Motor State Insurance v. Benton

192 N.W.2d 385, 35 Mich. App. 287, 1971 Mich. App. LEXIS 1448

• Court: Michigan Court of Appeals
• Decided: July 27, 1971
• Docket: Docket 10587
• Status: Published

Opinions

Bronson, J.

Defendant Donald Benton was a passenger in an automobile which was involved in an automobile accident on December 28, 1966. Defendant suffered permanent injuries to the right arm as a result of the accident. Defendant, at the time of the accident, was in the Army and three days after the accident occurred returned to his duty station at Ft. Benjamin Harrison, Indiana, until released from the Army on October 7, 1968. The defendants retained an attorney whose investigation revealed the driver of the auto was uninsured.

The plaintiff had issued an automobile insurance policy to the defendant George Benton which provided uninsured motorist coverage to the defendant George Benton and his relatives of the same household. Plaintiff’s policy of insurance contained the following notice provision: “In the event of an accident, occurrence or loss, written notice shall be given by or for the insured to the company or its authorized agents as soon as practicable.” Defendants notified the plaintiff of the accident on February 12, 1969. This was the first notice to the plaintiff.

Plaintiff alleged it could not conduct a proper investigation because of the delay in notice and, therefore, was prejudiced. Plaintiff sought a declaratory judgment declaring defendant Donald Benton not covered by the policy because of prejudice resulting from the delay in giving notice.

The trial court granted the declaratory judgment based on stipulated facts and oral arguments; defendants appeal from the judgment.

The only issue on appeal is whether the trial court committed reversible error in entering a declaratory judgment in plaintiff’s favor upon the basis that plaintiff insurer had been prejudiced by the failure to give notice of the accident “as soon as practicable” as provided in the policy of automobile insurance.

If an insured has unreasonably delayed in giving notice, the insurer can be released from liability under the insurance policy. Kennedy v. Dashner (1947), 319 Mich 491; Wehner v. Foster (1951), 331 Mich 113; Weller v. Cummins (1951), 330 Mich 286; Grand Rapids Auctions, Inc. v. Hartford Accident and Indemnity Company (1970), 23 Mich App 389.

The clause “as soon as practicable” is interpreted to mean “a reasonable time, dependent upon the facts and circumstances of the case”. Kennedy v. Dashner, supra, 494. To determine if an unreasonable delay in notice has occurred, prejudice to the rights of the insurer is a necessary element to consider. Weller v. Cummins, supra. The insurer has the burden of proving the delay in giving notice has resulted in prejudice. Wehner v. Foster, supra. Whether prejudice has resulted is a factual question for the trier of facts’ determination. Grand Rapids Auctions, Inc. v. Hartford Accident and Indemnity Company, supra.

The trial court was sitting as the trier of facts, and whether prejudice resulted was a factual question for its determination. This Court will not set aside factual determinations by the trial court sitting as trier of fact unless they are clearly erroneous. Our review of the record does not reveal such error. The trial court’s determination that the plaintiff’s rights were prejudiced by the delay in notice will not be disturbed.

The trial court’s decision is affirmed. Costs to plaintiff.

Danhoe, P. J., concurred.