At issue is the liability under an uninsured motorist policy of Royal-Globe Insurance Company (Royal-Globe) to its insured, Theresa M. Craven (Craven), for personal injuries suffered by Craven in a hit and run accident. Royal-Globe sought a declaratory judgment that it was not liable to Craven because Craven’s notice to Royal-Globe was not timely. Further, Royal-Globe asked for a declaration that the applicable statute of limitations was three years pursuant to G. L. c. 260, § 2A (1990 ed.), and hence the complaint, which was filed more than three years after the accident, was barred by the statute of limitations. On cross-motions for summary judgment, the Superior Court judge entered a summary judgment for Craven, denied Royal-Globe’s motion for summary judgment, and ordered that the matter proceed to arbitration.
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Royal-Globe appealed. We transferred the appeal to this court on our own motion. We reverse and order that a judgment be entered declaring that Royal-Globe is not liable to Craven because Craven’s notice to Royal-Globe was not timely. We also express our views on the appropriate statute of limitations. See
Wellesley College
v.
Attorney Gen.,
The facts are as follows. In the early morning of September 19, 1979, Craven was injured in a hit and run automobile
Craven gave Royal-Globe formal notice of her claim on January 23, 1980. Royal-Globe denied her claim for recovery under her uninsured motorist policy on April 6, 1981. 2 On December 12, 1984, Craven filed a demand for arbitration of her uninsured motorist claim. On March 11, 1985, Royal-Globe filed a complaint in Superior Court seeking a declaration that it had no obligation to submit to arbitration as it was not liable under the policy. 3
1. Timely notice. Royal-Globe asks us to reverse the summary judgment for Craven on the ground that Craven did not comply with her contractual obligation to give timely notice of her claim. 4 Craven asserts that whether her notice to Royal-Globe was sufficiently prompt in the circumstances is a question of fact. Craven further maintains that therefore this court may only reverse if the allowance of summary judgment constitutes an abuse of discretion or clearly is erroneous.
“The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.”
Augat, Inc.
v.
Liberty Mut. Ins. Co.,
The uninsured motorist policy in effect at the time of the accident requires notice to both the police and the insurer “[wjithin [twenty-four] hours ... if [the insured has] . . . been involved in a hit and run accident.” The judge concluded, however, that Craven “was in the intensive care unit during the first twenty-four hours [after the accident]” and could not be expected to notify the police and her insurance company within twenty-four hours. The judge ruled that Craven therefore was excused from the twenty-four hour notice requirement.
Royal-Globe maintains that the judge’s ruling on excuse was error because someone hired an attorney to represent Craven the morning of the accident. If Craven or someone acting on her behalf was able within twenty-four hours to engage a lawyer to represent her, Royal-Globe argues, it was error for the judge to conclude that Craven was excused from the twenty-four hour notice requirement.
5
It is undisputed that Craven remained in intensive care for several days
Royal-Globe next maintains that even if twenty-four hour notice was excused because of disability, the requirement should be reimposed once the disability is removed. Under this interpretation of the policy, disability tolls the running of the twenty-four hour period but does not dispense with it. The judge concluded that in the event that twenty-four hour notice is excused initially by disability, as was the case here, the policy requires prompt notice but not necessarily twenty-four hour notice. We agree. The language of the policy puts a time pressure on the insured to notify the company immediately after the disability is removed.
Royal-Globe contends that based on the undisputed facts in this record, Craven’s notification, given more than four months after the accident and more than three months after her release from the hospital, was not prompt. We agree. Royal-Globe argues, and Craven does not dispute, that Craven was released from the hospital twenty-three days after the accident and that she stopped using medication one week after leaving the hospital. While at home, Craven was able to leave her home to visit doctors and dine out with her family. While she was at home, Craven also communicated with her office. Craven returned to work roughly three months after the accident; she did not give notice to Royal-Globe for another month. On this record, we cannot tell precisely when Craven’s disability was removed, but it is clear that she did not notify Royal-Globe immediately thereafter. 6
Craven contends that Royal-Globe is estopped from raising her failure of notice as a basis to deny liability. Craven maintains that from the time she notified Royal-Globe of her claim, the company investigated the claim, communicated with her counsel about the status of the claim, and even informed her counsel of the possibility that liability might be denied because of a failure of proof -— all without ever reserving the right to deny the claim based on late notice. The absence of such a reservation of rights, Craven argues, estops
“In order to work an estoppel it must appear that one has been induced by the conduct of another to do something different from what otherwise would have been done and which has resulted to his harm . . . .”
DiMarzo
v.
American Mut. Ins. Co.,
Moreover, “[t]he mere statement of one ground for denying liability without explanatory words or circumstances does not warrant the inference of an intention to relinquish other defences.”
Sheehan
v.
Commercial Travelers’ Mut. Accident Ass’n,
Because Craven’s notice was not prompt, and because Royal-Globe was not estopped from'defending against liability on the basis of Craven’s late notice, a judgment declaring that Royal-Globe is not liable to Craven because the notice was not timely should be entered.
2.
The applicable statute of limitations.
Although our resolution of the notice issue disposes of this case,, the parties and the amici express concern over the applicable statute of limitations. Because the issue has been fully briefed, we express our view. See
Wellesley College
v.
Attorney Gen.,
Under Massachusetts law, the determination of whether the contract or tort statute of limitations applies is controlled by the essential nature of a party’s claim. See
Hendrickson
v.
Sears,
Royal-Globe attempts to distinguish the weight of authority by arguing that G. L. c. 260, § 2A (1990 ed.), is unique among State statutes. The flaw in this argument is that the present action does not fall within the scope of c. 260, § 2A. Royal-Globe maintains that Craven’s action is literally an action “of contract to recover for personal injuries.”
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G. L. c. 260, § 2A (1990 ed.). We do not agree. In discussing G. L. c. 260, § 2A, we said that “[t]he 1948 amendment [that enacted the statute] was designed to produce more uniformity in limitation of actions of tort generally and of actions of contract for personal injuries. The focus of the draftsmen was on accidents
resulting in
injuries to person or property
Craven’s injuries, however, did not result from Royal-Globe’s conduct, and she could not sue her insurer in tort. The basis of Royal-Globe’s liability is not its actions resulting in personal injury but, rather, its contractual promise to indemnify against such injury. Accord
Lemrick
v.
Grinnell Mut. Reinsurance Co.,
Royal-Globe also argues that applying the six-year statute of limitations would work an unfair hardship on an insurance company as a subrogee of its insured in an action against an uninsured motorist. The plaintiff notes that under the subrogation provisions of G. L. c. 175, § 113L (4) (1990 ed.), it is entitled, after full payment to its insured, to be subrogated to Craven’s rights against the unknown tortfeasor. The tort statute of limitations, however, governs any action by Royal-Globe as subrogee of Craven against the hit and run tortfeasor. 12A G.J. Couch, Insurance § 45:655, at 223 (1981). Royal-Globe maintains that it is unfair to allow an insured six years in which to claim under an uninsured motorist policy while restricting to three years the period in which the insurer, as subrogee, may sue the tortfeasor. The
In Lemrick v. Grinnell Mut. Reinsurance Co., supra, the Supreme Court of Iowa reflected that the insurance company in that case “argues with some persuasiveness . . . that if its insured does not sue it . . . until two years [the statutory limitations period applicable to torts] have elapsed, then it can no longer successfully sue the uninsured motorist by way of subrogation, as two years on the tort action against him would have run out.....[The insureds] do not deny that if [their insurer] pays them, it will be subrogated pro tanto to their rights against the uninsured motorist. We do not pursue this argument, however, and make no pronouncement upon it, as we think the insured’s cause of action on the uninsured motorist clause is so clearly contractual that the matter of subrogation cannot change the result.” (Citations omitted.) Id. at 717. The Iowa Supreme Court concluded by holding that if there were an injustice inherent in this structure, “the proper avenue [of redress] would be to the legislature.” Id.
The judgment is reversed. The matter is remanded to the Superior Court for judgment declaring that Craven’s notice was not timely and therefore Royal-Globe is not liable to Craven.
So ordered.
Notes
The judgment did not declare the rights of the parties. “When an action for declaratory relief is properly brought. . . [t]he rights of the parties should be declared” (citations omitted).
Attorney Gen.
v.
Kenco Optics, Inc.,
Royal-Globe paid Craven’s claims under her Personal Injury Protection and Medical Payments policies and her claim for property damages.
The arbitration has been stayed pending the outcome of this action.
The standard Massachusetts automobile insurance policy in question instructs the insured what to do “[wjhen [tjhere is an [a]ccident or [l]oss.” The policy requires that the insured notify both the police and the insurance company within twenty-four hours if the insured has “been involved in a hit and run accident.” The policy further requires that, in all events, the insurance company “must be notified promptly of the accident or loss” (emphasis added).
That a lawyer was hired by someone within twenty-four hours does not indicate that Craven either authorized the hiring of the attorney or that she was able to authorize an attorney to give notice on her behalf.
The judge reasoned that, where there is an ambiguous provision in an insurance policy, the court must construe it strictly against the insurer. There was, however, no ambiguity in the policy’s use of the term “promptly.” In any event, the rule of strict construction against the insurer would not apply to this case. This is “because the policy language is controlled by the Commissioner of Insurance and not the insurer.”
Moore
v.
Metropolitan Property & Liab. Ins. Co.,
We have said, albeit in dicta, that an insured “did not act with reasonable promptness” when it waited forty-six days after learning of a claim before notifying its insurer.
Depot Cafe, Inc.
v.
Century Indem. Co.,
Craven also argues that Royal-Globe’s payment of her personal injury protection, medical benefits, and collision benefits claims is inconsistent with its denial of benefits under the uninsured motorist policy. Royal-Globe replies, however, that these benefits are recoverable in a one-car accident. Timely notice of these claims is thus not as crucial to the insurance company. Generally, in a one-car accident, fault is not an issue. Craven’s argument would require litigation as to claims in which there is no controversy, if there are some claims in dispute. We decline to adopt such a rule.
The parties do not dispute that Craven’s-action was timely if governed by the six-year limitations period of G. L. c. 260, § 2 (1990 ed.), and time-barred if governed by the three-year limitations period of G. L. c. 260, § 2A.
Craven directs our attention to cases from eighteen States whose courts apply the contract statute of limitations:
Cline
v.
Aetna Ins. Co.,
Royal-Globe cites the decision of a Florida court,
Lumbermens Mut. Casualty Co.
v.
August,