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ALLAN E. BRAKEMAN v. POTOMAC INSURANCE COMPANY (03/16/77)

decided: March 16, 1977.

ALLAN E. BRAKEMAN, APPELLEE,
v.
THE POTOMAC INSURANCE COMPANY, APPELLANT



COUNSEL

Roger H. Taft, John M. Wolford, MacDonald, Illig, Jones & Britton, Erie, for appellant.

Paul D. Shafer, Jr., Thomas, Shafer, Walker, Dornhaffer & Swick, Meadville, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Jones, former C. J., did not participate in the decision of this case. Nix, J., did not participate in the consideration or decision of this case. Roberts, J., filed a concurring and dissenting opinion. Pomeroy, J., filed a dissenting opinion.

Author: Eagen

[ 472 Pa. Page 68]

OPINION OF THE COURT

On March 3, 1970, the appellee, Allan E. Brakeman, was involved in an accident when his motorcycle collided with an automobile operated by David Baker in Meadville Pennsylvania. The Baker automobile was owned by Edwin Baker, David's father. David, a seventeen-year-old licensed operator, was insured under an automobile liability insurance policy maintained by the elder Baker with the appellant, The Potomac Insurance Company [hereinafter Potomac]. As a result of the accident, Brakeman allegedly suffered permanent disability and loss of income. Potomac did not receive written notice of the accident until October 6, 1970, after the Bakers had received a letter from Brakeman's attorney stating that suit against David Baker was being instituted. Potomac refused to defend against Brakeman's suit or accept any liability flowing from the accident, stating that Baker breached the insurance contract by failing to provide Potomac with timely notice of the accident. Brakeman filed suit against Baker on February 24, 1971, in the Court of Common Pleas of Crawford County. Baker retained his own counsel and on January 10, 1972, a verdict

[ 472 Pa. Page 69]

    in the sum of ten thousand dollars ($10,000.00), the exact amount of Baker's insurance coverage, was directed by the Court in favor of Brakeman and against Baker by agreement of the parties and without actual trial.

Brakeman then brought the instant action against Potomac in the Court of Common Pleas of Crawford County to recover the amount of the consent judgment. A jury returned a general verdict in favor of Brakeman for ten thousand dollars ($10,000.00). The court, however, subsequently granted Potomac's motion for judgment non obstante veredicto on the ground that Baker's written notice to Potomac, some seven months after the accident, was unreasonable and in violation of the clause in the insurance policy requiring notice of the accident "as soon as practicable."

Brakeman appealed to the Superior Court of Pennsylvania which reversed the judgment entered in the trial court in favor of Potomac and remanded the record with directions to proceed with a new trial. The Superior Court ruled that a delayed notice of an accident will not release the insurer from liability under the policy, even in the absence of extenuating circumstances, if the claimant can show that the insurer was not in fact prejudiced thereby. Brakeman v. Potomac Insurance Co., 236 Pa. Super. 320, 344 A.2d 555 (1975).*fn1 We granted allocatur.

The insurance policy in the instant case contained the following provisions:

[ 472 Pa. Page 70]

In the event of an accident, occurrence or loss, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the Page 70} insured to the company or any of its authorized agents as soon as practicable.

"No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all of the terms of this policy, nor until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company." [Emphasis added.]

Our past decisions clearly establish the validity of a provision in an insurance policy requiring written notice of accident to be given "as soon as practicable" and where an insurance policy has contained such a clause, we have said that the duty to give the notice as stipulated is a condition precedent, and its breach releases the insurance company from the obligations imposed by the policy, regardless of whether the company suffered prejudice thereby. Meierdierck v. Miller, 394 Pa. 484, 147 A.2d 406 (1959); Jeannette Glass Co. v. Indemnity Insurance Co. of North America, 370 Pa. 409, 88 A.2d 407 (1952); Unverzagt v. Prestera, 339 Pa. 141, 13 A.2d 46 (1940); Ross v. Mayflower Drug Stores, Inc., 338 Pa. 211, 12 A.2d 569 (1940). We have interpreted "as soon as practicable" to mean within a reasonable time depending on the facts and circumstances of each case, Farmers National Bank v. Employers Liability Assurance Corp., 414 Pa. 91, 199 A.2d 272 (1964); Jeannette Glass Co. v. Indemnity Insurance Co. of North America, supra; Unverzagt v. Prestera, supra, and the cases indicate that extenuating circumstances may excuse a delay in notification provided there has not been a lack of due diligence.*fn2

[ 472 Pa. Page 71]

    demonstrating prejudice. Some courts place the burden on the claimant to establish an absence of prejudice to the insurer in order to recover on the policy despite late notice,*fn3 while others require the insurance company to show that it was prejudiced by the tardiness of the notice in order to escape liability.*fn4 We think the preferable rule is that which requires the insurance company to prove not only that the notice provision was breached, but also that it suffered prejudice as a consequence.

The rationale underlying the strict contractual approach reflected in our past decisions is that courts should not presume to interfere with the freedom of private contracts and redraft insurance policy provisions where the intent of the parties is expressed by clear and unambiguous language. We are of the opinion, however, that this argument, based on the view that insurance policies are private contracts in the traditional sense, is no longer persuasive. Such a position fails to recognize the true nature of the relationship between insurance companies and their insureds. An insurance contract is not a negotiated agreement; rather its conditions are by and large dictated by the insurance company to the insured. The only aspect of the contract over which the insured can "bargain" is the monetary amount of coverage. And, as we have recognized, notice of accident provisions, such as that with which we are concerned instantly,

[ 472 Pa. Page 73]

    are uniformly found in liability insurance policies. Meierdierck v. Miller, supra, 394 Pa. at 486, 147 A.2d at 408. Indeed, a review of the cases indicates that often the policies express the condition in identical language. In Cooper v. Government Employees Insurance Co., 51 N.J. 86, 237 A.2d 870 (1968), the Supreme Court of New Jersey stated:

". . . [W]e have recognized that the terms of an insurance policy are not talked out or bargained for as in the case of contracts generally, that the insured is chargeable with its terms because of a business utility rather than because he read or understood them, and hence an insurance contract should be read to accord with the reasonable expectation of the purchaser so far as its language will permit."

51 N.J. at 93, 237 A.2d at 873.*fn5 Thus, an insured is not able to choose among a variety of insurance policies materially different with respect to notice requirements, and a proper analysis requires this reality be taken into account.*fn6

A strict contractual approach is also inappropriate here because what we are concerned with is a forfeiture. The insurance company in the instant case accepted the premiums paid by the insured for insurance coverage and now seeks to deny that coverage on the ground of

[ 472 Pa. Page 74]

    late notice. As was said in Cooper v. Government Employees Insurance Co., supra:

"[A]lthough the policy may speak of the notice provision in terms of 'condition precedent,' . . . nonetheless what is involved is a forfeiture, for the carrier seeks, on account of a breach of that provision, to deny the insured the very thing paid for. This is not to belittle the need for notice of an accident, but rather to put the subject in perspective. Thus viewed, it becomes unreasonable to read the provision unrealistically or to find that the carrier may forfeit the coverage, even though there is no likelihood that it was prejudiced by the breach. To do so would be unfair to insureds."

51 N.J. at 93-94, 237 A.2d at 873-874.*fn7

We are reluctant, therefore, to allow an insurance company to refuse to provide that which it was paid for unless a sound reason exists for doing so.

The purpose of a policy provision requiring notice of an accident or loss to be given within a certain time is to give the insurer an opportunity to acquire, through an adequate investigation, full information about the circumstances of the case, on the basis of which, it can proceed to disposition, either through settlement or defense of the claim. Farmers National Bank v. Employers Liability Assurance Corp., supra; Hachmeister, Inc. v. Employers Mutual Liability Insurance Co., 403 Pa. 430, 169 A.2d 769 (1961); Jeannette Glass Co. v. Indemnity Insurance Co. of North America, supra; Bartels Brewing Co. v. Employers' Indemnity Co., 251 Pa. 63, 95 A. 919 (1915); 8 J. Appleman, Insurance Law and Practice ยง 4732 (1962). Such a requirement protects the insurance company from fraudulent claims, as well as invalid claims made in good faith, by allowing the insurance company to gain early control of the proceedings. Since the insurance company has the advantage of a trained legal

[ 472 Pa. Page 75]

    and investigatory staff, which is unavailable to the average insured, the notice requirement normally operates to benefit the insured as well as the insurance company.

Thus, a reasonable notice clause is designed to protect the insurance company from being placed in a substantially less favorable position than it would have been in had timely notice been provided, e. g., being forced to pay a claim against which it has not had an opportunity to defend effectively. In short, the function of a notice requirement is to protect the insurance company's interests from being prejudiced. Where the insurance company's interests have not been harmed by a late notice, even in the absence of extenuating circumstances to excuse the tardiness, the reason behind the notice condition in the policy is lacking, and it follows neither logic nor fairness to relieve the insurance company of its obligations under the policy in such a situation. As was succinctly stated by Judge (now Justice) Tate in Miller v. Marcantel, 221 So.2d 557 (La.App. 1969):

"The function of the notice requirements is simply to prevent the insurer from being prejudiced, not to provide a technical escape-hatch by which to deny coverage in the absence of prejudice nor to evade the fundamental protective purpose of the insurance contract to assure the insured and the general public that liability claims will be paid up to the policy limits for which premiums were collected. Therefore, unless the insurer is actually prejudiced by the insured's failure to give notice immediately, the insurer cannot defeat its liability under the policy because of the non-prejudicial failure of its insured to give immediate notice of an accident or claim as stipulated by a policy provision."

221 So.2d at 559. We have in the past excused a condition of forfeiture where to give it effect would have been purely arbitrary and without reason, and we are of the opinion ...


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