Forshee v. Employers Mutual Casualty Co.
309 Ga. App. 621
| Ga. Ct. App. | 2011Background
- Forshees own Forshee Chevron in Georgia; incident occurred November 23, 2007 when a woman fell on premises.
- Woman sues Forshees in November 2009 for injuries; Forshees had not notified their insurer, Employers Mutual Casualty Company, of the fall.
- Policy provides commercial general liability coverage for occurrences (accidents) and requires prompt notice of an occurrence that may result in a claim.
- Forshees tender defense to Employers Mutual under reservation but provided no notice prior to service of the lawsuit.
- Trial court granted declaratory judgment in favor of insurer, holding two-year delay in notice was unreasonable.
- Court of Appeals vacates and remands, holding the trial court likely applied an incorrect standard by focusing on injury severity instead of reasonable notice under the circumstances.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What is the proper standard to assess notice reasonableness? | Forshees contend reasonableness is measured without hindsight, considering circumstances at the time. | Employers Mutual argues the severity and knowledge of the injury support a earlier notice; trial court applied correct standard. | Remand to apply correct standard; judgment vacated. |
| Did Forshees' two-year delay in notice bar coverage as a matter of law? | Delay may be reasonable given lack of identity and information at time of incident. | Significant delay plus lack of prompt reporting demonstrates unreasonableness. | Not decided on the merits; remand for proper application of the standard. |
Key Cases Cited
- Federated Mut. Ins. Co. v. Ownbey Enterprises, 278 Ga.App. 1, 627 S.E.2d 917 (Ga. App. 2006) (notice requirement as condition precedent; unreasonableness defeats coverage)
- Guaranty Nat. Ins. Co. v. Brock, 222 Ga.App. 294, 474 S.E.2d 46 (Ga. App. 1996) (reasonableness standard; not required to foresee every claim)
- Plantation Pipeline Co. v. Royal Indem. Co., 245 Ga.App. 23, 537 S.E.2d 165 (Ga. App. 2000) (reasonableness of failure to give notice assessed under circumstances)
- Newberry v. Cotton States Mutual Ins. Co., 242 Ga.App. 784, 531 S.E.2d 362 (Ga. App. 2000) (reasonableness framework for notice under insurance policy)
- Walnut Avenue Partners, 296 Ga.App. 648, 675 S.E.2d 534 (Ga. App. 2009) (consideration of circumstantial evidence and foreseeability in notice cases)
- Miller, 183 Ga.App. 261, 358 S.E.2d 611 (Ga. App. 1987) (nature and circumstances of the incident determine notice reasonableness)
- Richmond v. Georgia Farm Bureau Mut. Ins. Co., 140 Ga.App. 215, 231 S.E.2d 245 (Ga. App. 1976) (discusses evaluating injuries and potential claims from event)
- Kay-Lex Co. v. Essex Ins. Co., 286 Ga.App. 484, 649 S.E.2d 602 (Ga. App. 2007) (insurer awareness of injury relevant to notice under delay scenarios)
- Allstate Ins. Co. v. Walker, 254 Ga.App. 315, 562 S.E.2d 267 (Ga. App. 2002) (timeliness of notice in reporting loss and related actions)
- Snow, 182 Ga.App. 1, 354 S.E.2d 644 (Ga. App. 1987) (notice timing objective to facts; delay assessment depends on foreseeability)