Great American Insurance v. C. G. Tate Construction Co.

328 S.E.2d 891, 74 N.C. App. 424, 1985 N.C. App. LEXIS 3529
CourtCourt of Appeals of North Carolina
DecidedMay 7, 1985
Docket8410SC743
StatusPublished
Cited by4 cases

This text of 328 S.E.2d 891 (Great American Insurance v. C. G. Tate Construction Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Great American Insurance v. C. G. Tate Construction Co., 328 S.E.2d 891, 74 N.C. App. 424, 1985 N.C. App. LEXIS 3529 (N.C. Ct. App. 1985).

Opinions

BECTON, Judge.

I

Great American Insurance Company (Great American) instituted this declaratory judgment action to determine its liability [425]*425under a general liability insurance policy issued to C. G. Tate Construction Company (Tate) for damages arising out of an accident occurring on 6 April 1978. This action has already been the subject of two prior reported cases, both appearing as Great American Insurance Company v. C. G. Tate Construction Company, at 46 N.C. App. 427, 265 S.E. 2d 467 (1980) and 303 N.C. 387, 279 S.E. 2d 769 (1981).

The central issue involved in these extended proceedings is whether the failure of an insured to comply with a policy provision which requires the insured, as a condition precedent to coverage, to give the insurer notice “as soon as practicable,” releases the insurer from its obligations under the policy. The trial court originally entered judgment in favor of Great American, after concluding that Tate failed to give notice to Great American “as soon as practicable” and that such failure was unjustified and inexcusable. Tate appealed to this Court, and we reversed, holding that an insured’s failure to comply with a notice provision will not relieve the insurer from its duty to defend and indemnify unless the notice was not given within a reasonable time, and the insurer suffered prejudice from the delay. We remanded for a determination on the issue of prejudice.

The Supreme Court modified and affirmed the Court of Appeals’ decision, holding that an unexcused delay by the insured in giving notice to the insurer of an accident does not relieve the insurer of its obligation to defend and indemnify unless the delay materially prejudices the insurer. The Supreme Court further held that the delay must be shown by the insured to have been made in good faith, and it also placed the burden of showing material prejudice on the insurer. The Supreme Court remanded the cause to superior court to allow the parties to present additional evidence on the issues of good faith and prejudice. Upon remand, a new judgment was entered in which the trial court concluded that Tate failed to notify Great American as soon as practicable, that such failure was not in good faith, and that Great American was not prejudiced by Tate’s failure to give it timely notification. The trial court held that Great American is liable on the policy of insurance it issued to Tate. Great American has appealed, and Tate cross-appeals.

[426]*426On this appeal, Great American contends that the trial court erred in reaching the issue of prejudice once it determined the insured’s failure to give timely notice was in bad faith. On this issue, we agree with Great American. Tate argues that the trial court improperly used an objective, rather than a subjective, standard in determining good faith, and on this issue we agree with Tate. We therefore reverse, and remand this cause to superi- or court for entry of a new order consistent with this opinion.

II

Factual Background

Detailed renditions of the facts are set out in the two previously reported opinions, and we give only a brief summary here. On 6 April 1978, Tate was engaged in a construction project on U.S. Highway 221 in South Carolina. That afternoon, a collision occurred between a car operated by Norma Pegg and a tractor-tanker petroleum truck operated by Robert Thomas and owned by State Petroleum, Inc. Both drivers were seriously injured, although they managed to escape before the truck exploded and burst into flames. The heart of the legal controversy in this case derives from two completely divergent descriptions of the accident given by various witnesses. The operators of the vehicles and one other witness testified that the vehicles were travelling in opposite directions, and that the head-on collision occurred when the truck swerved to avoid hitting one of Tate’s bulldozers, which had suddenly backed into the truck’s lane of travel on the highway. Other witnesses, including several of Tate’s employees, gave an entirely conflicting version. These witnesses testified that when Pegg stopped or slowed her car, the truck, which was travelling directly behind her, braked, jackknifed, and rolled over her car. According to these witnesses, at the time of the collision Tate’s bulldozer was parked off the highway nearby, and was not directly involved in the accident. The bulldozer was, however, extensively damaged by the fire; both Tate’s job site foreman, A. G. Foster, and Tate’s general job superintendent testified to that effect.

Tate’s position throughout these proceedings has been that it never reported the accident to Great American because it believed it was neither responsible for nor involved in the accident. Although the investigating police officer testified to a conversa[427]*427tion he had with Foster the night of the accident, in which he informed Foster of the conflicting versions of the accident, Foster testified that he did not recall having this conversation. Foster does admit, however, that he was aware of media reports assigning blame to Tate.

Great American first learned of Tate’s potential involvement in the accident on 3 May 1978, when it was contacted by both Thomas’ attorney and Thomas’ employer, Space Petroleum. Great American is also the workers’ compensation carrier for Space Petroleum, and these communications involved a workers’ compensation claim on Thomas’ behalf. Great American then contacted Tate, which informed the insurer that it had not notified Great American because of its belief that Tate was not involved in the accident. Shortly thereafter, Great American instituted this declaratory judgment action.

Ill

We agree with Great American that once the trial court concluded that Tate had not acted in good faith when it failed to notify Great American of the accident “as soon as practicable,” it was error for the trial court to address and decide the issue of prejudice.

In its opinion, the Supreme Court abandoned the traditional contractual approach, by which an insured’s failure to strictly comply with the condition precedent of a notice provision releases an insurer from its obligations to defend and indemnify. In its place, the Court adopted the modern view that such a notice provision, “although denominated by the policy as a condition precedent, should be construed in accord with its purpose and with the reasonable expectations of the parties.” 303 N.C. at 390, 279 S.E. 2d at 771. The specific holding was that “an unexcused delay by the insured in giving notice to the insurer of an accident does not relieve the insurer of its obligation to defend and indemnify unless the delay operates materially to prejudice the insurer’s ability to investigate and defend.” Id. In order that its decision not result in insureds taking advantage of insurers by engaging in “dilatory tactics,” the court imposed the additional requirement that “any period of delay beyond the limits of timeliness be shown by the insured to have been in good faith.” Id. at 399, 279 S.E. 2d at 776.

[428]*428The court concluded that the effect of its decision was to “create a three-step test for determining whether the insured is obliged to defend,” particularizing the test as follows:

When faced with a claim that notice was not timely given, the trier of fact must first decide whether the notice was given as soon as practicable.

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328 S.E.2d 891, 74 N.C. App. 424, 1985 N.C. App. LEXIS 3529, Counsel Stack Legal Research, https://law.counselstack.com/opinion/great-american-insurance-v-c-g-tate-construction-co-ncctapp-1985.