Price, Sullivan and Lewis. The opinion of the court was delivered by Sullivan, J.A.D.
This case involves the issue whether or not an insured complied with the provision in his insurance policy requiring him to give written notice of "an occurrence" to his insurance carrier "as soon as practicable." The trial judge held that the insured had complied with such provision. The insurance carrier appeals.
Plaintiff was the holder of a homeowners' liability insurance policy issued by defendant insurance company. Among the conditions set forth in the policy are the following.
"4. Notice of Occurrence: When an occurrence takes place, written notice shall be given by or on behalf of the Insured to this Company or any of its authorized agents as soon as practicable. Such notice shall contain particulars sufficient to identify the Insured and also reasonably obtainable information respecting the time, place and circumstances of the occurrence, the names and addresses of the injured and of available witnesses.
5. Notice of Claim or Suit-Coverage F: If claim is made or suit is brought against the Insured, the Insured shall immediately forward to this Company every demand, notice, summons or other process received by him or his representative."
On March 29, 1959, while said policy was in force, Dennis Peterson, a 15-year-old neighbor's son, a friend and classmate of plaintiff's son Marion Jr., was bitten by plaintiff's dog. Dennis was taken to the hospital where he remained about two days. A few stitches were put in his left hand and he was given a series of anti-rabies shots.
On the night of the accident plaintiff visited the hospital, met Mr. Peterson, the father of Dennis, and offered to pay the medical expense. He told Mr. Peterson, "If there was any expense I had insurance and it would take care of it." However, Mr. Peterson said, "Don't worry, my son always has some kind of trouble like this, forget it. We're friends." Plaintiff did not notify his insurance carrier of the incident.
After Dennis' release from the hospital he continued to visit plaintiff's home on dozens of occasions, eating there and the like. He and plaintiff's son went on double dates together. They planned a camping trip. Neither Dennis nor his father intimated that a claim would be made for the injury. As plaintiff stated in answer to a question put to him by the court as to whether or not he expected to be sued,
"No, Judge. These were very good close friends. I knew him as well as I know my brother. They have been in our home, we have been in their home."
On June 4, 1959 plaintiff was served with a summons and complaint in a suit by Dennis and his father seeking damages. Plaintiff immediately notified defendant in writing of the claim and forwarded the suit papers to it. Defendant wrote to plaintiff that it was reserving the right to disclaim, and forwarded the papers to counsel, who filed an answer on behalf of plaintiff. Thereafter defendant did disclaim, and plaintiff was obliged to retain his own attorney to defend the claim. Ultimately the case was settled by the entry of a consent judgment against plaintiff for $800, which plaintiff has paid.
Plaintiff then filed the instant suit for $1,000 damages, charging that the dog bite was an insured risk under the policy issued by defendant and that defendant should have defended against the claim and paid the judgment. Plaintiff sought reimbursement for the $800 paid by him, as well as $200 legal expenses incurred in defending the suit. Defendant does not question the reasonableness of the $800 settlement or the $200 counsel fee, and has stipulated that if plaintiff is entitled to recover, his damages would be $1,000. Also, defendant concedes that the homeowners' liability policy issued to plaintiff by defendant was in full force and effect on March 29, 1959, and that the occurrence of that date was one of the risks covered by said policy.
The sole basis on which defendant resists plaintiff's claim is plaintiff's alleged failure to ...