CITY OF WEST HAVEN

v.

U.S. FIDELITY & GUARANTY CO.

174 Conn. 392, 389 A.2d 741 (1978)

SPECIAL, ASSOCIATE JUSTICE. The defendant, United States Fidelity & Guaranty Company (hereinafter USF&G), has appealed from a judgment holding it liable to the city of West Haven in the amount of $20,000. The city claimed the sum as indemnification for payments made to satisfy a judgment against it by Fred Annunziata, who was injured on city property while the city was insured under a liability insurance policy issued by the defendant. The defendant disclaimed liability on the ground that the city had failed to comply with certain conditions precedent set forth in the policy. On appeal, USF&G contends that these conditions were not met and that the trial court therefore erred in finding it liable to the plaintiff.

The underlying facts are not in dispute. The plaintiff, the city of West Haven, was insured under a liability policy issued by USF&G from July 1, 1965, to July 1, 1966. Paragraph 13 of the policy provided that no action would lie against the insurer unless, as a condition precedent, the insured fully complied with the terms of the policy, nor until the insured's obligation became finally determined either by judgment after actual trial or by written agreement of the insured, the claimant and the insurer. Paragraph 10 of the policy required that when an accident occurred, the insured would notify USF&G "as soon as practicable"; and paragraph 11 required theinsured to forward "immediately" every demand, notice, summons or other process received, in the event that any claim was made or suit brought against it.

On May 10, 1966, Fred Annunziata, an employee of United Illuminating Company, was injured in a pumping

station owned by the plaintiff. In July, 1966, Jack Norton, superintendent of sewers for the city, became aware of the accident when two of his men reported that photographers were in the pumping station. Norton called United Illuminating and ascertained that Annunziata was an employee of that company. After this conversation, Norton took no further action regarding the accident.

On May 8, 1967, a writ, summons and complaint brought by Annunziata against the city was filed with the city clerk. At that time the city was insured under a liability policy issued by Travelers Insurance Company. The writ, summons and complaint was forwarded to Travelers by letter dated June 23, 1967; but Travelers, by letter dated June 30, 1967, informed the city's corporation counsel that its insurance coverage had not commenced until July 1, 1967, and suggested that the matter be referred to the city's previous insurance carrier. The appropriate papers were sent to USF&G on September 8, 1967. In October, 1967, USF&G notified the city that the Annunziata suit had been referred to its attorneys under strict reservation of rights, and in January, 1968, it advised the city that it would offer defense only and would not satisfy any ultimate judgment entered against the city. On April 20, 1971, a judgment was entered by stipulation in favor of Annunziata; the city was represented by counsel provided by USF&G, who was present when the judgment was rendered. The judgment was paid by the city on July 1 1971.

The trial court had ample grounds for determining that the information received by Norton did not constitute

notice to the city and that the first notice the city had of the accident was on May 8, 1967, when the writ,

summons and complaint was served upon the city clerk. The defendant's claim, therefore, that the city failed to comply with the condition requiring notice of an accident "as soon as practicable" cannot be sustained.

The defendant's next claim is that the city's four-month delay-May 8, 1967, to September 8, 1967-in forwarding the Annunziata writ, summons and complaint constituted a failure to comply with the condition requiring the insured to forward "immediately" every demand, notice, summons or other process. It should be

noted that policy provisions employing terms such as "immediately" or "forthwith" are generally construed as requiring only that notice be given within a reasonable time, under the circumstances of the particular case."[C]ircumstances mav be such as to explain or excuse delay in giving notice and show it to be reasonable. . . . When the facts are undisputed and one conclusion only is reasonably possible, the question of compliance with a provision for notice is one of law; otherwise it is a question of fact." Baker v. Metropolitan Casualty Ins. Co., supra, 153, 171 A.9.

In this case, the court found as facts that, after the city learned of the accident when suit was filed with the city clerk on May 8, 1967, it inadvertently sent the writ, summons and complaint to Travelers Insurance Company by letter dated June 23, 1967; and, after receiving notice from Travelers, in a letter dated June 30, 1967, that the matter should be referred to the city's former insurance carrier, the city did not forward notice of the accident and suit to USF&G until September 8, 1967. On the basis of these facts, the court concluded that the delay of four months was excusable and reasonable under the circumstances, and sufficient compliance with the "immediate notice"

requirement of the policy. We disagree. A conclusion of the trial court will not be disturbed if it is one which could reasonably and logically be reached by the trier and if it is supported by the subordinate facts found. Here, although the subordinate facts might arguably justify a conclusion that the delay from May 8, 1967, to early July, 1967, was excusable, the finding is void of any facts which would excuse the subsequent two-month delay before notice was sent to USF&G on September 8, 1967. Because the conclusion of the court is not supported by the subordinate facts found, it cannot stand.

We hold that, on the facts as found, the four-month delay in notifying USF&G of the accident and suit was

neither excusable nor reasonable. This is dispositive of the case. It is, therefore, unnecessary for us to reach the defendant's final claims relating to the plaintiff's failure to satisfy the conditions set forth in paragraph 13 of the policy.

There is error, the judgment is set aside and the case is remanded with direction to render judgment for the

defendant.