enunciating that Kentucky joins the “modern trend,” such 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; espousing that the argument – that notice clauses are essential from an actuarial standpoint to price insurance according to risk – is valid with reference to imposing on the insurer risks which are unreasonable and unforeseeable
How later courts described this case
- enunciating that Kentucky joins the “modern trend,” such 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; espousing that the argument – that notice clauses are essential from an actuarial standpoint to price insurance according to risk – is valid with reference to imposing on the insurer risks which are unreasonable and unforeseeable
- 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"
Written by the judges who cited it.
The opinion
COMBS, Justice,
dissenting.
I join in the dissenting opinion by the Chief Justice, and also dissent for the following additional reasons. I can identify with the plight of appellant and his family. My father was a coal miner and was killed in a slate fall in 1937. As a practicing attorney for almost a third of a century, I devoted a large percentage of my practice to coal miners and their dependents. But as a jurist I am bound by oath to support both the United States and Kentucky constitutions. Both constitutions prohibit the impairment of obligations assumed under contracts. Here the contract expressly provides as a condition precedent that there be timely notice of the claim. No convincing explanation or justification was given for the delay of more than six months. To ignore the contract provision would not only impair the obligations assumed thereunder but would in fact be rewriting the agreement.
STEPHENS, C.J., joins in this dissent.