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BRAKEMAN v. POTOMAC INSURANCE COMPANY (09/22/75)

decided: September 22, 1975.

BRAKEMAN, APPELLANT,
v.
THE POTOMAC INSURANCE COMPANY



Appeal from judgment of Court of Common Pleas of Crawford County, Feb. T., 1973, No. 109, in case of Allan E. Brakeman v. The Potomac Insurance Company.

COUNSEL

Paul D. Shafer, Jr., with him Mark D. Prather, and Thomas, Shafer, Walker, Dornhaffer & Swick, and Prather & Prather, for appellant.

James D. Cullen, with him John M. Wolford, and MacDonald, Illig, Jones & Britton, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Concurring Opinion by Cercone, J. Hoffman and Spaeth, JJ., join in this concurring opinion.

Author: Van Der Voort

[ 236 Pa. Super. Page 321]

On March 3, 1970, the plaintiff-appellant, Allan E. Brakeman was involved in a motor vehicle accident with one David F. Baker, in Meadville, Pennsylvania. Baker, at the time a 17 year old, was insured by The Potomac Insurance Company, the defendant-appellee. As a result of the accident, Brakeman suffered severe injuries which resulted in hospitalization, loss of income and permanent disability; his out-of-pocket expenses were $6,545.50. Although the accident occurred in early March, the appellee

[ 236 Pa. Super. Page 322]

    insurance company did not receive written notice of the accident until October 6, 1970.*fn1

Taking the position that the notice it received from its insured was unduly late, appellee refused to defend the claim against Baker. The appellant filed suit against Baker on February 24, 1971 and on January 10, 1972, a verdict in the sum of Ten Thousand ($10,000.00) Dollars, the exact amount of the Baker's insurance coverage, was directed by the lower court, by agreement of the parties, and without actual trial. As noted earlier, the appellee did not participate in that action.

The instant action arose when appellant Brakeman brought suit directly against appellee to recover the amount of his verdict against the insured. A jury trial was held; the jury awarded appellant a general verdict of Ten Thousand ($10,000.00) Dollars and gave the following answers to specific interrogatories:

1. The first written notice to appellee was given October 6, 1970.

2. No oral (telephonic) notice had been given prior to that written notice.

3. There were sufficient extenuating circumstances to postpone the giving of the accident notice until October 6 or 7, 1970.*fn2

Upon motion of the appellee however, the lower court granted judgment non obstante veredicto. The lower court's action, supported by a well written opinion, essentially was made in reliance upon the circumstances of the late notice to the insurer, some seven months after

[ 236 Pa. Super. Page 323]

    the date of the accident. The lower court noted appellate cases in our Commonwealth which have held that if an insured gives notice of an accident to his insurance company as late as seven months after an accident, he has failed to comply with a "reasonable notice" clause in his policy.*fn3 See Hachmeister, Inc. v. Employers Mutual Liability Insurance Company of Wisconsin, 403 Pa. 430, 169 A.2d 769 (1961); Edelson v. American Employers Insurance Company of Boston, Mass., 92 Pa. Superior Ct. 90 (1927).

On this appeal, appellant argues, inter alia, that the presumption of prejudice which exists in Pennsylvania, concerning late notice to an insurance company by the insured, should be altered or eliminated. He maintains that the present rule is "harsh" and suggests the substitution of a rule requiring the insurance company to show some prejudice it suffered through late notice before it is excused from performance on the insurance contract. While we do not adopt completely the appellant's suggested course of change, our review and comparison of case developments in our sister states concerning this ...


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