Late Notice and Five Factor Test
Burton was sued by Buckley, as administrator of her son’s estate, for causing the son’s death in an automobile crash in May 2008. The complaint was filed on April 30, 2010, and served to Burton on July 7, 2010. Farmers sought that it had no duty to defend or indemnify Burton because he violated the late notice provision. Farmers alleged that Burton did not give notice of the occurrence until July 8, 2010, almost 26 months after the accident. Notice also came approximately 11 months after his criminal conviction for leaving the scene of an accident involving a death. The motion for summary judgment was granted. Burton appealed.
On appeal, the court used the five factor test, noting that prejudice is not determinative and only one factor to be considered when evaluating late notice. The court also noted that the second most important factor was the amount of time that had passed. The court reasoned that while being arrested does not equate to an “accident or loss,” Burton’s arrest for the hit and run death of Timothy placed him on notice of both his potential criminal and civil liability for the accident which resulted in Timothy’s death. The court believed Burton did not provide prompt notice to Farmers because he believed that notice would somehow further implicate him in the hit and run accident. The court additionally noted that even if he believed providing notice to the insurance company would be detrimental to his defense in the criminal case, fear of criminal prosecution does not excuse the violation of an insurance policy’s notice provision. The court found his failure to provide notice to his insurance company after his arrest inexplicable, regardless of his consistent denials of involvement in the accident, and affirmed the trial court’s decision.
Farmers Auto. Ins. Ass’n v. Burton, 2012 WL 982881 —N.E.2d —- (Ill.App. 4 Dist., 2012), No. 4-11-0289, 4-11-0330.
