Montana Supreme Court: 38-Month Delay in Notification of Claim is Late Notice

Posted on March 12, 2008 by Diane Polscer

The Montana Supreme Court this week ruled that a policy issued to a corporation provided no coverage to an officer of the corporation and that the officer’s 38-month delay in notifying the insurer was late notice. The case, Lee v. Great Divide Insurance Co., involved an automobile accident between an uninsured driver and Lee.  Lee was driving a Ford pickup insured by American States Insurance Company under a corporate policy issued to his corporation. Great Divide insured two trailers and a Ford pickup pursuant to a separate commercial policy issued to the corporation specifically naming Lee as an insured that was later amended by endorsement removing Lee. Lee filed suit against the driver of the other vehicle and for UM benefits from American States in May 2002 ultimately settling with American States and obtaining a $1 million default against the uninsured driver in April 2005. Lee did not notify Great Divide concerning the original lawsuit, the default or the settlement with American States then filed suit against Great Divide seeking to recover the amount of the default.

In affirming the trial court’s dismissal of the case, the Montana Supreme Court first rejected Lee’s argument that the Great Divide policy was ambiguous as to its general reference to “you” as used in the section of “Who is an insured” and thus officers of the named insured corporate entity should be considered insureds. In rejecting this argument the court noted that the definition of “you” in the policy was the named insured corporation and the policy itself was identified as a “corporate policy.”

The Court also found that the policy expressly required Lee to “promptly send [Great Divide] copies of the legal papers if a 'suit' is brought.’” The court found that in addition to the large amount of time it took for Lee to notify Great Divide of the cases, he omitted the “most significant information of this claim and suit” from his notice which was a material breach of his policy obligations. This information included his failure to provide Great Divide a copy of the initial Complaint alleging UM coverage against American States as well as a copy of his Second Amended Complaint until 2 ½ years after filing his original complaint. Moreover, Lee’s notice to Great Divide failed to disclose that he had obtained a default judgment against the uninsured driver and he would be seeking coverage. Accordingly, the court found the late notice was sufficient to deny coverage to Lee.

In a strongly worded dissent, Justice Cotter raised several points including the fact that Lee had moved for summary judgment at the trial court level and that the court, in addition to denying his motion, sua sponte granted Great Divide summary judgment on coverage issues which, she believed, deprived Lee of his ability to properly raise issues of fact precluding summary judgment.

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Policyholder Struck By Bicyclist after Parking Car Not Entitled to PIP Benefits

Posted on January 29, 2008 by Diane Polscer

Reversing a trial court’s grant of summary judgment for the plaintiff policyholder, the Oregon Court of Appeals found that a plaintiff’s injuries from being struck by a bicyclist as she crossed the street did not trigger PIP coverage under her auto insurance policy. In this case, the plaintiff had parked her car across the street from her residence and took several work related items from her back seat (although leaving her purse) and locked the car. She then crossed the street, descended a set of stairs to her home and opened the front door. Putting down the load she had taken from the car, she put a leash on her dog and walked with her dog across the street back to her car. She then unlocked the car doors and moved some of her personal times from the front seat to the hatchback of her car. She then closed and locked her car again and began to cross the street back to her house. When she was approximately three-quarters of the way across the road, she was struck by a cyclist riding down the hill and was injured.

After the accident, the plaintiff sought to recover her medical expenses and lost income and filed a claim for PIP benefits under her automobile policy with State Farm. State Farm denied the claim on the basis that the accident was not the result of her “use” or “occupancy” of her car and, thus, fell outside the coverage prescribed under the terms of her policy and the Oregon PIP statute. On summary judgment motions of both parties, the trial court found that the facts “show that the injury resulted form the use of the vehicle [and was] a consequence resulting from plaintiff’s use of the vehicle to transport and store items.” The trial court found that it was immaterial that she did not intend to return to her car again after locking it and that she might have taken the dog for a walk after crossing the street had she not been injured and thus, her injuries resulted from her “use” of the car.

The Court of Appeals reversed finding that a causal nexus between the use of the plaintiff’s car and the injury by the cyclist was lacking. The court found that there must be a “consequential nexus between the use and injurious event” for recovery to occur. Accordingly, in this case, there was no nexus as the injured cyclist “was going to be there regardless of plaintiff’s use of the car –and, other than in a pure “but for” sense, nothing about plaintiff’s use of the car enhanced the likelihood that she would suffer an injury because of being struck by a cyclist.”

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Maine Court Holds That Emotional Distress Claims Trigger Additional BI Limits

Posted on December 23, 2007 by Mike Aylward

Thank goodness that Maine is a relatively small state, as its Law Court seems to have a boundless appetite for finding insurance coverage.

In the latest defeat for insurers, the court ruled in Ryder v. USAA General Indemnity Co., 2007 ME 146 (Me. December 6, 2007) that an auto insurer must pay an additional $50,000 "per person" UIM limit for the emotional distress that various family members suffered when the insured was struck and killed by another car as she got out of the insured vehicle.   The trial court had ruled that USAA owed only a single $50,000 limit, as the emotional distress claims were not a separate "bodily injury."  On appeal, however, the Law Court concluded that the USAA definition of "bodily injury" ("bodily harm, sickness, disease or death") was ambiguous.  The court held that the general rule that an adjective modified not only the noun next to it but all other nouns in the same sequence did not apply here, since there is no such thing as a "bodily death" (the justices plainly had no familiarity with flying on U.S.. Airways).   As a result, the court ruled that emotional distress is a "sickness" or "disease" and required the insurer to pay three additional limits for the by-standards claims.

The court's ruling highlights the significance of small variations in policy language.  The court made much of the fact that the USAA policy was different from the conventional ISO wordings (ie.  "bodily injury, sickness or disease, including death resulting at any time therefrom).  Also, USAA's position in this case was not aided by the fact that the tortfeasor's policy with Northern Progressive contained an unusual definition of "bodily injury" that explicitly made by-standers claims subject to the limit of coverage available for bodily injury claims.

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