Klein v. Allstate Insurance
Irene F. KLEIN and Joseph Theodore Klein, her husband v. ALLSTATE INSURANCE COMPANY, an Illinois Corporation
Opinion of the Court
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MITCHELL, HENRY CLAY, Jr., Associate Judge.
Appellants appeal an order of final judgment entered after the trial judge directed a verdict in favor of the Appellee Insurance Company.
Appellants filed suit against their uninsured motorist carrier, the Appellee. The Appellee denied coverage under its policy due to the failure of the Appellants to comply with the notice provisions in the policy. The notice provisions of the policy provided that an accident must be reported within twenty-four hours to the police or judicial officer or to the Department of Motor Vehicles of the State. Also, the Appellants must file with the insurance company a statement regarding the occurrence within thirty days.
At a pre-trial conference the jury issue was determined to be whether or not Appellants noncompliance with the policy provisions prejudiced the Appellee. That issue was tried separately from the issue of damages and negligence.
The rule to be applied to determine the effect of prejudice in delayed notice cases is that while prejudice to the insurer is presumed, if the insured can demonstrate that the insurer has not been prejudiced thereby, then the insurer will not be relieved of liability merely by showing that notice was not given within the provisions of the policy. See Tiedtke v. Fidelity & Casualty Company of New York, 222 So.2d 206 (Fla.1969).
The Appellants’ burden was to demonstrate through evidence that Appel-lee Insurance Company was not prejudiced by the failure to report and give notice. The trial court found that the facts adduced and reasonable inferences which could be drawn from these facts, even when considered in a light most favorable to Appellants below, could not as a matter of law form sufficient basis for finding that the presumption of prejudice was overcome. Our examination of the testimony actually admitted into evidence at the trial leads to the conclusion that the trial court was correct.
We have considered the other points on appeal raised by the Appellants and find that they are without merit. The judgment appealed is accordingly
AFFIRMED.
MILLS, Acting C. J., and SMITH, J., concur.
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