Virginia Lawyers Weekly VA Lawyers Weekly
Where a homeowners policy required a man to give notice “as soon as is practical” after an “occurrence,” but he waited 238 days after he was involved in a bar fight to give notice to his carrier, and only gave notice after he was sued, the carrier had no duty to defend because the delay was untimely as a matter of law.
Background
Norman C. Stevens alleges that, on or about Dec. 20, 2019, Brian A. Staples physically attacked and injured him at AJ Gators Sports Bar and Grill. On July 28, 2020, Stevens filed a personal injury lawsuit against Staples based on these alleged events.
Nationwide General Insurance Company and Nationwide Mutual Insurance Company argue that they are not required to provide any defense or indemnity coverage to Staples because (1) there is no coverage for intentional acts and (2) he provided late notice. Plaintiffs have filed a motion for judgment on the pleadings and Stevens has filed a motion to stay.
Late notice
The homeowners policy issued by Nationwide General provides that the insured must give notice to the insurer “as soon as is practical” after an “occurrence.” The parties agree that Staples did not inform plaintiffs until Aug. 14, 2020. The court finds as a matter of law that, as there is no viable allegation of extenuating circumstances creating a reasonable justification for the delay, Staples did not provide notice “as soon as is practical” when he waited 238 days after the incident to give notice to plaintiffs.
Staples argues that there are no allegations suggesting he “had any basis for understanding that the altercation in AJ Gators formed the basis for any claim or potential claims that would implicate coverage under” the homeowners policy. When made aware of the claims against him after Stevens filed the state court action on July 28, 2020, Staples provided relatively prompt notice to plaintiffs. Virginia law is clear, however, that failure to give timely notice because the insured subjectively did not understand that he would be covered under the policy is not a cognizable excuse or justification for the delay.
Staples also argues that the court should consider lack of prejudice to Nationwide General. However, in the absence of a contrary provision in the insurance contract, courts only consider lack of prejudice “where reasonable minds could differ regarding the reasonableness of the delay.” Because the 238-day delay here is untimely as a matter of law, Nationwide General does not have to show that it was prejudiced by defendant’s delay.
Unlike the homeowners policy, the umbrella policy’s notice provision specifically provides that Nationwide Mutual has “no duty to provide coverage under this Policy if [the insured’s] failure to comply with the following duties is prejudicial to [the insurer].” Therefore the fact that Staples delayed giving notice to Nationwide Mutual for nearly eight months is not sufficient on its own to find as a matter of law that Staples violated the umbrella policy’s notice provision.
Nationwide Mutual further argues that the umbrella policy provides excess coverage only and that if there is no coverage under the primary insurance policy, then the excess coverage is not triggered. The plain language of the umbrella policy contradicts this argument.
Coverage
The court finds that Staples’ actions, as alleged in the Stevens complaint, do not qualify as an “occurrence.” The underlying complaint alleged actions that are intentional on their face, and Stevens’ injuries are the natural and probable consequence of the alleged intentional act. An intentional act is not an accident and thus does not qualify as an “occurrence.”
Defendants argue that the Stevens complaint also alleged that Staples was “grossly and wantonly negligent and careless” and that Staples may be found guilty of gross negligence, rather than intentional tort. This argument is not persuasive.
Defendants argue that the duty to defend still exists because of the reasonable force exception, which “requires consideration of an insured’s claim that he or she caused bodily injury or property damage trying to protect person or property in evaluating whether there is a duty to defend in a given case.” Based on the pleadings alone, the court cannot find that the reasonable force exception is not applicable.
Nationwide Mutual further argues that the extrinsic materials demonstrate that Staples did not act in self-defense. The court declines to reach this issue because of the eight corners rule, which limits the question of insurance coverage to the four corners of the policy and the underlying complaint.
Stay
The court denies the motion to stay because: (1) staying the proceedings would not support judicial economy; (2) denying the stay will not cause hardship to defendants and (3) a stay would prejudice plaintiffs by delaying proceedings that can be resolved without waiting for the outcome of Stevens v. Staples.
Nationwide General’s motion for judgment on the pleadings granted. Nationwide Mutual’s motion for judgment on the pleadings denied. Stevens’ motion to stay denied.
Nationwide General Insurance Company v. Staples, Case No. 2:21-cv-401, Sept. 7, 2022. EDVA at Norfolk (Allen). VLW 022-3-478. 24 pp.
