Morehead v. Doe , 324 S.C. 559 ( 1996 )

GOOLSBY, Judge:

Leca Morehead brings this action against John Doe, alleging she was injured as a result of a near collision between a vehicle operated by her husband and one operated by John Doe, an unknown driver. The trial court, following a bench trial, granted Morehead judgment against John Doe on the threshold question of whether Morehead, under all the circumstances, reported the accident to an appropriate police authority within a reasonable time after the accident’s occurrence. Doe appeals. We reverse.

On July 21,1989, while Morehead was riding as a passenger and traveling through the town of Prosperity in an automobile driven by her husband, she sustained injuries to her neck and back when her husband slammed on the brakes and swerved to avoid hitting a vehicle driven by Doe. Rather than immediately report the accident to an appropriate police authority, Morehead and her husband continued on their way to Charleston.

Morehead, a licensed property and casualty agent and a nine-year employee of the Chastain Insurance Agency in Westminster, completed a loss notice form on July 25, 1989, and, as both an insured and a representative of the Chastain Insurance Agency, reported the accident to American Mutual Fire Insurance Company through the Chastain Insurance Agency. American Mutual thereafter began investigating Morehead’s claim. On or about April 2, 1990, the trial court found American Mutual requested Morehead to provide it with a copy of the “accident report.”¹ After receiving this request, Morehead reported the accident four days later, on April 6, 1990, to the South Carolina Department of Highways and Public Transportation.

We agree with Doe that Morehead did not comply with the reporting requirement of S.C.Code Ann. § 38-77-170 (Supp.1995).² Her accident occurred on July 21, 1989. She waited until April 6, 1990, to report it to an appropriate police authority. We think a period of eight months, or 259 days, is not a reasonable time for one to wait to report an automobile accident. Cf. S.C.Code Ann. § 56-5-1260 (1991) (an accident resulting in injury must be reported immediately); S.C.Code Ann. § 56-5-1270 (1991) (a written report must be forwarded to the Department within fifteen days of an accident where a law enforcement officer does not investigate the accident).

(1) the insured or someone in his behalf has reported the accident to some appropriate police authority within a reasonable time, under all the circumstances, after its occurrence.

The trial court, however, points to “all the circumstances” and states, when they are considered, “the reporting of the accident on April 6, 1990, is reasonable.” And what are these circumstances? Morehead reported the accident to American Mutual four days after its occurrence; Morehead reported the accident to a police authority “when she became aware that it was a requirement of law”; and “[American Mutual] had at its disposal the same information at the time the accident was reported to the [police authority] that [American Mutual] had when [Morehead] notified it four days after the accident.”

The fact that Morehead reported the accident to American Mutual is of no moment insofar as it affects her right to bring this action, the only right we are concerned with here. The statute plainly bottoms this right of action on a report “of the accident to some police authority.” The report of an accident by an insured to the insurance company is not a substitute for a report of the accident by the insured to the police. See Barfield v. Insurance Co. of North America, 59 Tenn.App. 631, 443 S.W.2d 482 (1968) (disallowing recovery under uninsured motorist coverage where the insured failed to report the accident to the police, notwithstanding the insured reported the accident to the insurer).

The fact that Morehead, herself an employee of the very insurance company through which she made her claim to American Mutual, reported the accident to a police authority after she “became aware” she had a duty to do so is not, standing alone, sufficient to accord her a right of action under section 38-77-170. The report to a police authority must be made, as the statute requires, “within a reasonable time.” S.C.Code Ann. § 38-77-170 (Supp.1995). Indeed, because a person is presumed to know the law [Smothers v. United States Fidelity and Guar. Co., 320 S.C. 207, 470 S.E.2d 858 (Ct.App.1996) ], Morehead is presumed to have known on July 21, 1989, the date of the accident, she had no right of action unless she reported the accident to an appropriate police authority within a reasonable time.³

The fact that American Mutual possessed the same information that Morehead reported to the police authority is also of no significance. By not reporting the accident far earlier, Morehead deprived American Mutual of meaningful police assistance in investigating the accident and identifying the at-fault motorist. Obviously, the more quickly investigative action is undertaken by police the more likely the police will apprehend and identify an offender. See Nationwide Mut. Ins. Co. v. Clark, 213 Va. 666, 194 S.E.2d 699, 702 (1973) (“Delay in reporting the accident ... could cause a delay in the investigation [and] [t]his could result in a failure to discover the identity of the unknown motorist and the imposition of liability where it does not primarily belong.”); Barfield, 443 S.W.2d at 491 (“[It] is ... well known ... that immediate investigative action is an important element in apprehending and identifying persons and vehicles involved in ‘hit and run’ accidents.”).

Under the circumstances of this case, especially where it does not appear Morehead was otherwise incapacitated or unable to report the accident promptly to an appropriate police authority, we cannot say that the report she made to the Department eight months after the accident was made in a reasonable time.

The trial court, however, went on to hold “the actions of [American Mutual] led significantly to [Morehead’s] delay” in filing the required police report because “it failed to advise its own insured of the need for an accident report after a claim was filed.” This holding presumes the insurer had a responsibility to advise its insured in this regard. The statute in question, however, does not lay this responsibility upon the insurer. S.C.Code Ann. § 38-77-170 (Supp.1995).

Finally, the trial court, citing to C.T. Drechsler, Annotation, Liability Insurance: Clause With Respect to Notice of Accident or Claim, etc., or With Respect to Forwarding Suit Papers, 18 A.L.R.2d 443, §§ 32, 33 (1951), also held American Mutual had waived and was estopped from relying on More-head’s noncompliance with the reporting requirement of section 38-77-170. In so holding, the trial court relied upon its determination that American Mutual began investigating Morehead’s claim as early as October 2, 1989, waited until April to inquire of Morehead about the police report, and never advised Morehead “of its denial of her claim on the basis of this statute, or any policy provision which would have the same effect.”

American Mutual’s mere investigation of Morehead’s loss did not preclude it from relying on her failure to report the accident to an appropriate police authority within a reasonable time. Sohm v. United States Fidelity & Guar. Co., 352 F.2d 65 (6th Cir.1965). It had a right to assume More-head knew the law and either had complied or would comply with the mandatory police reporting provisions of section 38-77-170 when it undertook to investigate Morehead’s claim.

Further, American Mutual’s failure to advise Morehead earlier of the mandatory police reporting requirement contained in section 38-77-170 is no omission on which Morehead can justifiably rely. American Mutual was presumed to have no greater knowledge of section 38-77-170’s police reporting requirements than was Morehead. Also, as our supreme court noted not long ago in Freeman v. Fisher, 288 S.C. 192, 194, 341 S.E.2d 136, 137 (1986), “estoppel may not be invoked to nullify a mandatory statutory restriction.”

There is no basis whatsoever for the trial court’s conclusion that American Mutual either waived or was estopped from asserting as a defense Morehead’s failure to report the accident to an appropriate police authority within a reasonable time. There were no acts, omissions, or representations by American Mutual upon which Morehead could justifiably rely in failing to report the accident to an appropriate police authority within a reasonable time. Moreover, there was no act or representation by American Mutual that reasonably induced Morehead to believe any prior omissions regarding her report of the accident to an appropriate police authority would be excused.

We might add, we are not involved here with an insurance policy but with a statute that clearly places upon an insured or a representative of an insured the responsibility for reporting an accident to an appropriate police authority. See Nationwide Mut. Ins. Co. v. Clark, 194 S.E.2d at 702 (“The uninsured motorist law ... does not create insurance for the uninsured motorist or the uninsured automobile.”). We are also not involved with the question of whether an insured complied with a provision of a liability insurance policy requiring the. insured to give notice of an accident or a claim to an insurer. Instead, the question before us here is whether an insured complied with a statute mandating the insured or a representative of the insured to report an accident to an appropriate police authority within a reasonable time.

REVERSED.

CURETON, J., concurs. ANDERSON, J., dissents in a separate opinion.

1 . There is some evidence in the record American Mutual requested a police or accident report earlier. The claim file activity log contains an entry dated December 11, 1989, that states Morehead was told American Mutual needed a police report. Also, an adjuster’s transmittal form recounts the adjuster “told [Morehead] we would have to prove her husband was negligent in his driving, have a police report and/or a witness to the accident. She stated that she had no witness nor was a police report made.”

2 . S.C.Code Ann. § 38-77-170 (Supp.1995) provides in part as follows: If the owner or operator of any motor vehicle which causes bodily injury ... to the insured is unknown, there is no right of action or recovery under the uninsured motorist provision, unless:

3 . The trial court found Morehead informed American Mutual on the loss notice form she completed "that the accident had not been reported to law enforcement authorities at that time.” This evidence cuts both ways. An inference can be drawn from the form itself that a report to some police authority might be needed.