Progressive Mountain Insurance Company v. Bishop
338 Ga. App. 115
| Ga. Ct. App. | 2016Background
- Bishop (insured) was injured in a December 12, 2012 motor vehicle collision; his Progressive policy included $500,000 UM coverage and required accidents be reported “promptly.”
- Bishop treated for injuries, initially with injections/epidurals; he did not notify Progressive until November 6, 2013 (about 10 months, 25 days after the accident), after hiring counsel on October 17, 2013.
- Bishop testified (affidavit and deposition) that he delayed notice because he did not initially appreciate the severity/extent of his injuries and believed the at-fault driver’s insurer would cover the claim; he also admitted he had not read his Progressive policy.
- Progressive sought summary judgment arguing (inter alia) that the prompt-notice clause was a condition precedent and that the nearly 11-month delay was unreasonable as a matter of law, foreclosing coverage.
- The trial court denied summary judgment, finding Bishop’s explanation and the timing of notice after retaining counsel raised a jury question; this interlocutory denial was appealed by Progressive.
Issues
| Issue | Plaintiff's Argument (Bishop) | Defendant's Argument (Progressive) | Held |
|---|---|---|---|
| Whether the policy’s notice requirement is a condition precedent to coverage | Bishop argued he complied or had justification for delay (fact issue) | Progressive argued the notice clause (coupled with a general ‘no suit unless full compliance’ clause) created a condition precedent, disallowing coverage if not met | Court: The policy’s general compliance clause makes the notice requirement a condition precedent; insured must justify failure to comply |
| Whether ~11-month delay was unreasonable as a matter of law | Bishop argued delay may be justified because he did not discover the extent of injuries until later; fact question for jury | Progressive argued delay was unreasonably long and should bar coverage as a matter of law | Court: Delay not unreasonable as a matter of law here; whether justification suffices is a jury question |
| Whether subjective ignorance of policy terms (not having read the policy) defeats Bishop’s excuse | Bishop said lack of knowledge of policy terms does not contradict his medical-based excuse for delay | Progressive argued ignorance of policy cannot excuse delay and cited cases holding subjective beliefs insufficient | Court: Lack of reading the policy is not dispositive; ignorance alone does not automatically defeat justification; testimony was not self-contradictory |
| Whether Bishop’s affidavit was contradicted by later deposition testimony such that it must be disregarded | Bishop’s affidavit and deposition consistently stated he underestimated injury severity and notified insurer after counsel retained | Progressive claimed contradiction (policy ignorance) that would bar reliance on affidavit | Court: No true self-contradiction; deposition and affidavit consistent; trial court properly considered Bishop’s explanation |
Key Cases Cited
- Plantation Pipe Line Co. v. Stonewall Ins. Co., 335 Ga. App. 302 (discusses notice as condition precedent and prejudice requirement)
- Lankford v. State Farm Mut. Auto. Ins. Co., 307 Ga. App. 12 (notice as condition precedent when policy conditions suit on full compliance)
- Rucker v. Allstate Ins. Co., 194 Ga. App. 407 (nearly one-year delay can present jury question where extent of injury was not evident)
- Sands v. Grain Dealers Mut. Ins. Co., 154 Ga. App. 720 (11-month delay analyzed under “as soon as practicable” language)
- Bituminous Cas. Corp. v. J. B. Forrest & Sons, Inc., 132 Ga. App. 714 (four-month delay held unreasonable as matter of law)
- Manzi v. Cotton States Mut. Ins. Co., 243 Ga. App. 277 (enforced specific 60-day contractual notice deadline)
- Thompson v. Ezor, 272 Ga. 849 (self-contradictory testimony rule in summary judgment context)