Insurance lawyers in Grand Prairie, Fort Worth, Dallas, Richardson, Mesquite, Garland, and other places in the Dallas and Fort Worth area need to know and understand this case. It discusses one of the responsibilities of an insured under an insurance policy relating to claims made and notifying the insurance company.
The case opinion was issued by the Fort Worth Court of Appeals in 1969, and is still good law. The style of the case is, National Union Fire Insurance Company et al. v. Joe Bourn, Jr. Here is some relevant information.
The facts are longs and rather detailed. What is relevant is that on October 5, 1965, Bourn was involved as a victim in an assault and resulting injuries. Bourn sued the attackers and won a judgment against them. National Union defended in the resulting lawsuit but refused to pay any damages rendered against their insureds.
The victim / prevailing plaintiff, Bourn, sued National Union for its refusal to pay the claim against the attackers they insured. National Union, even though providing a defense, refused to pay based on multiple reasons. One, that their insured’s refused to cooperate in the claim, two, that there was an exclusion in the policy for intentional acts, and three, that their insureds had violated the insurance policy condition requiring written notice to the insurer as soon as practicable.
The trial court in this case by Bourne against National Union had ruled in favor of Bourne. On appeal, this appeals court reversed the trial court ruling in favor of National Union. Here is part of their reason.
The injury to Bourne, Jr., occurred on October 5, 1965. Oral notice was given to the recording agent, who had issued the policy on November 16. On November 18, written notice was given to the same agent.
Under ‘Basic Conditions,’ of the policy it is provided: Requirements in case of loss or occurrence: ‘When either a loss or occurrence takes place, written notice shall be given by or on behalf of the insured to the Company or any of its authorized agents as soon as practicable.’
The policy also provided that ‘No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with ….’
National Union plead violation of the written notice provision and introduced evidence in support of that policy defense.
No excuse for delay in giving written notice was plead or offered in evidence.
Notice given 44 days after the occurrence giving rise to the claim is, as a matter of law, failure to give written notice ‘as soon as practicable’ where the delay is totally unexplained and without excuse.
This appeals courts said in its ruling, “Since no evidence was offered to excuse the delay, the court erred in rendering judgment against National.”
Case law makes clear that an unexcused delay or delay because of a flimsy excuse entitles the insurance company to judgment as a matter of law since delays of that type violate the ‘soon as practicable’ provision of the policy and notice is deemed as not having been given within a reasonable time.
The court acknowledged that reasonable time depends on the facts and circumstances of each particular case. But where, as in this case, no excuse whatever is given for delay, the matter becomes a question of law.
There were other issues discussed in this case but here is the lesson to be learned or taken from this case. Notify the insurance company immediately and in writing when a claim or potential claim arises. Too often a person delays in making a claim wondering if they should or not and wondering if the claim is covered. Any experienced Insurance Law Attorney will tell you it is much better to be safe than sorry. Don’t delay. Call the company and tell them immediately. You pay them to cover losses and they have the right to know as soon as possible so as to begin their own investigation as to the their liabilities and the extent of their exposure.
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