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10/21/88 Thomas E. Miller, Jr., v. Amalgamated Casualty

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


October 21, 1988

THOMAS E. MILLER, JR., APPELLANT

v.

AMALGAMATED CASUALTY INSURANCE COMPANY, APPELLEE 1988.CDC.403 DATE FILED: OCTOBER 21, 1988

Before: RUTH B. GINSBURG and SILBERMAN, Circuit Judges, and MILTON POLLACK*, United States Senior District Judge

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Rules of the District of Columbia Circuit Court of Appeals may limit citation of unpublished opinions. Please refer to the Rules of the United States Court of Appeals for this Circuit.

MEMORANDUM

The record fully supports the district court's determinations that (1) at some point between November 1982, when plaintiff's counsel learned of the alleged tortfeasor's expired registration, and the entry of default judgment against the tortfeasor in D.C. Superior Court in August 1985, plaintiff should have known that the tortfeasor was uninsured; (2) plaintiff gave no notice or proof of claim under the uninsured motorist coverage of his policy until, at the earliest, his April 23, 1986 letter damanding satisfaction of the $18,000 default judgment. Based on these determinations, the district court properly concluded, as a matter of law, that the insurer had a contractual right to deny liability for want of a timely uninsured motorist claim. See Policy VI. C. (proof of claim required "as soon as practicable"); Policy VI. H. (company not liable absent compliance with policy conditions). An insurer, under Maryland law, is not required to demonstrate that the insured's failure to present a timely proof of claim actually prejudiced the insurer. See Government Employees Ins. Co. v. Harvey, 366 A.2d 13, 17 (Md. 1976) (Article 48A, Section 482, Annotated Code of Maryland, which requires showing of actual prejudice to insurer, applies to disclaimers based on insured's untimely notice of accident, but does not apply to disclaimers grounded on insured's failure to submit timely proof of claim; such failure, unless waived by insurer, will prevent a recovery on the policy).

JUDGMENT

This appeal was considered on the record from the United States District Court for the District of Columbia and was briefed and argued by counsel. Upon full review of the issues presented, the court concludes that disposition without published opinion is warranted. See D.C. Cir. R. 14(c). For the reasons stated by the district court in its November 25, 1987 Order, and in the accompanying Memorandum, it is

ORDERED and ADJUDGED that the judgment from which this appeal has been taken be affirmed.

FURTHER ORDERED, by the Court, on its own motion, that the Clerk shall withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C. Cir. R. 15(b)(2). This instruction to the Clerk is without prejudice to the right of any party at any time to move for expedited issuance of the mandate for good cause shown.

PER CURIAM DECISION

19881021

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