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FARMERS NATIONAL BANK EPHRATA v. EMPLOYERS LIABILITY ASSURANCE CORPORATION (03/17/64)

March 17, 1964

FARMERS NATIONAL BANK OF EPHRATA, APPELLANT,
v.
EMPLOYERS LIABILITY ASSURANCE CORPORATION, LTD.



Appeal, No. 234, Jan. T., 1963, from judgment of Court of Common Pleas of Lancaster County, June T., 1961, No. 4, in case of The Farmers National Bank of Ephrata, administrator of estate of James S. Root, Jr., deceased, v. Employers Liability Assurance Corporation, Ltd. Judgment affirmed; reargument refused April 24, 1964.

COUNSEL

Daniel H. Shertzer, for appellant.

John Milton Ranck, with him Charles Foltz Herr, and Appel, Ranck, Herr & Appel, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: O'brien

[ 414 Pa. Page 92]

OPINION BY MR. JUSTICE O'BRIEN

The plaintiff-appellant filed an action of assumpsit against the defendant-appellee, Employers Liability Assurance Corporation, Ltd. In April of 1961, the plaintiff recovered a judgment against the Myerstown Bank and Trust Company of Myerstown, Executor of the Last Will and Testament of Willis E. Bernhardt. The amount of the judgment was $14,600, arising out of the death, on January 6, 1958, of appellant's decedent, James S. Root, Jr., caused by the negligence of the decedent, Willis E. Bernhardt. Root, immediately prior to his death, was employed by one Barnett, a contractor for whom Bernhardt was a subcontractor. Barnett and Bernhardt had contracted that Bernhardt was to provide liability indemnity insurance to inure to the benefit of Barnett. The judgment has not been paid and the plaintiff-appellant has brought the instant action to recover the amount of the judgment.

[ 414 Pa. Page 93]

At the time of the accident which resulted in the death of James S. Root, Jr., Willis E. Bernhardt was insured by a liability insurance policy issued by the defendant-appellee, Employers Liability Assurance Corporation, Ltd. At the conclusion of the trial, the trial judge directed a verdict for the appellee. Appellant's motions for new trial and judgment n.o.v. were refused and judgment entered on the directed verdict. This appeal followed.

The date of the accident was January 6, 1958. On September 10, 1958, Bernhardt gave notice to the insurance company that an accident had occurred. This notice was given eight months and four days after the occurrence of the accident. Appellees denied coverage for want of notice as required by the policy.

The policy provided, inter alia, in Paragraph 9, under the title "Notice of Accident", that notice and details of the accident must be given to the insurance carrier "as soon as practicable". It is our opinion that notice should have been given within a time period of less than eight months. We interpret "as soon as practicable" to mean within a reasonable time depending upon the circumstances. Hachmeister, Inc. v. Employers Mutual Liability Co. of Wisconsin, 403 Pa. 430, 169 A.2d 769 (1961), and cases cited therein. Eight months without any unusual circumstance is not a reasonable time to give notice. This condition in the policy was designed to give the insurance carrier an opportunity to make a reasonable investigation of the accident.

The appellant admits that notice was not given until eight months after the accident; however, it contends that the appellee waived its right of notice due to the conduct of one Brown, a claims adjuster in the employ of the appellee. The evidence on this point is that in the spring of 1955, an ...


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