On April 27, 1990, Colonial Penn issued a policy to Dorothy Guzorek. She was shown as the only named insured. The policy was renewed over the next two years. In September 1992, a 1980 Buick Skylark was listed. On September 22, 1992, the insured bought a 1978 Buick LeSabre. Her husband, Donald, was not listed by her on the application for the policy or on the "personalized quotation/enrollment form" on which she was asked to list all customary operators of the listed cars. The evidence showed that he customarily drove several times each week, even though his driver's license had been suspended on at least two prior occasions because he was driving while intoxicated. He had no operator's license at the times mentioned herein.
On October 20, 1992, Donald was driving the 1978 Buick LeSabre home from a tavern when he was involved in an accident with two other cars.
The insured had not notified Colonial Penn of her acquisition of the Buick LeSabre. She said that she had intended to replace the 1980 Buick Skylark with the LeSabre when the policy was renewed on October 27, 1992. After the accident, she thought there was no coverage under the policy and no accident report was made to the company. Two suits were filed by the other persons injured in the accident, but the insured did not notify the company until after a default judgment had been entered against Donald. It was not until the other drivers' attorneys questioned the policy coverage that Colonial Penn was notified.
Colonial Penn filed this action for declaratory judgment on April 7, 1994. Illinois Farmers, which had issued policies on the other cars, was allowed to intervene.
The trial court found that the policy issued to Dorothy provided for 30 days' coverage of any replacement car or additional car, and that period had not expired at the time the accident occurred; therefore, the 1978 Buick LeSabre was covered. The court also found that the application for the policy showed that Dorothy was married to Donald; that he was not listed as a named insured but he was not excluded; that the policy included special coverage. It also found that Colonial Penn was not prejudiced by the delay in giving notice.
Colonial Penn appealed
It contended that it was entitled to void the policy since Dorothy had failed to reveal her husband's driving history on the application. On appeal, the court pointed out that the application asked only for "driver's licensed as operators in the household." It was true that she did not list Donald as a "customary operator" on the quotation/enrollment form. Therefore, the insured misrepresented facts material to the risk. However, Colonial Penn had conducted a telephone survey about one year after the policy was issued and had listed Donald as a driver but added that he did not have a driver's license. The form also showed that he drove about six to seven thousand miles annually. Under these circumstances, Colonial Penn had knowledge which was sufficient to require it to investigate further.
While the court agreed with Colonial Penn that the late notice was unreasonable as a matter of law, it was shown that the parties involved in the accident had submitted affidavits showing that the accident scene had not changed since the accident, and the court concluded these should have been submitted to the trier(?) of the facts.
In view of this, the trial court erred in granting the insured summary judgment upon this issue.
The summary judgment of the trial court in favor of the insured was reversed, and the action was remanded for further proceedings on the issue of prejudice because of the delay in giving notice to the company.
Colonial Penn Insurance Company, Appellant v. Dorothy Guzorek,
Donald Guzorek, Marianne Van Winkle, Marsha Pocius and John Pocius;
Illinois Farmers Ins. Co., Intervenor--No. 45A03-9511-CV-369--Court
of Appeals of Indiana--August 21, 1996--669 North Eastern Reporter
2d 1042.