Progressive Mountain Insurance Company v. Bishop

FIFTH DIVISION
PHIPPS, P. J.,
DILLARD and PETERSON, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
June 30, 2016
In the Court of Appeals of Georgia
A16A0518. PROGRESSIVE MOUNTAIN INSURANCE CO. v. PE-022
BISHOP
PETERSON, Judge.
Progressive Mountain Insurance Company (“Progressive”) appeals from the
denial of its motion for summary judgment in this coverage dispute with its insured,
James Bishop. The trial court held that there was a jury question as to the sufficiency
of Bishop’s excuse for delay in notifying Progressive about a motor vehicle accident
in which he was injured. Progressive argues that the trial court erred by failing to
consider the entire body of relevant case law on insurance contracts and by failing to
recognize that (1) the prompt notice provision in Bishop’s policy created a condition
precedent to coverage; (2) Bishop’s failure to notify Progressive of the accident until
10 months and 25 days after it occurred was unreasonable as a matter of law and
thereby foreclosed coverage; (3) Bishop’s excuse for the delay in notice was
unjustifiable; and (4) the excuse Bishop offered in an affidavit was contradicted by
his later deposition testimony. These related enumerations of error relate to the same
ultimate question in this appeal: Did Progressive show as a matter of law that Bishop
failed to give notice “promptly” under his policy with the insurance company such
that coverage was foreclosed? Answering that question in the negative, we affirm.
Summary judgment is proper when there is no genuine issue of material fact
and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c). We
review a grant or denial of summary judgment de novo and construe the evidence in
the light most favorable to the nonmovant. Home Builders Ass’n of Savannah v.
Chatham Cty., 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).
So viewed, Bishop was injured in a motor vehicle collision on December 12,
2012. At the time of the collision, Bishop was the named insured of a Progressive
motor vehicle policy that provided for $500,000 in uninsured/underinsured motorist
(“UM”) coverage. The policy provided:
For coverage to apply under this policy, you or the person seeking
coverage must promptly report each accident or loss even if you or the
person seeking coverage is not at fault. You or the person seeking
coverage must provide us with all accident/loss information including
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time, place, and how the accident or loss happened. You or the person
seeking coverage must also obtain and provide us the names and
addresses of all persons involved in the accident or loss, the names and
addresses of any witnesses, and the license plate numbers of the vehicles
involved.
Bishop was treated for his injuries, initially receiving trigger point injections
and epidurals. Following the collision, he was in contact with the at-fault driver’s
insurance company and was aware that there was liability coverage to cover his claim.
On October 17, 2013, he hired an attorney. Through counsel, he gave notice of the
accident to Progressive on November 6, 2013. Bishop underwent surgery related to
his injuries in December 2014.
In both an affidavit and in his deposition, Bishop offered explanations for the
delay in giving notice to Progressive. In the April 2015 affidavit, Bishop said he had
not anticipated that his claim would create exposure to his UM coverage until about
October 2013. He said he had hoped in May 2013 that his treatment would conclude
soon, but his pain persisted and worsened. He contacted counsel after he realized his
injuries were more serious than expected and his medical bills began to increase. At
his deposition given a few weeks after he signed the affidavit, he reaffirmed that he
initially did not think his injuries were serious enough to warrant notifying
3
Progressive of the accident. Bishop acknowledged in his deposition that he had never
read his policy with Progressive and was not aware that it required him to notify
Progressive of any motor vehicle accident over which he sought coverage.
After Bishop filed a lawsuit over the accident against the other driver,
Progressive filed an answer in its own name, seeking dismissal of any claims against
it and making a cross-claim against the defendant.1 Progressive later moved for
summary judgment on the ground that Bishop failed to report the accident promptly
to the insurance company. The trial court denied the motion after a hearing, saying
Bishop’s declaration that he was initially unaware of the severity of his injuries and
evidence that Bishop gave notice to Progressive soon after seeking legal
representation made the case one for a jury. The trial court granted a certificate of
immediate review, and we granted Progressive’s application for interlocutory appeal.
1. Progressive argues that the trial court failed to consider that the notice
provision found in Bishop’s policy is a condition precedent to coverage. When
possible, we construe insurance policies to provide coverage, so as to advance the
benefits intended to be accomplished by such policies. See Plantation Pipe Line Co.
1
Although Bishop’s complaint is not included in the record on appeal, it does
not appear that Bishop sued Progressive directly.
4
v. Stonewall Ins. Co., 335 Ga. App. 302, 310 (2) (780 SE2d 501) (2015). However,
“a forfeiture of insurance coverage may result when an insured fails to satisfy a
condition precedent to coverage under the contract.” Id. In particular, an insured that
cannot demonstrate justification for failure to comply with a notice provision that is
expressly made a condition precedent to coverage is not entitled to either a defense
or coverage, even if the insurer does not show actual harm from a delay in notice. Id.
at 310-11 (2). “[C]onversely, where a notice provision is not expressly made a
condition precedent to coverage of the insurance contract, an insured’s failure to
comply with the notice provision will result in a forfeiture of coverage only if the
insurer demonstrates that it was prejudiced by the insured’s failure.” Id. at 311 (2)
(emphasis in original).
“[T]he general rule is that a notice provision in an insurance policy is only
considered a condition precedent to coverage if it expressly states that a failure to
provide such notice will result in a forfeiture of the insured’s rights or uses language
which otherwise clearly expresses the intention that the notice provision be treated
as a condition precedent.” Id. at 312 (2) (citation and punctuation omitted). Policy
language that merely requires the insured to give notice of a particular event does not
by itself create a condition precedent. Id. A general provision that no action will lie
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against the insurer unless the insured has fully complied with the terms of the policy
will suffice to create a condition precedent. See Lankford v. State Farm Mut. Auto.
Ins. Co., 307 Ga. App. 12, 14 (703 SE2d 436) (2010) (noting policies at issue
provided that “[t]here is no right of action against” the insurance company “until all
the terms of this policy have been met”); see also Plantation Pipe Line Co., 335 Ga.
App. at 312 (2) n.14 (citing cases).
Bishop’s policy contained a general provision requiring his full compliance
with the policy’s terms: “We may not be sued unless there is full compliance with all
the terms of this policy.” Progressive argues that the notice provision in Bishop’s
policy creates a condition precedent to coverage, particularly in the light of that
general requirement that the insured must comply fully with the policy’s terms before
the insurer may be sued. We agree, as the policy predicated coverage on compliance
with all the terms of the policy, which of course includes the notice provision. See
Barclay v. Stephenson, Nos. A16A0318 - A16A0321, 2016 WL 3208744, at *6, 2016
Ga. App. LEXIS 336, at *15-16 (3) (b) (Ga. Ct. App. June 9, 2016) (notice provision
precondition to coverage, given provision that “[n]o action shall be brought against”
the insurer “unless an insured has complied with the policy provisions”); Lankford,
307 Ga. App. at 14 (notice provision precondition to coverage in the light of
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provision that “[t]here is no right of action against” insurer “until all the terms of this
policy have been met”).2 In order to obtain coverage under his policy, therefore,
Bishop must show that he complied with the notice provision or demonstrate
justification for failing to do so. See Plantation Pipe Line Co., 335 Ga. App. at 310-
11 (2).
2. Progressive argues that the nearly 11-month delay in Bishop giving notice
of the accident was unreasonable as a matter of law and therefore foreclosed
coverage. We disagree. “Under Georgia law, whether an insured gave an insurer
timely notice of an event or occurrence under a policy generally is a question for the
factfinder.” Plantation Pipe Line Co., 335 Ga. App. at 306 (1). An insured may be
able to present justification for delay in giving notice, and whether that justification
was sufficient is generally a fact-based inquiry for a jury. Id. “Nevertheless, the facts
and circumstances of a particular case may render an insured’s delay in giving notice
2
In so concluding, we do not mean to suggest, as Progressive does, that the
trial court erred. Although Progressive complains that the trial court failed to
recognize that the notice provision was a condition precedent to coverage, the trial
court’s ruling did not turn on any failure by the insurance company to show prejudice.
The trial court therefore appears to have determined implicitly that the notice
provision is a condition precedent.
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of an occurrence to his insurer unjustified and unreasonable as a matter of law.” Id.
(citation omitted).
In cases in which a policy’s notice provision gives no specific time frame, there
is no bright-line rule on how much delay is too much. We have held that a delay as
long as or longer than that involved in this case presents a question for a jury. See
Rucker v. Allstate Ins. Co., 194 Ga. App. 407, 407-08 (390 SE2d 642) (1990) (delay
of nearly one year; construing provision that said insurer must be notified
“promptly”)3; Sands v. Grain Dealers Mut. Ins. Co., 154 Ga. App. 720, 721 (270
SE2d 8) (1980) (11-month delay; construing provision that required notice be given
3
Progressive correctly notes that, soon after deciding Rucker, we said in a
whole court decision that the Rucker court never should have considered the defense
of lack of notice, because that case involved coverage for a claim by a third party, and
lack of notice of an accident is not a defense available to an insurer in such a
scenario. See Ginn v. State Farm Mut. Auto. Ins. Co., 196 Ga. App. 640, 642 (396
SE2d 582) (1990) (whole court); see also Cotton States Mut. Ins. Co. v. Phillips, 256
Ga. App. 70, 71 (567 SE2d 719) (2002) (lack of notice exclusion enforceable against
a third party injured by insured when the injured third party has access to other
insurance funds). But we have never said that Rucker’s analysis of the issue that it did
address was error. Moreover, our reliance on Rucker is not to suggest that by itself
that decision dictates the outcome of this case. Rather, the fact-based question
presented here calls upon us to consider our prior decisions as data points on a scatter
plot, and we find Rucker to be a helpful such data point.
8
“as soon as practicable”)4; Norfolk & Dedham Mut. Fire Ins. Co. v. Cumbaa, 128 Ga.
App. 196, 199 (2) (196 SE2d 167) (1973) (19-month delay; applying “as soon as
practicable” provision). We also have held that a four-month delay was unreasonable
as a matter of law. See Bituminous Cas. Corp. v. J. B. Forrest & Sons, Inc., 132 Ga.
App. 714, 716-18 (1) (209 SE2d 6 (1974) (reversing trial judge’s rejection of
insurance company’s bid for declaratory judgment based on provision that required
notice be given “as soon as practicable”).
Here, Bishop has presented evidence that he did not give notice to Progressive
sooner because he did not realize the extent of his injuries and thought the other
driver’s insurance would be sufficient to cover them. As in Rucker, where we found
that the insured’s ignorance of the extent of injuries to a child hit while riding a
bicycle could excuse a delay in notice, see Rucker, 194 Ga. App. at 408, a jury might
well find this to be a sufficient justification. Although the record is unclear on this
4
It seems appropriate to rely on our precedent construing provisions that
require notice be given “as soon as practicable” or similar language in this case
involving a provision requiring that notice be given “promptly.” The word “promptly”
essentially means to do something as soon as possible. See Webster’s New Collegiate
Dictionary 942 (9th ed. 1991) (defining “prompt” as “being ready and quick to act as
occasion demands” and “performed readily or immediately”); see also Certified
Indem. Co. v. Thun, 165 Colo. 354, 359 (439 P2d 28) (1968) (equating policies that
require notice to be given “as soon as practicable” or use terms such as “immediate,”
“prompt,” “forthwith,” or “within a reasonable time”).
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point, the evidence suggests that Bishop may have had some hidden injury as a result
of the car accident, the extent of which was not immediately apparent.
This is unlike Manzi v. Cotton States Mut. Ins. Co., 243 Ga. App. 277 (531
SE2d 164) (2000) (physical precedent only), in which we found that a provision that
requires notice be given within 60 days is triggered at the time of an accident,
irrespective of when an insured seeking uninsured motorist coverage discovers that
a tortfeasor is uninsured. For one thing, Bishop’s policy did not contain a time certain
for giving notice, merely requiring him to report accidents “promptly.” Moreover, the
existence of another driver’s insurance generally may be determined quickly with
some degree of diligence. The extent of a plaintiff’s injuries — which may determine
whether other available insurance is adequate — may take considerable time to reveal
itself.
Our decision in Lankford also is distinguishable. In that case, the plaintiff’s
employer, whose car the plaintiff had been driving at the time of the accident, sought
and received monies under the other driver’s liability policy. Lankford, 307 Ga. App.
at 12-13. The plaintiff, however, did not give his insurer written notice that he was
seeking uninsured motorist coverage until he filed a lawsuit — nearly two years after
the accident, and more than a year after he underwent surgery in connection with the
10
injuries he received in the accident and his attorney requested and received disclosure
of the other driver’s policy limits. Id. at 13. We concluded that the plaintiff did not
provide notice “as soon as reasonably possible” as required by his policy, saying the
required notice was to be given as soon as possible after the accident, not as soon as
possible after the other driver’s coverage was exhausted or the plaintiff became
concerned that his losses might exceed the other driver’s policy limits. Id. at 14.
However, we also relied on case law to the effect that a delay of two years was
unreasonable as a matter of law, acknowledging that the notice requirement in the
plaintiff’s policy “affords some leeway,” just not unlimited leeway. Id. at 15 (citation
and punctuation omitted). Here, the delay was less than 11 months, and Bishop
provided notice more than a year before undergoing surgery for his injuries. We
cannot say that Lankford demands a finding that the delay in Bishop giving notice
was unreasonable as a matter of law.
Progressive argues that Bishop’s initial failure to recognize the severity of his
injuries cannot justify his delay in giving notice because an insured cannot rely on his
own subjective beliefs or conclusions as an excuse. Progressive cites cases with a
variety of factual scenarios for the proposition that Bishop’s justification is not a
valid one. See Allstate Ins. Co. v. Walker, 254 Ga. App. 315, 316-17 (1) (562 SE2d
11
267) (2002) (ignorance of policy does not justify nearly one-year delay in giving
notice); Snow v. Atlanta Int’l Ins. Co., 182 Ga. App. 1 (354 SE2d 644) (1987)
(ignorance of policy does not excuse 10-month delay in giving notice); Int’l
Indemnity Co. v. Smith, 178 Ga. App. 4, 5 (1) (342 SE2d 4) (1986) (52-month delay
unreasonable as a matter of law and not justified by insured’s illiteracy); Bituminous
Cas. Co., 132 Ga. App. at 717 (1) (insured did not attempt to show anything that
prevented it from giving notice sooner than four months from time of accident);
Edwards v. Fidelity & Cas. Co. of New York, 129 Ga. App. 306, 307 (1) (199 SE2d
570) (1973) (five-month delay in giving notice of accident involving third party’s fall
from fire escape connected to building owned by insured not justified by insured’s
arguments that report of accident was hearsay); Buffalo Ins. Co. v. Star Photo
Finishing Co., 120 Ga. App. 697, 706-07 (3) (172 SE2d 159) (1969) (that plaintiff
misplaced the policy did not excuse it from complying with 60-day proof of loss
requirement). However, none of these factual scenarios is similar to that presented by
this case and thus none counsels us to find as a matter of law that Bishop’s delay of
notice was unreasonable. As discussed above, Rucker, in which we said a lack of
evidence that the insured was aware of the extent of injuries to a child hit by a car
justified a one-year delay in giving notice to the insurance company, is more
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analogous. See Rucker, 194 Ga. App. at 408. Bishop arguably offers an even better
excuse, given that he presented affirmative testimony that he thought his treatment
would conclude much sooner, whereas a collision between a car and a child on a bike
would normally prompt a driver to exercise some diligence in discerning the level of
the injury to the child. Lankford, in which we said that a two-year delay could not be
justified by a delay in the insured’s awareness that he might need to utilize uninsured
motorist coverage, also presents analogous facts. Lankford, 307 Ga. App. at 16. But,
again, the significant difference in the length of delay involved distinguishes that case
from this one.
Finally, Progressive argues that Bishop’s explanation that he initially did not
recognize the extent of his injuries cannot justify the delay in giving notice because
he later contradicted it. In his affidavit, Bishop said that he initially had not
anticipated that his claim would create exposure to his uninsured motorist coverage
but contacted counsel after he realized that his injuries were more serious. At his
deposition a few weeks later, he reaffirmed that explanation but also said that he had
never read his policy and was not aware of its notice requirement. Progressive
correctly points out that, when a party acts as his own witness, a trial judge
considering a motion for summary judgment is not to consider any of that witness’
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testimony that is self-contradictory, unless a reasonable explanation for the
contradiction is given. See Thompson v. Ezor, 272 Ga. 849, 851 (1) (536 SE2d 749)
(2000). However, the testimony cited by Progressive is not self-contradictory. Bishop
acknowledged not reading the policy and not being aware of the prompt notice
requirement. But Bishop did not testify that his failure to provide notice was due to
a belief that the policy did not require notice. And the record contains no undisputed
facts establishing such a belief. Instead, Bishop testified that he did not provide such
notice sooner because he initially underappreciated the extent of his loss. This
testimony does not conflict with his lack of knowledge of the policy’s precise terms.
Therefore, the trial court did not err in considering Bishop’s explanation that he
initially was unaware of the extent of his injuries.5
5
In a motion for reconsideration, Progressive also argues that we disregarded
precedent establishing that a party is charged with knowing the contents of his
contract, contending that because Bishop did not read his policy, his failure to notify
Progressive was not justifiable as a matter of law. These arguments are somewhat in
tension, however. It is true that one who signs a contract, including an insurance
contract, is presumed to know its contents, and the law requires more than mere
ignorance of the contract to avoid its terms. Int’l Indemnity Co., 178 Ga. App. at 5
(1). However, the logical corollary of this proposition is that an insured’s knowledge
of the policy terms or lack thereof is irrelevant, not dispositive. Int’l Indemnity Co.,
cited by Progressive, is illustrative. In that case, we held that an insured’s illiteracy
— “in and of itself” — did not excuse his failure to notify his insurer of an injury “as
soon as practicable,” as required by his policy. Id. at 5 (1). Rather than concluding
that the insured’s ignorance of the policy terms itself mandated a conclusion that the
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We recognize that our jurisprudence on the question of what constitutes
sufficiently prompt notice under an insurance contract like Bishop’s is not easily
harmonized. Indeed, some of our prior decisions are difficult to reconcile with each
other, as is not uncommon in an area that calls for a fact-specific inquiry. And we are
mindful of the critical importance of enforcing contracts as written; a legal system
that does not undermines civilization itself.
But Progressive’s problem here is a direct result of the language it chose to use.
Whether an insured has provided notice “promptly” is an inherently fact-specific
question of the kind we leave juries to answer. If insurance companies wish greater
certainty, they might consider using different, less flexible contractual language that
establishes precise deadlines, such as the 60-day provision in Manzi. In the absence
of such contractual precision, the fundamental starting point for our analysis is that
generally a jury is to decide whether an insured has presented adequate justification
to render delayed notice nevertheless sufficiently “prompt.” See Plantation Pipe Line
Co., 335 Ga. App. at 306 (1). Although the facts and circumstances of an individual
delay in giving notice was unjustified, we went on to analyze separately (albeit
briefly) whether the 52-month delay was unreasonable as a matter of law, concluding
that the answer was yes given that the long delay was unexcused. Id. Progressive’s
argument that Bishop’s failure to read the policy means that the insurance company
wins the case is not supported by law.
15
case may sometimes make such a delay unjustified as a matter of law, see id., we
cannot say on this record that this is such a case.
Judgment affirmed. Phipps, P. J., and Dillard, J., concur.
16