Cotton States Mutual Insurance v. Hipps
Cotton States Mutual Insurance v. Hipps
Opinion of the Court
Cotton States Mutual Insurance Company filed this action to have its rights declared under its policy with Michael Hipps.
On April 24, 1994 Hipps’ son Jeffrey was involved in a collision with other persons. Those other individuals maintained liability coverage with Travelers Insurance Company. Hipps contacted the other individuals’ insurer soon after the collision and sued them on April 21, 1995. Cotton States avers that a year after the collision in June 1995, Hipps’ attorney advised Cotton States that he had filed suit on Hipps’ behalf against others who had then filed counterclaims against Hipps for personal injury and property damage. Cotton States avers undisputedly that this was its first notice that its insured, Hipps’ son, had been in a collision.
Cotton States seeks a declaration of non-liability because Hipps failed to comply with the condition precedent to coverage stated in Cotton States’ policy that the insured give notice to Cotton States within 60 days after the covered incident. The trial court denied Cotton States’ motion for summary judgment. On appeal, Michael Hipps contends he should be excused from that requirement because his son Jeffrey was not a named insured and was never in possession of the policy, so Hipps had no duty to comply with the requirements of the contract because Hipps’ son Jeffrey did not know the contract existed, did not know he was insured under it, and did not know its terms. Held:
The trial court erred in denying judgment to Cotton States. The contract at issue provides unequivocally: “IV. DUTIES AFTER AN ACCIDENT OR LOSS. ... We must be notified promptly, but in no event later than 60 days, of how, when and where the accident or loss happened. Notice should also include the names and addresses of any injured persons and of any witnesses. Receipt of such notice by the company or any of its authorized agents shall be a condition precedent to the existence of any coverage under this policy and of the company’s obligation to defend any claim under this policy.” (Emphasis supplied.)
Cotton States says this case is controlled by State Farm Mut. Auto. Ins. Co. v. Drawdy, 217 Ga. App. 236 (456 SE2d 745), where we held that a policy requirement that an insured give notice to the insurer “as soon as reasonably practicable as a condition of recovering under the policy” (id. at 237) is “enforceable” because the opposing party had access to uninsured motorist coverage under her own insurance policy.
The condition precedent in this case requires 60 days notice after
The language of this policy is unambiguous. We therefore have no legal authority to disregard it; “ ‘[i]f the contract does not require disentanglement of the language by a jury . . . it remains the duty of the trial court to look to the language of the contract with a view to effectuating the intent of the parties.’ ” Nat. Union Fire Ins. Co. &c. v. Prestige Helicopters, 217 Ga. App. 375, 377 (457 SE2d 587).
Nor is there any factual question which voids the plain language of the contract in this case. It unambiguously requires that notice of the covered event and its particulars be received by Cotton States within 60 days of the event, as a condition precedent to coverage of the event. This requirement upon the insured is not dependent on the knowledge of other insureds that it exists, or on the existence of any insurance held.by any other parties; and the insured’s beliefs or misunderstandings about who was liable for this collision did not relieve him of the plain duty to which he agreed and induced Cotton States to issue this policy.
Judgment reversed.
Concurring Opinion
concurring specially.
I concur in the opinion and judgment as rendered due to our previous holding in State Farm Mut. Auto. Ins. Co. v. Drawdy, 217 Ga. App. 236 (456 SE2d 745) (1995). Although I dissented in Drawdy, the majority’s position therein is presently the law, and therefore, we are compelled to follow it. I specially concur to point out that Cotton States’ reliance on Drawdy is correct as that case controls the outcome herein.
In the present case, it is undisputed that in the action against the Hipps, the counterclaimants maintain liability and uninsured
I am compelled to note that I believe my dissent in Drawdy sets forth a better position. My dissent noted that because liability insurance is required to ensure compensation for innocent victims of negligent motorists and uninsured motorist coverage is for the protection of its insured’s assets, the liability insurance carrier should be precluded from enforcing a lack-of-notice exclusion in third-party situations. Id. at 242. As I stated in my dissent, the majority’s position in Drawdy, “ignores the fact that public policy provides that victims should be compensated primarily by liability insurance and that uninsured motorist coverage was intended to be secondary or backup coverage. It also ignores the shift in premium costs from the tortfeasors to the victims.” Id. at 243.
Reference
- Full Case Name
- COTTON STATES MUTUAL INSURANCE COMPANY v. HIPPS Et Al.
- Cited By
- 17 cases
- Status
- Published