On appeal from the Superior Court, Law Division, Camden County.
McElroy, Dreier and Shebell. The opinion of the court was delivered by Shebell, J.A.D. Dreier, J.A.D. (concurring).
The issue before us is whether the trial court erred when it granted summary judgment to defendant insurance carrier on the grounds that the insured failed to notify the company of the infirm condition of the insured horse. Plaintiff maintains that the "appreciable prejudice" requirement established in Cooper v. Government Employees Insurance Company, 51 N.J. 86, 94 (1968) should have been applied to require that the carrier prove it was appreciably prejudiced by the untimely notice of claim. We disagree and affirm the granting of summary judgment.
Cooper dealt with the notice requirement of an automobile liability policy governed by N.J.S.A. 17:28-2 permitting notice to be "given as soon as was reasonably possible." 51 N.J. at 88 n. 1. In such circumstances the time within which notice may be given must be liberally construed as innocent third parties may be adversely affected. However, it was held in Zuckerman v. National Union Fire Insurance Company, 194 N.J. Super. 206, 213-15 (App.Div.1984) that "[a] requirement
that the insurance company must show prejudice under the circumstances . . . would be clearly contrary to the expectations of the parties" where the policy covered professional liability claims made during the policy period irrespective of when the cause of action arose.
Here the "thoroughbred mortality policy" clearly establishes that the insured must carry out its obligations as "a condition precedent to any liability," and provides that:
[a]ny failure by the Insured to do any of the foregoing shall render the Insured's claim null and void and release the Company from all liability in connection therewith, whether the Insured has personal knowledge of such events or such knowledge is confined to the representatives of the Insured or other persons who have care, custody or control of the animal.
We are satisfied that this policy, which may be renewed each year only upon presentation of a veterinary certificate accompanying the insured's renewal application, is a contract between the parties which is specially tailored to the peculiar circumstances of the thoroughbred breeding business and that the court should not rewrite the terms of the contract for the parties. We are not dealing with a contract that will affect the rights of third parties who have liability claims as in Cooper. It is clear that the conditions set forth in the policy serve a necessary and useful purpose with respect to the risk assumed by the insurer. This can be seen from the following relevant provision:
6. It is a condition precedent to any liability that (a) the Insured shall at all times provide proper care and attention for each animal hereby insured, and (b) in addition, in the event of any illness, disease, lameness, injury, accident or physical disability whatsoever of or to an insured animal the Insured shall immediately at his own expense employ a qualified Veterinary Surgeon and shall, if required by the Company, allow removal for treatment, and (c) in the event of the death of an insured animal the Insured shall immediately at his own expense arrange for a post mortem examination to be made by a qualified Veterinary Surgeon, and (d) in either event the Insured shall immediately give notice by telephone to the Company at its principal office, 200 South Fourth Street, Geneva, Illinois. The Company will instruct a Veterinary Surgeon on its behalf, if deemed necessary and any carcass shall not be disposed of until the Company shall give approval. This Policy does not cover death of an animal from unknown cause or causes, unless a post mortem report (filed as provided
in Condition 6c hereof) states a cause of death falling within the coverage of this Policy.
Underwriters at Lloyds, London v. Harkins, 427 S.W. 2d 659 (Tex.Civ.App.1968) illustrates the purposes of these clauses. There, as here, the policy language clearly and unambiguously required as a condition precedent to ...