# Jones v. Bituminous Casualty Corp.

> Kentucky Supreme Court · December 19, 1991 · 821 S.W.2d 798

URL: https://www.frixlaw.com/law-library/cases/9775023

## Case

- **Full name:** John JONES, Movant, v. BITUMINOUS CASUALTY CORPORATION, Huston Partin, Darrell Petry, Dean Petry, Ronnie Petry, Elmer Petry, Robert Petry, Clanis Partin, Michael Paul, Mitchell Powers, Glenous Lawson, Steve Randle, Rick Curnett, Larry Walker, Carl Mays, Lonnie Hamblin, S & J Mining Company, Respondents
- **Court:** Kentucky Supreme Court
- **Decided:** December 19, 1991
- **Citations:** 821 S.W.2d 798; 1991 Ky. LEXIS 199; 1991 WL 269780
- **Precedential status:** Published
- **Opinion:** Dissent by Stephens
- **Judges:** Lambert, Leibson, Reynolds, Spain, Wintersheimer, Stephens, Combs
- **Cited by:** 54 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9775023

## How later opinions describe it (automated extraction)

- holding that “an insurer cannot withdraw coverage on the ground that a notice condition has not been met unless the insurer can show that it was prejudiced by the act of the insured”
- holding that an insurance company may not avoid payment of a claim based on late notice unless it was reasonably probable that the insurer suffered substantial prejudice
- reversing the trial court's grant of summary judgment and observing that "[sJummary judgment is appropriate on the issue of prejudice only where proof of prejudice is conclusive or there is failure of proof on the subject"

## Opinion text

*804 STEPHENS, Chief Justice,
dissenting.
I respectfully dissent.
This Court rewrites the insurance contract by adopting the rule that the insurer, in order to escape liability for coverage, must prove probable prejudice from a delay in notification. Section IV of said contract, clearly and unambiguously requires the insured to promptly notify the carrier of any “occurrence which may result in a claim.”
The insured’s untimely notice fails to comply with the condition precedent of the contract (Section IV), thus relieving the carrier of liability under the policy, because six and one-half months elapsed between movant’s injury and notice to the insurance company of movant’s claim. Richards, supra.
The majority argues that its rule requiring proof of prejudice from a delay in notification simply requires the insurance company “to take the risk it was paid to take.” If indeed the case at bar, as the majority reasons, signals the advisability of adopting the “modem rale” followed by an increasing number of jurisdictions, this action must be taken by the General Assembly and not by this Court. Because the provisions of all insurance policies are approved by the insurance department, under the general authority given by the legislature, pursuant to KRS Chapter 304, modification of contract parameters should be addressed by the legislature and/or executive branch.
It is jurisprudentially sound to leave departure from our present established rule in Richards, supra, to the General Assembly. The majority’s new rule based on the concept of prejudice negates the purpose of the contract conditions, rendering them meaningless and in effect rewrites the insurance policy, contrary to the intent of the parties clearly expressed by the language of the contract. This new rule changes legislative and executive policies implicitly expressed by the insurance department’s approval of respondent’s insurance contract.
If remedial action is warranted, it should be left to the legislature to respond. For these reasons, I would affirm the opinion of the trial court in finding the six and one-half month’s delay between the date of the occurrence and the date it was reported to the insurance carrier as a fatal breach to the contract.
COMBS, J., joins in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9775023. Public record. Not legal advice.