as practicable____”

Mr. Coffman’s letter of April 28th, to Senator Jones reads:

“Dear Mr. Jones,

I have tried to reach you by phone on numerous occasions to ask you for a check for $72.21 to cover the costs of repairs to my Pontiac when your son, Casey, backed into it at the Tasty Freeze Wednesday, March 1, 1967. The police have a complete record of the accident in case you want to check into the matter.

I am enclosing a duplicate copy of the bill. Will you be kind enough to let me have a check for this amount?

Sincerely,

Ashley R. Coffman.”

Obviously Mr. Coffman’s letter would comply with the written notice requirements of the policy if it bad been turned over to Commercial’s agent. Whether the letter was turned over to the agent was an issue of fact before the trial court. On that issue the trial court found against Commercial and, as we have shown, there is substantial evidence in the record to support such finding.

Affirmed. Appellee’s Counsel are granted an additional fee of $250.00 for their services on this appeal.

Brown and Fogleman, JJ., dissent.