Vaughn v. Shelter Mutual Insurance Co.

382 S.W.3d 736, 2011 Ark. App. 208, 2011 Ark. App. LEXIS 235
Court of Appeals of Arkansas·Decided March 16, 2011·No. No. CA 10-884·Published·Cited by 3 cases

Opinion

JOSEPHINE LINKER HART, Judge.

|, Glenda K. Vaughn appeals from the grant of summary judgment in favor of her automobile insurance company, Shelter Mutual Insurance Company (Shelter). The trial court ruled that Vaughn was not entitled to underinsured coverage. In support of its ruling, the trial court found that the policy was unambiguous as a matter of law. Further, it found that Vaughn failed to comply with the “ADDITIONAL DUTIES OF AN INSURED” requirements in her policy, which it opined were conditions precedent to coverage. On appeal, Vaughn raises two arguments. First, she asserts that, viewed in the light most favorable to her, the record contains evidence whereby a reasonable person could conclude that she complied with the Un-derinsured Motorist Endorsement of her policy because the record shows that she provided the specified 30 days’ notice; the trial court’s conclusion that Shelter objected to the settlement offer is of no legal significance; and the trial court erred in finding | .that the ADDITIONAL DUTIES provisions are unambiguous and created a condition precedent. Second, in the alternative, Vaughn argues that the trial court erred in applying Fireman’s Fund Ins. Co. v. Care Management, Inc., 2010 Ark. 110, 361 S.W.3d 800, “retrospectively” to the case at bar. Although we find error in some of the trial court’s findings, we nonetheless conclude that this case must be affirmed.

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, 2010 Ark. App. 773, 2010 WL 4638166. On appellate review, we must determine whether summary judgment was proper based on whether the evidence presented by the moving party, viewed in the light most favorable to the party resisting the motion, left a material fact unanswered. Id. Where there are no disputed material facts, our review must focus on the trial court’s application of the law to those undisputed facts. Id.

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” with these provisions. Attached to Shelter’s summary-judgment motion was an affidavit from Missy Pledger in which she asserted that Shelter received no notice of the accident until Vaughn contacted them by telephone on July 31, 2008, and it subsequently received the certified letter from Vaughn’s attorney.

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, 2008,1 and Shelter did not object within thirty days. Vaughn also argued that the underinsured provisions of her policy were ambiguous because there were two conditions precedent, the exhaustion of all liability coverage and giving notice of a tentative settlement. Vaughn also argues that summary judgment was not appropriate because Shelter was not prejudiced by her acceptance of a settlement of Patton’s policy limits.

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, 310 Ark. 21, 834 S.W.2d 637 (1992).

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Vaughn v. Shelter Mutual Insurance Co., 382 S.W.3d 736, 2011 Ark. App. 208, 2011 Ark. App. LEXIS 235 (Ark. Ct. App. 2011).

382 S.W.3d 736 (Vaughn v. Shelter Mutual Insurance Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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