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Farmers Automobile Insurance Association v. Rodney L. Burton; and Carrie Buckley

March 1, 2012

FARMERS AUTOMOBILE INSURANCE ASSOCIATION,
PLAINTIFF-APPELLEE,
v.
RODNEY L. BURTON; AND CARRIE BUCKLEY, AS ADMINISTRATRIX OF THE ESTATE OF TIMOTHY A. BUCKLEY, DECEASED,
DEFENDANTS-APPELLANTS.



Appeal from Circuit Court of Macon County No. 10MR375 Honorable Albert G. Webber, Judge Presiding.

The opinion of the court was delivered by: Justice Pope

JUSTICE POPE delivered the judgment of the court, with opinion. Justices Steigmann and Cook concurred in the judgment and opinion.

OPINION

¶ 1 In March 2011, the trial court awarded summary judgment to plaintiff, Farmers Automobile Insurance Association (Farmers), in the declaratory judgment action it brought against defendants, Rodney L. Burton and Carrie Buckley, the administrator of the estate of Timothy A. Buckley, because Burton did not provide reasonable notice to Farmers of the automobile accident which caused Timothy's death. Burton (No. 4-11-0330) and Buckley (No. 4-11-0289) filed separate appeals challenging the court's summary judgment ruling. We have consolidated these appeals for purposes of our review. We affirm.

¶ 2 I. BACKGROUND

¶ 3 On April 30, 2010, Buckley filed a cause of action against Burton alleging he caused Timothy's death on May 11, 2008. Buckley's complaint was served on Burton on June 7, 2010. According to the complaint, a motor vehicle driven by Burton struck and drove over Timothy. Buckley alleged Burton did not stop or give assistance to Timothy or report the incident to law enforcement or other governmental authorities.

¶ 4 In September 2010, Farmers filed a complaint for declaratory judgment against Burton and Buckley. Farmers provided automobile insurance to Burton at the time of Timothy's death. Farmers alleged Burton first gave it notice of the May 2008 accident on July 8, 2010, after Burton was convicted of leaving the scene of an accident involving a death.

¶ 5 Burton's insurance policy contained the following provision concerning liability coverage:

"A. We will pay damages for 'bodily injury' or 'property damage' for which any 'insured' becomes legally responsible because of an auto accident. Damages include pre-judgment interest awarded against the 'insured.' We will settle or defend, as we consider appropriate, any claim or suit asking for these damages. In addition to our limit of liability, we will pay all defense costs we incur. Our duty to settle or defend ends when our limit of liability for this coverage has been exhausted. We have no duty to defend any suit or settle any claim for 'bodily injury' or 'property damage' not covered under this policy."

However, the policy also contained the following provision concerning an insured's duty after an accident or loss:

"A. We must be notified promptly of how, when and where the accident or loss happened. Notice should also include the names and addresses of any injured persons and of any witnesses."

Farmers accepted the tender of Burton's defense with respect to Buckley's claim, subject to a reservation of its rights.

¶ 6 In its complaint for declaratory judgment, Farmers claimed it had no duty or obligation to defend Burton in the action filed against him by Buckley because Burton breached the notice condition of the policy. According to the complaint, Burton did not provide notice of the occurrence for almost 26 months after it occurred.

ΒΆ 7 Buckley responded to the complaint, denying Farmers was prejudiced by the notice it received. Buckley further denied Burton failed to reasonably comply with ...


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