Case Information
*1 FIFTH DIVISION
PHIPPS, P. J.,
DILLARD and PETERSON, JJ. NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
June 30, 2016 In the Court of Appeals of Georgia
A16A0518. PROGRESSIVE MOUNTAIN INSURANCE CO. v. PE-022
BISHOP
P ETERSON , Judge.
Progressive Mountain Insurance Company (“Progressive”) appeals from the denial of its motion for summary judgment in this coverage dispute with its insured, James Bishop. The trial court held that there was a jury question as to the sufficiency of Bishop’s excuse for delay in notifying Progressive about a motor vehicle accident in which he was injured. Progressive argues that the trial court erred by failing to consider the entire body of relevant case law on insurance contracts and by failing to recognize that (1) the prompt notice provision in Bishop’s policy created a condition precedent to coverage; (2) Bishop’s failure to notify Progressive of the accident until 10 months and 25 days after it occurred was unreasonable as a matter of law and *2 thereby foreclosed coverage; (3) Bishop’s excuse for the delay in notice was unjustifiable; and (4) the excuse Bishop offered in an affidavit was contradicted by his later deposition testimony. These related enumerations of error relate to the same ultimate question in this appeal: Did Progressive show as a matter of law that Bishop failed to give notice “promptly” under his policy with the insurance company such that coverage was foreclosed? Answering that question in the negative, we affirm.
Summary judgment is proper when there is no genuine issue of material fact
and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c). We
review a grant or denial of summary judgment de novo and construe the evidence in
the light most favorable to the nonmovant.
Home Builders Ass’n of Savannah v.
Chatham Cty.
,
So viewed, Bishop was injured in a motor vehicle collision on December 12, 2012. At the time of the collision, Bishop was the named insured of a Progressive motor vehicle policy that provided for $500,000 in uninsured/underinsured motorist (“UM”) coverage. The policy provided:
For coverage to apply under this policy, you or the person seeking coverage must promptly report each accident or loss even if you or the person seeking coverage is not at fault. You or the person seeking coverage must provide us with all accident/loss information including *3 time, place, and how the accident or loss happened. You or the person seeking coverage must also obtain and provide us the names and addresses of all persons involved in the accident or loss, the names and addresses of any witnesses, and the license plate numbers of the vehicles involved.
Bishop was treated for his injuries, initially receiving trigger point injections and epidurals. Following the collision, he was in contact with the at-fault driver’s insurance company and was aware that there was liability coverage to cover his claim. On October 17, 2013, he hired an attorney. Through counsel, he gave notice of the accident to Progressive on November 6, 2013. Bishop underwent surgery related to his injuries in December 2014.
In both an affidavit and in his deposition, Bishop offered explanations for the delay in giving notice to Progressive. In the April 2015 affidavit, Bishop said he had not anticipated that his claim would create exposure to his UM coverage until about October 2013. He said he had hoped in May 2013 that his treatment would conclude soon, but his pain persisted and worsened. He contacted counsel after he realized his injuries were more serious than expected and his medical bills began to increase. At his deposition given a few weeks after he signed the affidavit, he reaffirmed that he initially did not think his injuries were serious enough to warrant notifying *4 Progressive of the accident. Bishop acknowledged in his deposition that he had never read his policy with Progressive and was not aware that it required him to notify Progressive of any motor vehicle accident over which he sought coverage.
After Bishop filed a lawsuit over the accident against the other driver, Progressive filed an answer in its own name, seeking dismissal of any claims against it and making a cross-claim against the defendant. [1] Progressive later moved for summary judgment on the ground that Bishop failed to report the accident promptly to the insurance company. The trial court denied the motion after a hearing, saying Bishop’s declaration that he was initially unaware of the severity of his injuries and evidence that Bishop gave notice to Progressive soon after seeking legal representation made the case one for a jury. The trial court granted a certificate of immediate review, and we granted Progressive’s application for interlocutory appeal.
1. Progressive argues that the trial court failed to consider that the notice
provision found in Bishop’s policy is a condition precedent to coverage. When
possible, we construe insurance policies to provide coverage, so as to advance the
benefits intended to be accomplished by such policies.
See Plantation Pipe Line Co.
*5
v. Stonewall Ins. Co.
,
“[T]he general rule is that a notice provision in an insurance policy is only considered a condition precedent to coverage if it expressly states that a failure to provide such notice will result in a forfeiture of the insured’s rights or uses language which otherwise clearly expresses the intention that the notice provision be treated as a condition precedent.” Id. at 312 (2) (citation and punctuation omitted). Policy language that merely requires the insured to give notice of a particular event does not by itself create a condition precedent. Id. A general provision that no action will lie *6 against the insurer unless the insured has fully complied with the terms of the policy will suffice to create a condition precedent. See Lankford v. State Farm Mut. Auto. Ins. Co. , 307 Ga. App. 12, 14 (703 SE2d 436) (2010) (noting policies at issue provided that “[t]here is no right of action against” the insurance company “until all the terms of this policy have been met”); see also Plantation Pipe Line Co. , 335 Ga. App. at 312 (2) n.14 (citing cases).
Bishop’s policy contained a general provision requiring his full compliance
with the policy’s terms: “We may not be sued unless there is full compliance with all
the terms of this policy.” Progressive argues that the notice provision in Bishop’s
policy creates a condition precedent to coverage, particularly in the light of that
general requirement that the insured must comply fully with the policy’s terms before
the insurer may be sued. We agree, as the policy predicated coverage on compliance
with all the terms of the policy, which of course includes the notice provision.
See
Barclay v. Stephenson
, Nos. A16A0318 - A16A0321,
2. Progressive argues that the nearly 11-month delay in Bishop giving notice
of the accident was unreasonable as a matter of law and therefore foreclosed
coverage. We disagree. “Under Georgia law, whether an insured gave an insurer
timely notice of an event or occurrence under a policy generally is a question for the
factfinder.”
Plantation Pipe Line Co.
,
In cases in which a policy’s notice provision gives no specific time frame, there
is no bright-line rule on how much delay is too much. We have held that a delay as
long as or longer than that involved in this case presents a question for a jury.
See
Rucker v. Allstate Ins. Co.
,
Here, Bishop has presented evidence that he did not give notice to Progressive
sooner because he did not realize the extent of his injuries and thought the other
driver’s insurance would be sufficient to cover them. As in
Rucker
, where we found
that the insured’s ignorance of the extent of injuries to a child hit while riding a
bicycle could excuse a delay in notice,
see Rucker
,
This is unlike
Manzi v. Cotton States Mut. Ins. Co.
,
Our decision in Lankford also is distinguishable. In that case, the plaintiff’s employer, whose car the plaintiff had been driving at the time of the accident, sought and received monies under the other driver’s liability policy. Lankford , 307 Ga. App. at 12-13. The plaintiff, however, did not give his insurer written notice that he was seeking uninsured motorist coverage until he filed a lawsuit — nearly two years after the accident, and more than a year after he underwent surgery in connection with the *11 injuries he received in the accident and his attorney requested and received disclosure of the other driver’s policy limits. Id. at 13. We concluded that the plaintiff did not provide notice “as soon as reasonably possible” as required by his policy, saying the required notice was to be given as soon as possible after the accident, not as soon as possible after the other driver’s coverage was exhausted or the plaintiff became concerned that his losses might exceed the other driver’s policy limits. Id. at 14. However, we also relied on case law to the effect that a delay of two years was unreasonable as a matter of law, acknowledging that the notice requirement in the plaintiff’s policy “affords some leeway,” just not unlimited leeway. Id. at 15 (citation and punctuation omitted). Here, the delay was less than 11 months, and Bishop provided notice more than a year before undergoing surgery for his injuries. We cannot say that Lankford demands a finding that the delay in Bishop giving notice was unreasonable as a matter of law.
Progressive argues that Bishop’s initial failure to recognize the severity of his
injuries cannot justify his delay in giving notice because an insured cannot rely on his
own subjective beliefs or conclusions as an excuse. Progressive cites cases with a
variety of factual scenarios for the proposition that Bishop’s justification is not a
valid one.
See Allstate Ins. Co. v. Walker
,
Finally, Progressive argues that Bishop’s explanation that he initially did not
recognize the extent of his injuries cannot justify the delay in giving notice because
he later contradicted it. In his affidavit, Bishop said that he initially had not
anticipated that his claim would create exposure to his uninsured motorist coverage
but contacted counsel after he realized that his injuries were more serious. At his
deposition a few weeks later, he reaffirmed that explanation but also said that he had
never read his policy and was not aware of its notice requirement. Progressive
correctly points out that, when a party acts as his own witness, a trial judge
considering a motion for summary judgment is not to consider any of that witness’
*14
testimony that is self-contradictory, unless a reasonable explanation for the
contradiction is given.
See Thompson v. Ezor
,
*15 We recognize that our jurisprudence on the question of what constitutes sufficiently prompt notice under an insurance contract like Bishop’s is not easily harmonized. Indeed, some of our prior decisions are difficult to reconcile with each other, as is not uncommon in an area that calls for a fact-specific inquiry. And we are mindful of the critical importance of enforcing contracts as written; a legal system that does not undermines civilization itself.
But Progressive’s problem here is a direct result of the language it chose to use.
Whether an insured has provided notice “promptly” is an inherently fact-specific
question of the kind we leave juries to answer. If insurance companies wish greater
certainty, they might consider using different, less flexible contractual language that
establishes precise deadlines, such as the 60-day provision in
Manzi
. In the absence
of such contractual precision, the fundamental starting point for our analysis is that
generally a jury is to decide whether an insured has presented adequate justification
to render delayed notice nevertheless sufficiently “prompt.”
See Plantation Pipe Line
Co.
,
case may sometimes make such a delay unjustified as a matter of law, see id ., we cannot say on this record that this is such a case.
Judgment affirmed. Phipps, P. J., and Dillard, J., concur .
Notes
[1] Although Bishop’s complaint is not included in the record on appeal, it does not appear that Bishop sued Progressive directly.
[2] In so concluding, we do not mean to suggest, as Progressive does, that the trial court erred. Although Progressive complains that the trial court failed to recognize that the notice provision was a condition precedent to coverage, the trial court’s ruling did not turn on any failure by the insurance company to show prejudice. The trial court therefore appears to have determined implicitly that the notice provision is a condition precedent.
[3] Progressive correctly notes that, soon after deciding
Rucker
, we said in a
whole court decision that the
Rucker
court never should have considered the defense
of lack of notice, because that case involved coverage for a claim by a third party, and
lack of notice of an accident is not a defense available to an insurer in such a
scenario.
See Ginn v. State Farm Mut. Auto. Ins. Co.
,
[4] It seems appropriate to rely on our precedent construing provisions that
require notice be given “as soon as practicable” or similar language in this case
involving a provision requiring that notice be given “promptly.” The word “promptly”
essentially means to do something as soon as possible.
See
Webster’s New Collegiate
Dictionary 942 (9th ed. 1991) (defining “prompt” as “being ready and quick to act as
occasion demands” and “performed readily or immediately”);
see also Certified
Indem. Co. v. Thun
,
[5] In a motion for reconsideration, Progressive also argues that we disregarded
precedent establishing that a party is charged with knowing the contents of his
contract, contending that because Bishop did not read his policy, his failure to notify
Progressive was not justifiable as a matter of law. These arguments are somewhat in
tension, however. It is true that one who signs a contract, including an insurance
contract, is presumed to know its contents, and the law requires more than mere
ignorance of the contract to avoid its terms.
Int’l Indemnity Co.
,