|, Glenda K. Vaughn appeals from the grant of summary judgment in favor of her
It is appropriate for a trial court to grant summary judgment when it is clear that there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Scott Street Townhouses, LLC v. Underwriters at Lloyd’s London,
The legally significant facts are not in dispute. On June 14, 2005, Vaughn was injured in an automobile accident caused by the negligence of Juanita Patton. The car that Juanita was driving was owned by Harlon Patton and insured by State Farm. State Farm settled for policy limits and sent a check dated June 10, 2008, to Vaughn. By letter dated July 31, 2008, Vaughn’s attorney sent Shelter the draft of the settlement from State Farm, a schedule of her medical bills, the accident report, and a request for underinsured coverage. Shelter, through its claims department representative, Missy Pledger, responded that it had no prior notice of lathe accident, but agreed to investigate further, but under a reservation of rights, contending that notice of the accident was a condition of coverage. Vaughn concluded her case against the Pattons on August 28, 2008, when an order was entered in Scott County Circuit Court dismissing the case with prejudice.
Vaughn filed suit against Shelter on April 14, 2009, alleging breach of contract. Shelter moved for summary judgment, asserting that Vaughn agreed to settle with Patton without giving the notice to Shelter that was required under the policy. Shelter referred to this notice as a “condition precedent” to coverage. Shelter also asserted that Vaughn failed to comply with two other notice requirements, by 1) failing to give Shelter “prompt notice” of the accident; and 2) failing to “immediately” give written notice of making a claim for damages against Patton, because uncompensated damages may have been payable. Significantly, Shelter asserted that it was entitled to only “substantial compliance”
Vaughn opposed Shelter’s summary-judgment motion by asserting that on June 14, 2005, at 2:45 p.m., she reported the accident to Shelter through her agent Steve Jones. She attached an affidavit to that effect as well as a copy of her phone records. Vaughn also asserted that she had complied with the notice provisions regarding her proposed settlement with the RPattons. She stated that the notice was sent by certified letter on July 21, 2008,
In granting summary judgment, the trial court acknowledged that there may be an issue of fact as to whether Vaughn gave notice of the accident to Shelter. However, it found that the duties required of her under the “ADDITIONAL DUTIES OF AN INSURED” — providing Shelter with copies of the summons, petition, complaint or “other process” immediately upon filing — were conditions precedent to coverage. Further, it found that Shelter’s dispute about proper notice of the accident was “an objection sufficient to put any ‘tentative’ settlement on hold until the issue of proper notice of the accident could have been shown to [Shelter].” Vaughn timely appealed.
For expediency, we consider Vaughn’s second argument concerning the applicability to the case at bar of our supreme court’s recent decision in Fireman’s Fund Ins. Co. v. Care Management, Inc., supra, “retrospectively” to the case at bar. We agree with Shelter that it was not new law but reaffirmance of century-old precedents. Accordingly, we find the following holding to be binding authority:
| tj[A]n insured must strictly comply with an insurance policy provision requiring timely notice where that provision is a condition precedent to recovery. Failure to do so constitutes a forfeiture of the right to recover from the insurance company, regardless of whether the insurance company was prejudiced by the failure. On the other hand, if notice is not a condition precedent, the insurance company must show it was prejudiced by any delay in notice in order to be relieved of liability.
Id. We note that this rule of law is in harmony with Shelter Mutual Insurance Company v. Bough,
We now turn to Vaughn’s argument concerning the appropriateness of summary judgment in this ease. First, she argues that, viewed in the light most favorable to her as the party resisting summary judgment, the record contains evidence whereby a reasonable person could conclude that she complied with the Underinsured Motorist Endorsement of her policy. She asserts that the only notice requirement that was a condition precedent was found in the section of her policy entitled “Substitution of Coverages.” Pursuant to that section, she was required to provide only notice of settlement, which she claims to have done through her July
Vaughn’s assertion that she complied with the policy’s requirement that she notify Shelter thirty days prior to settlement is contradicted by the transmittal letter, which was dated | r,July 31, 2008. Vaughn provided no other proof in the record regarding when she notified Shelter of her pending settlement. Accordingly, Vaughn has failed to refute Pledger’s affidavit that alleges that Shelter did not receive notice of the settlement until Vaughn’s July 31, 2008 phone call. Even resolving all issues in the light most favorable to Vaughn as the non-moving party, as we must, we conclude that Vaughn provided, at best, twenty-eight days’ notice to Shelter prior to the effective date of settlement of this case.
In our review, we next consider the consequences of the lack of a full thirty days’ notice. Rules of interpretation for insurance contracts require that they be construed strictly against the insurer, but where language is unambiguous, and only one reasonable interpretation is possible, it is the duty of the courts to give effect to the plain wording of the policy. Prock v. Southern Farm Bur. Cas. Ins. Co.,99 Ark.App. 381 ,260 S.W.3d 737 (2007). Ambiguous terms within an insurance policy should be construed against the insurer. Id. However, the terms of an insurance contract are not to be rewritten under the rule of strict construction against the company issuing it so as to bind the insurer to a risk which is plainly excluded and for which it was not paid. Id. Language of an insurance policy is to be construed in its plain, ordinary, and popular sense. Id. The different clauses of a contract must be read together, and the contract should be construed so that all parts harmonize. Id. Construction that neutralizes any provision of a contract should never be adopted if the contract can be construed to give effect to all provisions. Id.
Here, the only applicable condition precedent found within the insurance contract was the duty to inform of a proposed settlement offer. Within the underinsured motorists endorsement, the paragraph titled “EXCLUSIONS” states in pertinent part:
17This Coverage does not apply:
(5) To any damages or uncompensated damages for which the insured or the insured’s legal representative, has released any tortfeasor without giving us the notice required by the section of this Coverage headed SUBSTITUTION OF COVERAGES and allowing us the time stated to respond.
Under the referenced SUBSTITUTION OF COVERAGES section, it states:
If a tentative settlement for the insured damages has been reached between the insured, a tortfeasor, and the tortfea-sor’s liability insurer, written notice may be given by the insured to us.
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(2) If that insured elects not to give us such notice, and concludes such tentative settlement by releasing any tortfeasor, no insurance is provided under this coverage.
As noted previously, we concluded that Vaughn failed to satisfy this condition.
While we agree with Vaughn that the trial court erred in finding that Shelter “objected” and that its objection had legal significance, we do not believe that this error affects the disposition of this appeal.
Likewise, while we also agree with Vaughn’s argument that the trial court erred in finding that she failed to fulfill a condition precedent by failing to send Shelter copies of her pleadings, it does not change the disposition of the appeal. While it is true that under the section titled “ADDITIONAL DUTIES OF THE INSURED” there is a requirement that _[iVaughn or her legal representative forward to Shelter copies of all pleadings in the event it files suit, the plain wording of the policy does not condition coverage on fulfilling this condition. This omission stands in stark contrast to the previously discussed condition precedent associated with the requirement to give notice of a tentative settlement. Moreover, Shelter itself did not assert that this duty was a condition precedent to coverage. Accordingly, under Fireman’s Fund, Ins. Co. v. Care Management, Inc., supra, Shelter would have to show prejudice to be afforded relief for breach of this condition. Shelter did not assert that it was prejudiced by Vaughn’s failure to fulfill this duty. However, the trial court’s erroneous conclusion regarding this breach of duty by Vaughn does not alter the fact that she failed to satisfy the above-discussed condition precedent.
Affirmed.
Notes
. As noted previously, the letter was dated July 31, 2008.