Johnson v. Southeastern Fidelity Insurance , 178 Ga. App. 431 ( 1986 )

Beasley, Judge,

dissenting in part.

I would affirm the grant of summary judgment to Protective, the employer’s motor vehicle insurer, on the ground that claimant failed to give timely notice to the insurer. This is a different basis than the trial court’s reason, but the result is the same. Orkin Exterminating Co. v. Walker, 251 Ga. 536, 539 (307 SE2d 914) (1983).

It is undisputed that the first notice Protective had, written or otherwise, of the occurrence or of the claim, was the letter from claimant Johnson’s attorney nearly one-and-a-half years (17 months) after the heart attack. This conclusively exceeds the requirement that notice be given “as soon as practicable,” since his wife reported it to his insurance agent even while he was in the hospital and he went to see his own insurance agent when he got out. So he was not unable to give notice. The claimant contends that there is at least a question of fact regarding whether notice was given “as soon as practicable” because his employer knew all about the occurrence and told him that all insurance matters would be taken care of. He was never told what insurer the employer had but had often been told that the employer had no insurance on the vehicles. Then when Johnson found out he would receive no benefits, he contacted an attorney whose investigation led to the claim being made against the employer’s insurer.

Thus Johnson places the blame for the delay on his employer. But the insurer has no control whatsoever on what its insured tell? the latter’s employees with respect to coverage. The employer is not an agent of the insurer in this regard. The contract provisions govern, and as has been recognized, proper notice was a condition precedent to recovery. Bates v. Holyoke Mut. Ins. Co., 171 Ga. App. 164, 165 (318 SE2d 777) (1984), aff'd 253 Ga. 697 (324 SE2d 474) (1985). The law acknowledges that there is “a compelling need on the part of the insurer to receive timely notice of the events giving rise to a claim.” Flamm v. Doe, 167 Ga. App. 587, 588 (307 SE2d 105) (1983). Reliance on a third party’s statements about coverage should not be a legal factor to elasticize the “as soon as practicable” prerequisite until it elongates the period for notice so that the purpose of requiring timely notice is frustrated.

This is one of those situations where the issue of satisfactory compliance, normally one for the jury, is resolvable as a matter of law. See Bates v. Holyoke Mut. Ins. Co., 253 Ga. 697, supra; Golder v. U. S. Auto. Assn., 177 Ga. App. 194 (1) (338 SE2d 771) (1985). Here the claimant simply relied upon the say-so and action of a third party, rather than pursuing his claim. “The insured seeking to avail himself of the coverage afforded by the policy is under a duty to acquaint himself with his responsibilities thereunder.” Flamm v. Doe, supra at 588. Since it is incumbent on the insurer to investigate the circumstances giving rise to the claim, “which it may not be able to accomplish in the absence of timely notice,” Flamm, supra at 588, and the one who decided to make the claim has control over whether he wishes to pursue it and what he relies on in making that determination, I would not find that a jury question remains, based on the excuse for delay being reliance on the employer.

Whether this would give rise to a claim or claims against the employer arising out of the contractual relationship with the employee, is not a question to be addressed here. Before us is whether the claimant gave notice as soon as practicable to the risk-bearer.

I do believe there is a question of fact with respect to the notice given Johnson’s own insurer, since he told the insurer’s agent and was not advised to proceed.

Decided March 10, 1986 Rehearings denied March 27, 1986 Larry D. Ruskaup, James M. Aaron, Jr., for appellant. Richard B. Eason, Jr., W. Meade Burns, Jr., Roger Mills, for appellees.

In all other respects, I agree with my brethren. I am authorized to state that Presiding Judge Deen, Presiding Judge Birdsong and Judge Sognier join in this dissent.