DiProspero v. Nationwide Mutual Fire Insurance

30 Conn. Supp. 291
CourtPennsylvania Court of Common Pleas
DecidedJune 6, 1973
DocketFile No. 95325
StatusPublished

This text of 30 Conn. Supp. 291 (DiProspero v. Nationwide Mutual Fire Insurance) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DiProspero v. Nationwide Mutual Fire Insurance, 30 Conn. Supp. 291 (Pa. Super. Ct. 1973).

Opinion

Levine, J.

The plaintiff owns commercial premises at 51 Danbury Road, Wilton. She leased the premises in February, 1969, to Matthew Piazza for use as a clothing store. As part of the leasing agreement, Piazza was required to secure fire insurance coverage on the structure, naming the plaintiff as a coinsured as her interest might appear.

Piazza did procure the issuance of a policy by the defendant Nationwide, for a three-year term, from March 6, 1969 to March 6, 1972, in the sum of $20,000. The policy named Piazza, his associate, William Pinciaro, and the plaintiff as coassureds as their interest might appear. The address of record in the policy for all three individuals was 51 Dan-bury Road, Wilton. The plaintiff’s residence is in Westport.

On or about July 21, 1970, a fire damaged a substantial part of the plaintiff’s building in Wilton. The appraised value of the loss was $12,637, based [293]*293on an estimate by tbe plaintiff’s expert. When the plaintiff attempted to secure payment of the loss from Nationwide, she was advised that the policy had been canceled as of September 2, 1969, owing to nonpayment of premium. The cancelation notice was in the form of a letter, emanating from the Hamden office of Nationwide, dated August 19,1969, effective September 2, 1969, and mailed to Piazza, Pinciaro and the plaintiff at the Wilton address.

The policy had been procured through the defendant Paul A. Sharron, of Norwalk, an agent for Nationwide.

The plaintiff commenced the instant action, for reimbursement of the loss, against both Sharron and Nationwide.

I

The writ originally contained four counts. At the time of trial, the fourth count was withdrawn by the plaintiff and the ease went to the jury solely on three counts. The first and third counts asserted liability against Nationwide, while the second count sought recovery against Sharron.

The sole special defense filed by the defendants was that the policy had been canceled, owing to the claimed nonpayment of premium, by the letter of August 19, 1969, and therefore the defendants were not liable for the loss in July, 1970.

The plaintiff denied actual receipt of the notice of cancelation. She stressed the fact that the notice was addressed to the store premises, and not to her residence. She further alleged that on or about August 20, 1969, her regular insurance agent, John Kallaugher, had notified Sharron to endorse the policy so that it would not be canceled without five days’ prior written notice to the plaintiff. At trial, Sharron denied receiving this letter.

[294]*294At the conclusion of the evidence, the defendants made a motion for a directed verdict. Decision was reserved thereon, pursuant to § 255 of the Practice Book.

The jury returned a verdict against both defendants for $13,965. The defendants thereafter filed a motion for judgment, under § 255 of the Practice Book, .and the standard motion to set aside the verdict because it was contrary to law and against the evidence. Both motions, however, as the defendants’ counsel stated in oral argument, are limited to two basic objections to the charge, to be discussed hereinbelow.

II

The defendants initially protested the portion of the court’s charge which stated that to prove their special defense, under the policy terms, they must establish that the plaintiff actually received the cancelation notice of August 19, 1969.

Section 38-98 of the General Statutes makes it mandatory that a fire insurance policy contain .a provision giving the insurer a right to cancel the policy by “giving” the insured a five-day written notice of cancelation. The statute does not contain any express provision as to the .address to which the notice shall be sent. It is even silent as to the precise mode of “giving” the notice — whether by mail, in person, or otherwise.

The actual text of the DiProspero policy closely follows § 38-98 by providing for cancelation at any time by Nationwide by “giving” a five-day written notice to the insureds.

Where the statute, or policy provision, requires the “giving” of notice to the insured, without stipulating .any form or way in which the notice must be given, actual receipt by the insured of such notice is generally recognized as a condition precedent to [295]*295valid cancelation of the policy. Therefore, a cancelation notice contained in a letter mailed by the insurer but not received by the insured is ineffective as a valid cancelation. Powell v. Lititz Mutual Ins. Co., 419 F.2d 62; 43 Am. Jur. 2d 455, Insurance, §408 (stating that this rule is “universally recognized”); note, 64 A.L.R.2d 982, 994; 6A Appleman, Insurance Law and Practice § 4186, p. 554.

In Powell v. Lititz Mutual Ins. Co., supra, 66, the court said: “By the terms of the policy more than mere mailing was required. The insurer had to give the insured written notice. We hold that because of these policy terms if the notice was not received by the insured the policy was not can-celled.”

In Boyce v. National Commercial Bank & Trust Co., 41 Misc. 2d 1071, aff’d, 22 App. Div. 2d 848 (N.Y.), involving an action in New York against the defendant Nationwide, likewise on a fire insurance policy, Nationwide claimed that a notice of cancelation had been mailed to the plaintiffs owing to nonpayment of premium. The plaintiffs denied receipt of the notice. The policy provisions and the New York statute pertaining to cancelation notices (N.Y. Ins. Law § 168) were either identical or substantially similar to the corresponding provisions in the instant case. In ruling for the plaintiffs, the court stated (p. 1074): “In the cases dealing with interpretation of a provision that requires that a notice should be ‘given’, it has been held that the requirement is not fulfilled until the party entitled to notice has received the required notice.” (Italics supplied.) In accord was Fifty States Management Corporation v. Public Service Mutual Ins. Co., 67 Misc. 2d 778, 785, citing Boyce.

The statutory mandate as to notice must be strictly followed. 45 C.J.S. 83, Insurance, § 449.

[296]*296There was ample evidence from which the jury could conclude that Nationwide’s cancelation letter dated August 19, 1969, was never, in fact, actually received by the plaintiff. Accordingly, the jury could reasonably find that the defendants had not sustained their burden of proof on this issue. Clary v. Empire Mutual Ins. Co., 30 Conn. Sup. 113.

Research did not reveal any Connecticut authorities directly in point. The court believes, however, that the text and case citations referred to herein-above contain a well-reasoned analysis of the prevailing law, which should be applied herein. The defendants’ counsel did not furnish the court with any authorities to the contrary, in any jurisdiction whatsoever.

Westmoreland v. General Accident Fire & Life Assurance Corporation, 144 Conn. 265, is clearly distinguishable. The policy provision in that case expressly referred to cancelation by mail.

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Bluebook (online)
30 Conn. Supp. 291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diprospero-v-nationwide-mutual-fire-insurance-pactcompl-1973.