Barrington Consolidated High School v. American Insurance

296 N.E.2d 62, 11 Ill. App. 3d 180, 1973 Ill. App. LEXIS 2402

Opinions

Mr. PRESIDING JUSTICE GUILD

delivered the opinion of the court:

Barrington Consolidated High School, School District 224 of Barrington, Illinois, and Kathleen Van Ness Lawyer, brought a declaratory judgment suit against The American Insurance Company, Newark, N.J., and Fireman’s Fund American Insurance Companies, Successor in Interest, to determine whether the company was obligated to defend and indemnify the school in a pending suit by a student and her father for personal injuries and medical expenses.

The trial court found that the high school and Mrs. Lawyer had no reason to believe that they would be charged with negligence; that the incident in question was not such an occurrence as would be contemplated under the provisions of the Notice Provision of the policy, and finally, that the insurance was in full force and effect and that Fireman’s Fund American Insurance Companies were obligated to defend the high school and Mrs, Lawyer, and had breached the terms of their policy in failing so to do. The trial court further ordered Fireman’s Fund American Insurance Companies to indemnify the high school and Mrs. Lawyer under the terms and provisions of the policy, and to pay costs and expenses. The Fireman’s Fund American Insurance Companies appeals.

The sole question before this court is the interpretation of the liability policy which contains a provision that the school shall give written notice to the insurance company “as soon as practicable.”

On Friday, January 29, 1965, Susan Schafer was a student at Barrington High School. She was injured in a gymnastic class in the use of a support horse. The next Monday she went to class and told Miss Van Ness (now Mrs. Lawyer) that her leg hurt. That night she went to the family doctor who put her on crutches and gave her a written excuse from gym which she delivered to Miss Van Ness on Tuesday. She also reported to the school nurse that she had been injured. She was on crutches for about two weeks. In February, 1965, she was hospitalized for three weeks. She returned to school and after school closed in the spring she was readmitted to the hospital for intensive care. On August 15, 1965, the parents of Susan Schafer inquired of the school authorities as to home tutoring for Susan. On September 16, 1965, the parents of Susan sent the following letter to the Lake County Superintendent of Schools, with a copy to Mr. Gillis, the school Principal, Dr. Finley, the school Superintendent, Mr. Schwem, the President of the School Board and Ray Page, the State Superintendent of Public Instruction. A pertinent portion of the letter is as follows:

“Our daughter, Susan, 16 years old, would be a junior attending Barrington Community Cons. High School Dist. 224 this year if it were not for an unfortunate accident which happened to her January 24, 1965.

Footnotes

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* So that you may better understand our reasons for writing to your office we will briefly explain the circumstances leading up to this letter.

Susan was injured while participating in a supervised gym class. Trying to leap over the gymastic ‘horse’ she fell and ruptured a blood vessel in her leg. She entered Sherman Hospital, Elgin, for a three week stay in February. She was released and was able to finish the school year. A few days after school closing she had a relapse which several doctors attribute directly to the gym accident. Since that time she has been and still is in the Sherman Hospital under intense care. Both arms and both legs are partially paralyzed. She has endured a major operation to control blood clots which resulted from the broken blood vessel, also suffered pneumonia and complications which almost resulted in death.

As you might imagine the injury has been very expensive. To date the insurance carrier for Dist. 224 has given us no satisfaction nor have they indicated any responsibility or liability. In fact, their attitude has been in our opinion outright obnoxious. It appears at present that we will have to pursue this in court. We have already started preliminary proceedings. However, as serious and exasperating as all this has been, it is not our main reason for writing to you.

Our main questions: How much trouble is it for school administrators to supply tutoring for a physically handicapped child? How long should we wait after request has been made for our child to be given help to which she is legally and morally entitled? We made first inquiry of Mr. Gillis, principal of Dist. 224 about August 15. Incidentally, it is much more difficult to get in touch with Mr. Gillis than it is with you.

Waiting several days and hearing nothing from Mr. Gillis, we called him again to no avail. We then saw Susan’s counsellor, who gave us a list of tutors names. Then we were sent to Mr. Lundahl, Business Administrator of Dist. 224, who said he would call us when he had information. He hasn’t. At present we are still waiting for assistance in picking tutors. We don’t know which ones are available. We don’t know anything about them. Should the school administrators give us help in choosing these teachers? The school year is approaching its second week and Susan has not yet started work and is becoming apprehensive over the delay.

We would also like to ask where is the moral obligation of this school system. During the whole 12 weeks plus that Susan has been in the hospital not one administrator or teacher has offered help or even inquired about her condition. Susan has been a good student in school and has never been a problem child. We cannot help but wonder what our school system has come to when concern for the individual is so lacking, and the emphasis on buildings and image is so obvious here.

If your office can answer some of these questions for us or give us any help we will greatly appreciate it. We do not want or expect anything beyond what any other handicapped student is entitled to, but we would like the school administrators to acknowledge that we do exist.”

Mr. Gillis, the school Principal, upon receipt of the letter discussed it with the school Superintendent, Dr. Finley, who in turn delivered a copy of the letter to Mr. Lundahl, the school’s business manager, whose responsibility it was to maintain liability insurance coverage for the school. No investigation was made of the alleged injury.

Susan Schafer had accident insurance with the Guarantee Trust Life Insurance Company in contradistinction to the liability insurance the school had with The American Insurance Company, Newark, N.J., and Fireman’s Fund American Insurance Companies, Successor in Interest, their liability carrier. Some confusion apparently arose as to an interpretation of the last paragraph of the above letter as to what insurance company was referred to in the letter. During the month of January the school nurse did in fact make out an accident insurance form for Susan Schafer. Home tutors were arranged for Susan for the school year of 1965, and in 1966 special transportation was arranged to bring her to the school. On February 26, 1969, Susan Schafer filed suit against Barring-ton High School and Mrs. Lawyer, her gym teacher, for the injury she received on January 29, 1965. This suit is still pending in the circuit court. On March 5, 1969, the summons and complaint in that suit were sent to Fireman’s Fund American Insurance Companies. This was the first notification that they had of any claim relating to Susan Schafer’s injuries, and they denied coverage because of the failure of the school to notify them of the Susán Schafer accident until four years after it occurred. The instant declaratory judgment suit then followed.

The school contends that the wording of the policy “as soon as practicable” means “within a reasonable time” and that a reasonable time depends upon the facts of each case. In support of this contention they first allege that the plaintiffs had every reason to believe that no claim would arise from the trivial occurrence. This court fails to see how the school could consider this incident as being trivial. After die accident the girl was placed on crutches by her doctor for a period of approximately two weeks, was then subsequently hospitalized for three weeks, returned to school and was readmitted to the hospital after the close of the school year. The parents in writing advised the school of her injuries by the above letter and the school in turn arranged for a tutor for Susan for the following year and special transportation to the school for the next year. It is difficult to see how the school could consider the injury as trivial.

The next contention of the school is that the plaintiffs reasonably assumed that they could not be liable and were thus excused. The authorities cited by the school do not support this contention in the light of the facts in the instant case. We find that the school did not act reasonably or prudently in failing to notify their insurance earner in view of the injury herein, the subsequent hospitalization, tutoring, and special transportation arranged by the school, all of which they had full knowledge. Additionally, the letter above identifying the injury was sent to the business manager of the school whose responsibility included the maintenance of liability insurance coverage for the school.

The court in Firemans Fund Indemnity Co. v. Kennedy (1938), 97 F.2d 882, 888, quoted the opinion in Texas Glass Co. v. Fidelity & Deposit Co., Tex.Com.App., 244 S.W. 113, as follows:

“'On the other hand, it is equally clear that determination of the question whether an occurrence comes within the terms of the policy as being an accident required to be reported should not be left solely to the judgment or discretion of the assured.’ ”

In City of Chicago v. United States Fire Insurance Co. (1970), 124 Ill.App.2d 340, 260 N.E.2d 276, a worker was injured on August 2, 1962. He filed suit on March 14, 1963 and over four years later the city notified their insurance company. As the court stated at page 346:

“The subject of excuses for delayed notice in insurance liability cases was extensively reviewed at 18 A.L.R.2d 470. We learn there that courts have, on occasion, excused a late notice where the insured was ignorant of the accident or injury; where the insured, acting as a reasonable man, believed that he was not liable; where, due to the trivial nature of the occurrence, the insured believed no claim would be filed; or where the insured, acting as a reasonably prudent person, believed that the accident was not covered j by the policy. The instant case falls within none of these categories.”

With this, we agree. The instant case before us does not fall within any of the categories therein enumerated.

Plaintiff has cited Century Indemnity Co. v. Serafine, 311 Fed.2d 676 (1963) CCA 7th; and General Insurance Co. v. Gilliam County High School, 234 Fed. Sup. 109 (1964), which in substance hold that delay in giving notice is excusable in the case of a trivial occurrence and notice of every mishap or occurrence need not be given under a policy of lia- I bility insurance where the injury is subsequently discovered. These cases are not applicable to the instant situation where the school could not possibly plead ignorance or triviality in view of the facts herein.

In International Harvester Co. v. Continental Casualty Co. (1962), 33 Ill.App.2d 467, 179 N.E.2d 883 at 835, the court stated:

“A notice provision such as this is not to be considered as a technical requirement included in policies merely for the convenience of the insurance company. Rather'is it a matter of substance imposing a valid prerequisite to coverage. [Citation,] Upon the happening of an accident, a prompt, as distinguished from a delayed, investigation of the facts of the occurrence can so greatly affect the efficiency of the defense as to change the very character of the risk insured. [Citation.] It follows, therefore, that the notice requirements of a policy apply not only to the named insured but also to unnamed additional insureds under an omnibus clause. [Citations.]” 33 Ill.App.2d at 472.

In the instant case the school administrator was duly notified of the injury and did nothing. See also Coburn v. Metropolitan Life Insurance Co. (1936), 230 Mo.App. 1140, 91 S.W.2d 157, and Scammon v. Germanic Insurance Co. 1881, 101 Ill. 621.

We then turn to the position of Kathleen Van Ness Lawyer. She is an adult insured under the policy of the school and we hold the notice requirements of the policy herein, apply to unnamed additional insureds in the liability policy of coverage for the school and its employees. In Metropolitan Life Insurance Co. v. Henry (1940), 24 N.E.2d 918 (Indiana) cited by defendant, the Supreme Court of Indiana held that notice by an employee under a group life and liability insurance policy was not within a reasonable time. In the Henry case the employee was disabled in 1928 and proof thereof was not given to the employer’s insurance company until 1935; the reason being that the employee thought the group policy was for life insurance only and he had no knowledge that it covered disability until three days before he gave notice to the insurance company. The Indiana Supreme Court further held that the employer was the agent for its employee, and that failure of the employer to give notice was imputed to the employee.

The Henry case was cited with approval in Navigazione Alta Italia v. Columbia Casualty Co. (1958), 256 F.2d 26. The plaintiff there was ignorant of the coverage afforded them as additional insured under another’s policy. While it is true that notice by the additional insured was not given until after judgment had been obtained, the court at page 28 nonetheless held that knowledge of the Walsh Stevedoring Company

“# ° 6 who took the policy out for plaintiffs benefit was in law notice to the plaintiff"

This court is cognizant of the variation of the rulings on this subject in other jurisdictions. We find no case directly in point in Illinois. We therefore choose to follow the doctrine enunciated in Metropolitan Life Insurance Co. v. Henry, 24 N.E.2d 918, under the facts in this case. Attention is directed to 47 A.L.R.3d 199, where the subject of ignorance of coverage was discussed as a factor excusing delay in reporting an accident. We find that inasmuch as the school failed to give notice, this in turn binds the additional insured, Mrs. Lawyer, who in fact had no knowledge of the policy. As far as the record herein discloses, Mrs. Lawyer referred Susan Schafer to the school nurse but took no further action with regard to the incident. Mrs. Lawyer failed to notify the school authorities of the accident and considered it trivial having made no inquiry as to whether there were any coverage. The principles enunciated herein apply to her as an additional insured.

We therefore find that the notice given by the school board to its insurance carrier did not comply with the provisions of the policy herein providing for notice “as soon as practicable” and that the insurance company is therefore not bound to defend the defendants. Judgment of the trial court is reversed.

Reversed.

ABRAHAMSON, J., concurs.

Np issue is raised as to the fact that the accident occurred January 29th, 1965.