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Cooper v. Government Employees Insurance Co.

Decided: January 22, 1968.

DAVID COOPER AND DOLORES COOPER, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
GOVERNMENT EMPLOYEES INSURANCE COMPANY, DEFENDANT-RESPONDENT



For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Goldmann, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Weintraub, C.J.

Weintraub

Plaintiffs Cooper obtained a judgment holding that the defendant carrier is obligated to provide coverage under an automobile liability policy. The Appellate Division reversed, and we granted certification. 48 N.J. 441 (1967).

The issue is whether plaintiffs gave the carrier notice of the accident "as soon as practicable" as the policy requires.*fn1

The accident occurred on August 11, 1962. Neither the named insured nor his wife who was driving the car notified the carrier until served with the summons and complaint almost two years later. The insureds say they did not notify the carrier because they had no idea a claim would emerge. The trial court found they held that view reasonably and in good faith, and therefore did not breach the notice provision of the policy, whereas the Appellate Division held that persons of the insureds' education and experience should have understood that notice was required under the circumstances.

The facts are these: The claimant, Mrs. Fleischer, was a passenger in the Cooper car. The accident occurred when, according to Mrs. Cooper, another car, driven by one Soper, which was weaving in and out, tried to cut across the path of the Cooper car, resulting in contact between the left rear of the Soper vehicle and the right front of the Cooper car. Neither car was damaged. Mrs. Cooper called the police, not because the collision itself was of any moment, but because she was incensed by the way Soper operated his automobile. Mrs. Cooper was not then aware of any injury to Mrs. Fleischer, who was in the back seat, but when the police arrived and inquired about injuries, Mrs. Cooper heard Mrs. Fleischer say she was nauseous, her head hurt, and her ankle hurt. On the way home, according to Mrs. Fleischer, she threw up, whereas Mrs. Cooper said she saw her spit. In any event, Mrs. Cooper knew that Mrs. Fleischer was at least upset, and Dr. Cooper, a dentist, offered to help her locate a medical doctor if she wanted to see one. Thereafter Mrs. Cooper and Mrs. Fleischer, who were friends although not intimate, saw each other intermittently. Their relations were not affected in the least. Mrs. Fleischer made no further reference to an injury, and at no time did she indicate that a claim would be made. In fact she testified that Mrs. Cooper was not at fault, and that she, Mrs. Fleischer, was surprised to learn that her attorney had joined the Coopers as defendants.

Although the policy requires notice "[i]n the event of an accident, occurrence or loss," and so provides without

any exception, the cases hold a trivial or inconsequential event is beyond the intent of the provision. Bass v. Allstate Ins. Co., 77 N.J. Super. 491 (App. Div. 1962); Figueroa v. Puter, 84 N.J. Super. 349, 354 (App. Div. 1964); 8 Appleman, Insurance Law and Practice § 4743, p. 78; § 4744, p. 83 (1962); 13 Couch, Insurance 2 d, § 49:138, p. 723 (1965). This does not mean that an insured, conscious of a possibility of a claim, may omit to report the accident upon the ground that in his opinion the claim is without merit either because the fault was not his or because the claimed injuries are unreal. Obviously an insured may not assume the role of judge and jury. But the insured does not lose the agreed policy protection if he omits to give notice because he reasonably and in good faith believes no claim against him is contemplated either because the damage is trivial or because there is no suggestion in the circumstances that he is causally involved. This accords with the reasonable expectation of the parties to the insurance arrangement.

Upon this view of the insured's obligation, the trial court found the policy was not breached. Mrs. Cooper did not understand that anyone harbored the thought of suing her. The impact between the cars was slight. There was no damage to either car. She summoned an officer only because she felt outraged by the manner in which Soper had maneuvered his vehicle. Although her passenger revealed some distress, it seemed to be only a passing thing. It did not occur to her that anyone thought her to be culpable. No one advanced such a claim, and since she heard no more of the matter from Mrs. Fleischer, she understandably thought there was no significant hurt. At least the trial court was well warranted in taking this view of the testimony and in concluding therefrom that the Coopers should not forfeit their insurance for failure to give notice.

If Mrs. Fleischer had later asserted a claim for the minor hurt of which the Coopers were aware, the trial court's conclusion would hardly be questioned. The doubts arise only

because Mrs. Fleischer later asserted substantial losses and did so with respect to the Coopers almost two years after the event. Yet if the Coopers behaved reasonably upon the basis of what they knew immediately after the occurrence, the quality of their behavior could not be affected by developments of which they were unaware. If the additional circumstances seem to pull against them, it is because the circumstances suggest the carrier may have been hurt by late notice. In fact, in its argument before us, the carrier ...


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