Filed: March 12, 1993
Anita R. Casey
Meyer, Darragh, Buckler, Bebenek & Eck
Charleston, West Virginia
Attorney for the Appellee,
Dairyland Insurance Company
Parkersburg, West Virginia
Attorney for the Appellee,
Leanne Brookover Voshel
J. C. Powell
Charleston, West Virginia
Attorney for the Appellant
JUSTICE BROTHERTON delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. "In an uninsured or underinsured motorist case,
prejudice to the investigative interests of the insurer is a factor
to be considered, along with the reasons for delay and the length
of delay, in determining the overall reasonableness in giving
notice of an accident. In the typical case, the insured must put
on evidence showing the reason for the delay in giving notice.
Once this prerequisite is satisfied, the insurer must then
demonstrate that it was prejudiced by the insured's failure to give
notice sooner. If the insurer fails to present evidence as to
prejudice, then the insured's failure to give notice sooner will
not be a bar to the insured's recovery. If the insurer puts on
evidence of prejudice, however, the reasonableness of the notice
ordinarily becomes a question of fact for the fact finder to
decide." Syllabus point 2, State Auto Mutual Ins. Co. v. Youler,
183 W.Va. 556, 396 S.E.2d 737 (1990).
2. In cases which involve liability claims against an insurer, several factors must be considered before the Court can determine if the delay in notifying the insurance company will bar the claim against the insurer. The length of the delay in notifying the insurer must be considered along with the reasonableness of the delay. If the delay appears reasonable in light of the insured's explanation, the burden shifts to the insurance company to show that the delay in notification prejudiced their investigation and defense of the claim. If the insurer can produce evidence of prejudice, then the insured will be held to the letter of the policy and the insured barred from making a claim against the insurance company. If, however, the insurer cannot point to any prejudice caused by the delay in notification, then the claim is not barred by the insured's failure to notify.
The appellant, Roger Wingrove, files this petition for
appeal from the April 10, 1992, order of the Circuit Court of Wood
County which ruled that Dairyland Insurance Company had no duty to
defend or insure any claim arising from the automobile accident
which forms the basis of the underlying case.
The appellee, Leanne Brookover Voshel, then Leanne
Wright, bought an automobile insurance policy from Dairyland
Insurance Company with an effective date February 24, 1986, through
February 24, 1987. The vehicle insured by that policy was a 1979
Chevette which she owned, although she was not a licensed driver.
The policy listed Allen Brookover as the driver for the purpose of
the policy. The insurance policy covered bodily injury, liability,
and property damage with limits of $20,000/$40,000/$10,000,
uninsured motorist coverage of $20,000/$40,000/$10,000, and medical
payments of $1,000 per person. There was no underinsured motorist
coverage. The policy specifically provided that it could cover all
cars owned by the policy holder if the policy holder advised them
of the replacement or addition of cars within thirty days of the
acquisition. The policy further provided that:
When you're involved in a car accident, you or someone on your behalf must notify us as soon as possible. The quickest way is to phone our nearest office . . . . If we need other information to investigate the accident, we'll ask you for it. We may require it in writing.
You must cooperate with us in our effort to investigate the accident or loss, settle any claims against you and defend you. You must also send us, promptly, any legal papers served on you or your representative as a result of a car accident. If you fail to cooperate or fail to promptly send us such legal papers, we may have the right to refuse you any further protection for the accident or loss.
On May 3, 1986, Leanne Wright married Allen Brookover and
shortly thereafter informed Dairyland of the change of name. On
February 7, 1987, Allen Brookover was killed while he was driving
a 1967 Chevrolet pickup truck on W.Va. State Route 68 in Wood
County. The accident occurred when he hit a 1977 Ford farm tractor
being operated by James Sandy. Allen Brookover and two passengers,
Roger Brookover and Robert Buffington, were burned to death when
the pickup truck caught fire. The appellant, Roger Wingrove,
another passenger, was severely burned. Mr. Wingrove did not own
a car and thus, had no automobile liability insurance.
At the time of the accident, the pickup truck was not
registered to the Brookovers with the West Virginia Department of
Motor Vehicles and no contact had been made with Dairyland advising
them that the Brookovers had purchased a new vehicle to be insured.
It is unclear when Allen Brookover bought the 1967 pickup, since he
paid in cash, although it appears it was purchased two weeks prior
to the accident. There was an assignment of certificate of title
on the pickup in June, 1986, when the president of the Worthington
Golf Club executed that certificate, but the name and address of
the purchaser were not included on the title, nor was the odometer
reading noted or the certificate of title notarized. Evidence
adduced in the proceeding below indicates that the pickup was a
non-operational "junk vehicle" while owned by the Golf Club.
On October 17, 1988, Roger Wingrove filed suit against
Leanne Brookover, as administratrix of the Estate of Allen
Brookover, and General Motors on a crash worthiness theory, in the
Circuit Court of Wood County. Mrs. Brookover was served on
October 28, 1988, and she filed an answer on December 12, 1988,
after hiring David Charonis as her lawyer. It was not until
January 17, 1989, that Dairyland was notified. On that date, Mr.
Charonis wrote Dairyland notifying them of the pending lawsuit by
Wingrove and advising Dairyland to "take appropriate action that
you deem necessary to protect your interests." However, Dairyland
claims that the correspondence made no reference to the 1967 pickup
truck and "contained no assertion that the truck was insured under
the Dairyland policy or was a newly acquired vehicle subject to
coverage under the policy."See footnote 1
On January 30, 1989, Dairyland received notice of the
accident by a General Motors crossclaim in the civil suit.
Although Dairyland claims this was the first time they were advised
of the accident, the appellees state that this is untrue and they
were informed of the accident by the earlier letter of Mr.
Charonis. Regardless, on February 7, 1989, Mr. Charonis wrote
Dairyland complaining that nothing had been done regarding the
On March 2, 1989, Dairyland responded, advising that it
was investigating coverage and noting that Mrs. Brookover had been
delinquent in notifying Dairyland. Thereafter, on May 23, 1989,
Dairyland claimed that it had just learned that the 1967 pickup was
a newly acquired vehicle, four months after the alleged telephone
conversation with Mr. Charonis.
On May 24, 1989, Dairyland wrote Mrs. Brookover, advising
her that it was proceeding under a "Reservation of Rights" clause
because of her failure to assist and cooperate in the defense of
the claim. Thereafter, on September 20, 1989, Dairyland filed a
declaratory judgment action to determine whether there was a duty
to insure and defend Mrs. Brookover. Apparently, Mr. Wingrove was
not served, and Mrs. Brookover's deposition was taken before Mr.
Wingrove was advised of the action. In her deposition, Mrs.
Brookover stated that she knew little about the purchase of the
pickup truck, noting that she thought her husband had paid cash for
it and she had no canceled check or bill of sale.
On June 14, 1990, upon learning of the denial of
insurance coverage and the pending declaratory judgment action, Mr.
Wingrove filed a motion to intervene in the underlying suit. On
June 25, 1990, an agreed order was entered permitting Mr. Wingrove
to intervene as a third party defendant in the declaratory judgment
By opinion dated February 10, 1992, and subsequent order
dated April 10, 1992, the Circuit Court of Wood County ruled that
the Dairyland insurance policy was in full force and effect on
February 7, 1987, and that the Chevrolet pickup was an insured
motor vehicle under the terms of the coverage. However, the court
further stated that Mrs. Brookover had not properly notified
Dairyland until suit was filed by Mr. Wingrove. Thus, Dairyland
had no duty to defend or insure any claim arising from the February
7, 1987, accident. Mr. Wingrove filed this appeal to determine:
(1) whether there is any insurance coverage on the part of
Dairyland, (2) whether Dairyland suffered any prejudice by Mrs.
Brookover's failure to notify them promptly, and (3) whether the
denial of coverage by Dairyland was just.
Dairyland argues that it was not obligated to provide
coverage since it was not advised of the purchase of the pickup
truck until approximately January 17, 1989, almost two years after
the accident. Actual notice of the accident did not occur until
sometime between January 17, 1989, and May 23, 1989, approximately
two years after the accident.
The appellant seems to contend that since the accident
was widely covered on the television news and in the newspaper, the
agent who sold the policy to the Brookovers should have initiated
an investigation or contacted Mrs. Brookover. The appellant argues
that although Dairyland may not have been expressly notified of the
purchase of the new truck until May 23, 1989, Dairyland was on
reasonable and sufficient notice to inquire as to what vehicle was
involved in the accident after receiving the January 17, 1989,
letter from Mr. Charonis.
Dairyland counters that the insurance policy required
that it be notified "as soon as possible," and that two years after
the accident was not "as soon as possible."See footnote 2 In State Auto Mutual
Ins. Co. v. Youler, 183 W.Va. 556, 396 S.E.2d 737 (1990), we
discussed insurance policy notification provisions. The Court
concluded that "regardless of the language used (in the policy),
whether 'immediate,' 'prompt,' 'forthwith,' 'as soon as
practicable' or words of similar import, the courts are generally
in agreement that reasonable notice is sufficient." (Citations
omitted.) Id. at 742. The issue of whether Mrs. Brookover
notified the insurance company about the accident within a
reasonable time period, given the facts of this particular case, is
a question for the finder of fact. Id.
Youler explained that the purpose of notice provisions in
an insurance policy was to give the insurer an opportunity to make
a timely and adequate investigation of the circumstances
surrounding the accident in question. Id. The authorities are
split as to whether prejudice to the insurer is necessary in order
to deny underinsured or uninsured coverage for delay in notifying
the insurer of the accident.
In an uninsured or underinsured motorist case, prejudice to the investigative interests of the insurer is a factor to be considered, along with the reasons for delay and the length of delay, in determining the overall reasonableness in giving notice of an accident. In the typical case, the insured must put on evidence showing the reason for the delay in giving notice. Once this prerequisite is satisfied, the insurer must then demonstrate that it was prejudiced by the insured's failure to give notice sooner. If the insurer fails to present evidence as to prejudice, then the insured's failure to give notice sooner will not be a bar to the insured's recovery. If the insurer puts on evidence of prejudice, however, the reasonableness of the notice ordinarily becomes a question of fact for the fact finder to decide.
Youler, 396 S.E.2d at syl. pt. 2. This case, however, involves a
straightforward liability claim against the Brookovers policy,
since Mr. Wingrove had no insurance coverage of his own.
Unlike underinsured claims, which by definition must
involve another insurance company, a liability claim may not
involve any other insurance company. With no other insurance
companies involved, the insurer is more likely to be prejudiced by
the delay because there is no other party charged with
investigating the accident. Further, the appellant's argument that
the official police investigation should be sufficient for the
insurer's investigative purposes is erroneous. While some of the
information obtained by the State police might be useful in an
insurance investigation, there are other facts relevant to the
policy which the State police would have little or no interest in
In cases which involve liability claims against an
insurer, several factors must be considered before the Court can
determine if the delay in notifying the insurance company will bar
the claim against the insurer. The length of the delay in
notifying the insurer must be considered along with the
reasonableness of the delay. If the delay appears reasonable in
light of the insured's explanation, the burden shifts to the
insurance company to show that the delay in notification prejudiced
their investigation and defense of the claim. If the insurer can
produce evidence of prejudice, then the insured will be held to the
letter of the policy and the insured barred from making a claim
against the insurance company. If, however, the insurer cannot
point to any prejudice caused by the delay in notification, then
the claim is not barred by the insured's failure to notify.
In this case, no explanation was given which would make an almost two-year delay appear reasonable. Further, Dairyland presented evidence of prejudice caused by the delay. Mr. Nutter, one of the two previous owners of the 1967 pickup after the Golf Club's ownership, cannot be found, making the chain of title difficult to establish. The chain of title is critical to establishing whether the truck was an insured vehicle under the terms of the policy, which required that the insured be notified of newly acquired vehicles within thirty days of acquisition. Because the truck was bought with cash and because Mr. Brookover is dead and the previous owner unavailable, it is unknown whether the truck was purchased more than thirty days prior to the accident. Complicating the problem was the improper truck registration.See footnote 3
Without that evidence, it is unclear whether the truck was a
registered vehicle within the terms of W.Va. Code § 17A-3-1 et seq
and this policy.
Consequently, we affirm that portion of the lower court's
ruling which denied the insured coverage based upon the insured's
failure to notify Dairyland "as soon as possible." We do not rule
on the issue of whether the truck was an insured vehicle under the
policy since many of the facts relating to the registration and
ownership of the truck are missing due to the death of Allen
Brookover and the failure to discover the whereabouts of the
previous owner of the pickup.
Accordingly, we affirm, in part, the April 10, 1992,
order of the Circuit Court of Wood County.
Footnote: 1Dairyland argues that it was not until a phone conversation between Mr. Charonis and Linda Mays of Century Claims Service, sometime between January 17, 1989, and March 2, 1989, that Dairyland was first advised that the Brookovers' accident involved a 1967 Chevrolet pickup truck and that the truck might be a newly acquired vehicle.
Footnote: 2We do not reach the issue of whether the 1967 pickup truck was an insured vehicle under the terms of the Dairyland policy. As discussed in the text of this opinion, the determination of the insured status of the truck hinges on facts not in evidence before this Court. Further, those facts are missing, due in part, at least, to the lack of timely notice and the unavailability of a witness who could identify when the vehicle was bought by Mr. Brookover and ultimately, whether the accident occurred within the thirty-day period for notification for a newly acquired vehicle.
Footnote: 3Dairyland also argues there was no duty to provide coverage because the 1967 pickup truck was not a vehicle as defined by the policy. Although we do not reach this issue, it provides relevant background information. The Dairyland policy defines a car as a "4-wheel motor vehicle licensed for us on public roads." To be licensed in this State, a certificate of title must be obtained for that vehicle. West Virginia Code § 17A-3-1 et seq. (1991) sets out the requirements necessary to obtain a certificate of title, which include the name of the purchaser and the odometer reading. Dairyland notes that this information was absent from the certificate of title of the pickup truck. The truck driven by Mr. Brookover on the date of the accident was still titled in the name
of the Worthington Golf Club, although the truck had been owned by two other individuals between the time Worthington last owned the truck and the time Allen Brookover bought it. West Virginia Code § 17A-3-1 provides that the purchaser of a registered vehicle may operate that vehicle for only ten days following the purchase. After that ten-day period has expired, the registration of the previous owner and the vehicle is terminated. Thus, the operation of the vehicle outside of that ten-day period is illegal and a misdemeanor.