Before McLAUGHLIN, KALODNER and HASTIE, Circuit Judges.
In controversy here is the interpretation of a clause in an automobile liability insurance policy which requires as a condition of the insurer's liability that it be given notice of any accident "as soon as practicable". The insurer, Home Indemnity Co., sued for a declaratory judgment of non-liability on the ground that notice of the accident in question was not given soon enough to satisfy the notice requirement of the policy. The district court denied the requested relief, 183 F.Supp. 367, and the insurer has appealed.
The policy in suit was issued to Harry Ware. The accident occurred on July 15, 1958, when Frederick White, the 16 year old stepson of Ware, was driving, without a license, a neighbor's car which he had stolen. The persons injured in the accident were teen-aged friends of the stepson who were his passengers on the joyride. Several months elapsed before any claim was asserted against young White by or on behalf of the injured boys. On October 10, 1958, the insurer was first notified of the accident. This was nearly three months after the event but before any demand had been made upon young White.
Ware's policy, encaptioned "Family Combination Automobile Policy", covered as the "named insured" both Ware and his wife. In the case of a "non-owned automobile", coverage extended to "any relative, but only with respect to a private passenger automobile or trailer not regularly furnished for the use of such relatives". A "relative" was defined as any "relative of the named insured who is a resident of the same household". The policy required that notice of any accident be given to the insurer "as soon as practicable".
The evidence shows that it did not occur to Ware that the circumstances of this accident might be covered by his policy until an investigator for another insurance company, against which the injured boys had made a claim under their own policy, learned on inquiry that Ware also was insured and suggested that notice be given to Ware's insurer.
The policy in suit was a contract made in Delaware and the Wares live in that state. The parties properly concede that Delaware law controls the interpretation of this insurance contract.
Interpreting the policy, the court below ruled that a "requirement to give notice as soon as practicable means within a reasonable time under the circumstances." The court then examined the facts and concluded that in all the circumstances notice was not unreasonably delayed. The court summarized its analysis of the evidence and its conclusion as to reasonableness in this way:
"I accept without hesitation Mr. Ware's testimony that it just never occurred to him that his stepson might be covered. And why would it? The boy had no license. The car was not the family car but the car of a neighbor. On top of that, it was stolen. The mind of the average man would, I believe, reject the thought that the unlicensed stealer of a car involved in a collision could possibly hope to be protected by insurance. Add to this the fact that no suit against Fred was pending through the 85 day period (nor had suit been threatened) and there are convincing reasons for the ordinary reasonable person's failing to give much thought to the possibility of coverage." [183 F.Supp. 369.]
We have found no authoritative Delaware ruling, and the parties and the court below have cited none, on the legal interpretation of a requirement of "notice as soon as practicable" in an insurance contract. There is a passing comment on the problem in Wilmington Amusement Co. v. Pacific Fire Ins. Co., 1941, 41 Del. 294, 297, 21 A.2d 194, 195, but we do not find it helpful. It is arguable that the standard of practicability, as stated in such notice of loss provisions, is not "as broad or flexible as the term frequently found either in contracts or the law generally fixing the standard of time as 'reasonable'". See Brown, Circuit Judge, dissenting in Navigazione Alta Italia v. Columbia Cas. Co., 5 Cir., 1958, 256 F.2d 26, 31; cf. Unverzagt v. Prestera, 1940, 339 Pa. 141, 144, 13 A.2d 46, 47. But in the great majority of the cases the courts have construed notice provisions of the type here in suit as requiring no more than that notice be given within a reasonable time in view of all facts and circumstances of the given case. Young v. Travelers Ins. Co., 5 Cir., 1941, 119 F.2d 877; Williams v. Cass-Crow Wing Co-op, Ass'n, 1947, 224 Minn. 275, 28 N.W.2d 646; Miller v. Zurich General Accident and Liability Ins. Co., 1955, 36 N.J.Super. 288, 115 A.2d 597; 18 A.L.R.2d 443, 462. We find no reason to believe that the Delaware courts would hold otherwise. Accordingly, we approve the district court's adoption of the generally accepted rule as Delaware law.
In applying this general test of reasonable behavior courts have sometimes imposed a limiting rule that failure to advert to relevant terms of a policy which plainly extend coverage to the occurrence in suit is, as a matter of law, unreasonable and cannot excuse delay in giving notice. Zurich General Accident & Liability Ins. Co. v. Harbil Restaurant Inc., 1959, 7 A.D.2d 433, 184 N.Y.S.2d 51; Acosta v. Roach, Sup.Ct.1958, 12 Misc.2d 494, 172 N.Y.S.2d 116; State Farm Mut. Auto Ins. Co. v. Cassinelli, 1950, 67 Nev. 227, 216 P.2d 606, 18 A.L.R.2d 431. Invoking this rule appellant contends that this is a case where coverage is plain on the face of the policy.
The relevant provision of the present policy states that "with respect to a non-owned automobile" the policy covers "any relative [of the named insured], but only with respect to a private passenger automobile or trailer not regularly furnished for the use of such relatives". We think this language falls far short of making it obvious to the ordinary reader that a relative of the named insured is covered while driving a stolen automobile.
This uncertainty was strikingly demonstrated only a few months ago when the Court of Appeals of New York had to decide this very question of interpretation with reference to identical language in an insurance policy. The judges of that able and distinguished court divided four to three, the majority holding that a relative driving a stolen car was covered. Sperling v. Great American Indemnity Co., 1960, 7 N.Y.2d 442, 199 N.Y.S.2d 465, 166 N.E.2d 482. However, in a carefully reasoned opinion, the dissenters derived a contrary meaning from the language of the policy. In their view the expression "not regularly furnished" for the use of a relative means "occasionally furnished" for his use, and no more than that. Under this analysis a stolen car, which is not "furnished" at all, is excluded entirely from the coverage of the policy.
We need not decide whether the more persuasive argument is made by the majority or the minority in the Sperling case. It is enough that both make sense and thus demonstrate that it is not obvious even to a group of seven experienced judges ...