Gloria Silva v. Liberty Mutual Fire Insurance Company
344 Ga. App. 81
| Ga. Ct. App. | 2017Background
- Silva was insured under a Liberty Mutual auto policy that provided UM coverage and required the insured to notify the insurer "promptly" of an accident and to "promptly" send copies of legal papers if a suit is brought; failure to comply was a condition precedent to coverage.
- Silva was a passenger in a collision in September 2010; she did not notify Liberty Mutual of the accident at that time.
- Silva filed suit against the tortfeasor in September 2012, dismissed it in March 2013, and re-filed (renewal suit) in September 2013; she still did not notify Liberty Mutual of the accident or those suits.
- After learning in March 2015 that the tortfeasor’s liability limits were nearly exhausted, Silva settled with the tortfeasor for the available $36,950 and on May 4, 2015 amended her complaint to add a UM claim; Liberty Mutual was served with that amended complaint on May 5, 2015 — over 4 years after the accident and 18 months after the renewal suit.
- Liberty Mutual moved for summary judgment, arguing Silva’s multi-year delay breached the policy notice conditions and forfeited UM coverage; the trial court granted summary judgment, and Silva appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Silva gave "prompt" notice of the accident under the policy | Silva: notice was timely because counsel only recognized need for UM months/years later when liability limits were exhausted | Liberty: delay of 4 years 7 months (accident) and 18 months (suit) is unreasonable and breaches the policy condition precedent | Held: Delay unreasonable as a matter of law; Silva forfeited coverage |
| Whether serving the insurer under OCGA § 33-7-11(d) cures failure to give prompt contractual notice | Silva: service of amended complaint within 90 days of learning tortfeasor was underinsured satisfied statute and should suffice | Liberty: statutory service serves different purpose and does not supplant contractual prompt-notice requirement | Held: § 33-7-11(d) does not conflict with or excuse contractual prompt-notice; Silva’s contractual duty remained enforceable |
Key Cases Cited
- Lankford v. State Farm Mut. Automobile Ins. Co., 307 Ga. App. 12 (insured’s ~2‑year delay in notice unreasonable as matter of law)
- Burkett v. Liberty Mut. Fire Ins. Co., 278 Ga. App. 681 (policy requirement to "promptly" send legal papers; >1‑year delay not prompt)
- Protective Ins. Co. v. Johnson, 256 Ga. 713 (17‑month delay unreasonable as matter of law)
- Allstate Ins. Co. v. Walker, 254 Ga. App. 315 (≈1‑year delay unreasonable as matter of law)
- Geico Indem. Co. v. Smith, 338 Ga. App. 455 (passenger’s 6‑month delay unreasonable under similar notice language)
- Progressive Mountain Ins. Co. v. Bishop, 338 Ga. App. 115 (distinguishing shorter, excused delays where injury manifestation justified delay)
- Stout v. Cincinnati Ins. Co., 269 Ga. 611 (purpose of § 33‑7‑11(d) is notice of pendency of lawsuit to UM carrier)
- Lankford precedent cited for contractual notice principles: Lima Delta Co. v. Global Aerospace, 338 Ga. App. 40 (insurance contracts enforced according to unambiguous terms)