Opinion
Rehearing Denied March 23, 1971.
Page 473
White & Steele, Lowell M. Fortune, Denver for plaintiff in error.
William W. Morris, Commerce City, for defendant in error.
PIERCE, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and was subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
The parties appear here in reverse order of their appearance below and will be referred to by their trial court designations.
Plaintiff, Richard M. Berg, insured 13 motor vehicles with defendant, for the period from September 1, 1964, to September 1, 1965. All but two vehicles were insured against acts of malicious mischief and vandalism. The maximum coverage was limited to an amount varying for each insured vehicle. From October, 1964, to May, 1965, plaintiff had mechanical trouble with his vehicles, requiring engine overhauls in several of his trucks. The difficulty was traced to the oil reservoir systems of the vehicles.
Although evidence indicated the engine trouble began as early as April of 1964, plaintiff failed to notify the defendant insurance company about his losses until April 12, 1965, when he orally notified an agent of defendant, stating he felt his losses were the result of malicious mischief or vandalism and were covered by the policy.
On an unspecified date, plaintiff removed some spare parts and engine oil from one or more of the engines. This motor oil was given to one of defendant's adjusters, who in turn had the oil analyzed by a specialist. Some evidence indicated the damage was probably caused by the presence of baking soda in the oil reservoirs of the vehicles.
In May of 1967, plaintiff filed a complaint to recover for damage to his vehicles. The principal defense asserted by defendant was that plaintiff had not complied with the conditions of the insurance policy involved requiring that sworn proof of loss be filed within 60 days after the occurrence of any loss. No proof of loss was submitted to defendant by plaintiff at any time.
The trial court ruled that plaintiff was not required to file a proof of loss, reasoning that the combination of the oral notice of April, 1965, followed by at least some investigation by defendant, constituted a waiver of this provision of the contract by defendant. Defendant assigns this ruling as error. We agree.
An express condition to the effect that written notice of loss must be given to an insurer is as much a part of a contract as any other portion thereof, and failure to comply with such condition is failure to complete the contract, unless a satisfactory excuse for noncompliance or delay is given. Capitol Fixture & Supply Co. v. Nat'l Fire Insurance Co., 131 Colo. 64, 279 P.2d 435; Barclay v. London Guarantee & Accident Co., Ltd., 46 Colo. 558, 105 P. 865. If the delay or noncompliance is not justified, however, the insurer cannot be held liable under the insurance contract. Certified Indemnity Co. v. Thun, 165 Colo. 354, 439 P.2d 28.
The evidence before us does not indicate any excuse, justifiable or otherwise, for the insured's failure to notify his insurance carrier as prescribed by the terms of the policy. Colorado follows the general rule that where a policy expressly provides for written notice to the insurer, an oral notification is an insufficient substitute. Capitol Fixture & Supply Co. v. Nat'l Fire Insurance Co., Supra; 8 J. Appleman, Insurance Law and Practice, s 4737.
We find no facts in this case supportive of the trial court's ruling that there was no need for compliance with the express notice requirements of the insurance contract upon the theory of waiver, Nebraska Drillers, Inc. v. Westchester Fire Ins. Co., D.C., 123 F.Supp. 678, and we therefore rule that plaintiff failed to carry his burden of proving all conditions precedent to coverage under this insurance policy. Ewing v. Colorado Farm Mutual Casualty Co., 133 Colo. 447, 296 P.2d 1040.
Judgment is reversed and the cause remanded with directions to enter judgment in favor of defendant.
SILVERSTEIN, C.J., and DUFFORD, J., concur.