Conford, Freund and Sullivan. The opinion of the court was delivered by Conford, S.j.a.d.
[84 NJSuper Page 351] This was initially a suit by a tenant against her landlord in which the latter was charged with negligence in the repair and maintenance of a stairway located in the premises (a house) leased by the tenant and her husband. It was alleged that by reason of such negligence the tenant fell on the stairway, resulting in the injuries complained of.
The instant appeal involves a third-party complaint for indemnity filed by the defendant landlord against the Allstate Insurance Company, which had issued to her a policy, in effect at the time of the accident, covering the landlord's liability on the claim. A separate trial of the third-party complaint in advance of trial of the main action resulted in a judgment of dismissal with prejudice, the trial court, sitting without a jury, finding that the landlord had failed to provide the company with timely notice of the accident under the following provision of the policy:
"9. Notice of Accident: When an accident occurs written notice shall be given by or on behalf of the insured to the 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 accident, the names and addresses of the injured and of available witnesses." (Emphasis added)
The landlord appeals from the judgment entered for Allstate on this finding. She is an Austrian-born woman who lived in the Bronx, New York, at the time of the events giving rise to this litigation. The lack of clarity in the factual record presented to this court may de due, in part, to her difficulty with the English language.
The house in question is in Carteret. On January 21, 1961 the tenant fell down a stairway inside the house, sustaining injuries which required her to be hospitalized. The record does not establish the exact date when the landlord first heard of the accident. The trial court found that she had knowledge of the incident "within the first half of the month of February 1961," the exact date being "not clear." Plaintiff's testimony in this respect is quite confused. At various times she stated that she first learned of the fall on January 21, February 1 and February 15. It is evident, however, that whenever she did first acquire knowledge of the accident, she did not at that time notify Allstate. It is also clear that the tenant did not during this period indicate her intention to make a claim or request the landlord to pay the medical bills.
Counsel for third-party plaintiff makes some effort to demonstrate she originally understood the accident to be the result of the tenant's illness. However, we find the evidence insufficient to support such an inference.
In the first week of March 1961 the landlord received a letter from the tenant's attorney about the accident, requesting the name of her insurance company. She testified, but not very clearly, that within a week after receiving this letter she delivered it to the Allstate agent in Perth Amboy from whom she had purchased the policy. The Allstate representative told her that he would "take care of it." The company denied that it received notice at that time. Its file indicated that it first learned of the accident by way of a letter from the tenant's attorney dated April 5, 1961. A claims file for the case was opened on April 10, and on April 19 the company dispatched an investigator to secure from the landlord a statement of her reasons for failing to report the accident. Allstate disclaimed liability by letter to the landlord of June 7, 1961.
In its letter-opinion deciding the case, the trial court was "of the opinion that under all the facts and circumstances herein set forth, the [landlord] failed to give timely notice as provided for in said contract of insurance * * *." As will appear, more specific findings and determinations will have to be made by the trial court before this case can be properly reviewed.
It is well settled that an insurance company will be relieved of liability where the insured has failed to fulfill the condition precedent of the policy of giving timely written notice of an accident covered by the policy, and this regardless of whether the company has been prejudiced by such failure. Whittle v. Associated Indemnity Corp. , 130 N.J.L. 576 (E. & A. 1943). But absence of prejudice to the company may be considered in relation to the issue of unreasonableness of the length of time taken to give notice after rise of the duty to do so. See Miller v. Zurich Gen. Accident and Liability Ins. Co. , 36 N.J. Super. 288, 296 (App. Div. 1955).
The policy in the instant case provided for notice "as soon as practicable." This phrase has uniformly been construed to mean, "within a reasonable time." Miller v. Zurich Gen. Accident and Liability Ins. Co., supra (36 N.J. Super. , at p. 294); Bass v. Allstate Ins. Co. , 77 N.J. Super. 491, 495 (App. Div. 1962); Associated Metals, etc., Corp. v. Dixon Chemical, etc. , 82 N.J. Super. 281, 316 (App. Div. 1964). "The question as to what is a reasonable time depends on the facts and circumstances of the particular case," Bass v. Allstate Ins. Co., supra (77 N.J. Super. , at p. 495); Ebert v. Balter , 74 N.J. Super. 466, 471 (App. Div. 1962); Miller v. Zurich Gen. Accident and Liability Ins. Co., supra (36 N.J. Super. , at pp. 294-295), and is a question of fact for resolution by the jury or fact-finder, unless the basic facts are undisputed and ...