Lead Opinion
Thе only issue presented upon this appeal involves the construction of an automatic insurance provision contained in an automobile liability insurance policy issued by the insurer to Glasser.
The insurance policy issued to Glasser was dated December 1, 1954, was issued for the period of one year, and
“IV. Automobile Defined, Trailers, Two or More Automobiles, Including Automatic Insurance.
“(a) Automobile. Except where stated to the contrary, the word ‘automobile’ means: . . .
“(3) Temporary Substitute Automobile — under coverages A, B, and D, an automobilе not owned by the named insured while temporarily used as the substitute for the described automobile while withdrawn from normal use becausе of its breakdown, repair, servicing, loss, or destruction; . . .
“(4) Newly Acquired Automobile — an automobile, ownership of which is acquired by the nаmed insured who is the owner of the described automobile, if the named insured notifies the company within thirty days following the date of its delivеry to him, and if either it replaces an automobile described in this policy or the company insures all automobiles owned by thе named insured at such delivery date; but the insurance with respect to the newly acquired automobile does not apply to any loss against which the named insured has other valid and collectible insurance. The named insured shall pay any additional premium required because of the application of the insurance to such newly acquired automobile.”
The construction to bе given an automatic insurance clause in a policy of automobile liability insurance has not been passed upon in Wisсonsin. Courts that have construed such a provision have had different views as to the proper construction thereof. The majority rule, however, has been stated as follows:
“Where the ‘automatic insurance’ clause requires notice of the aсquisition of a new automobile to be given the insurer*501 within a specified time after delivery, a failure to give notice prior to an accident occurring after the expiration of the designated period precludes coverage of the new automobile. However, where the accident takes place within the notice period but before any notice has bеen given, it is generally held that the requirement of notice is a condition subsequent rather than a condition precedent and thаt such coverage is automatically effected upon delivery of the new automobile and remains in effect until the end of the specified period, irrespective of whether notice has been given.” 5A Am. Jur., Automobile Insurance, p. 83, sec. 84.
“Accident During Notice Period. A more difficult question is presented where the accident takes place within the notice period, but before any notice has been given. In this situation it has been generally held, on the theory that the requirement of notice is a condition subsequent rather than a condition precedent to extended coverage, that such coverage is automatiсally effected upon delivery of the new automobile and remains in effect until the end of the specified period, irresрective of whether notice has been given or not.” Anno. 34 A. L. R. (2d), Automobile Insurance, p. 944, sec. 7.
The Insurance Company contended before the trial court, as well as before us, that its policy of insurance did not cover the Chevrolet automobile until thе company had been notified that Glasser had purchased the same. It was the position of the plaintiff in both courts that the аbove-quoted policy provisions automatically afforded insurance coverage until the end of the thirty-day period irrespective of whether or not notice had been given prior to the time of the accident.
The trial court determined thаt the record was insufficient to establish whether or not the Chevrolet was an additional motor vehicle and consequently did not аttempt to answer that question. In ruling on the motion the trial court assumed that the Chevrolet was a substitute motor vehicle under the pоlicy. No determination was made as to whether or not the Chevrolet replaced the Ford automobile. That is the ultimate question to be determined.
By the Court. — Judgment reversed.
Dissenting Opinion
{dissenting). I cannot agree that the insurance policy covered the Chevrolet if the Chevrolet replaced the Ford described in the policy instead of being a temporary substitute autоmobile. The policy provision pertinent to an automobile newly acquired to replace the described vehiclе, sec. IV (a) (4), provides for coverage “if the named insured notifies the company within thirty days following the date of its [the new car’s] delivery to him.” In my opinion the quoted words, in their context, are free of ambiguity and mean what they say. Coverage is extended to the nеw vehicle from the date of its delivery if the notice is given as required, but not otherwise. The requirement of notice is not opprеssive to the insured, for it is understandable to a layman, and thirty days is ample time to permit giving notice without inconvenience.
In the prеsent case no notice of either the acquisition, the replacement, or the accident was given within the prescribed thirty-day period. Therefore the plain condition for extension of coverage to a newly acquired replacement vehicle was not met. Mr. Justice Hallows concurs in this opinion.