208 F. Supp. 354 | E.D. Pa. | 1958
The record, for the purposes of this motion, discloses the following facts:
On May 12, 1954, defendant, Continental Casualty Company, entered into a written, three-year contract of insurance
One of the grounds asserted by defendant in support of its motion for judgment on the pleadings is that plaintiff did not comply with the notice provisions of the insurance policy. Conditions Nos. 9 and 10 of the policy (see Exhibit “A” attached to Document No. 1 in Clerk’s file) provide as follows:
“9. Notice of Accident When an accident occurs 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. Such notice shall contain particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place and circumstances of the accident, the names and addresses of the injured and of available witnesses.
“10. Notice of Claim or Suit If claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representative.”
On this issue, the case of Unverzagt v. Prestera, 339 Pa. 141, 13 A.2d 46 (1940), is controlling. In the Unverzagt case, a permissive user, or additional insured, of an insured vehicle was held liable for injuries resulting from an accident in which he was involved. In his action against the insurance company, the additional insured claimed that he did not learn that the vehicle was insured until 31/2 months after the accident, when, for the first time, he told the insured of the accident. Only then was the insurance company notified — by the insured — of the accident in writing and forwarded the record papers of the pending litigation. Preliminarily, the court held that it was the duty of the persons claiming under the policy to show that its terms and conditions had been met. Secondly, the court held that the question as to whether or not the delay of notification was justifiable was a question of law to be determined by the court, since the facts were not in dispute and the only extenuating circumstance was the additional insured’s lack of knowledge of the policy which related to his exercise of due diligence. The court found, under the facts, that the additional insured did not exercise due dili