Breaking and associated brands will be offline for scheduled maintenance Friday Feb. 26 9 PM US EST to Saturday Feb. 27 6 AM EST. We apologize for the inconvenience.


Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:In June 1997, Don Blanton leased certain property to Justin Burgess to operate a retail store of “one-of-a-kind restored art-deco furniture and related items.” On Aug. 27, 1998, Vesta Lloyds Insurance Co. wrote a commercial general liability coverage policy for the property; the policy ran for a term of one year. On Aug. 17, 2000, Burgess sued Blanton, alleging that the roof and structure of the property were defective when he leased the property, and that Blanton had covered up the defects. Burgess alleged that, prior to entering into the lease, Blanton represented to him that the roof was in good condition and did not leak and promised to repair any leaks within 48 hours. Burgess alleged that, from the beginning of the lease through the filing of the petition, the roof and structure leaked “whenever it rains, snows, or sleets.” Burgess alleged he notified Blanton of the leaks on more that 80 occasions and that Blanton attempted to repair the leaks, but the leaks persisted. Burgess alleged the leaks caused significant water damage to his inventory. He also alleged that he moved onto the property, and, as a result of the leaks, mold was growing, aggravating health problems. Blanton was served with Burgess’ original petition Oct. 24, 2000. He forwarded the original petition to Vesta on or about Dec. 6, 2000. Vesta’s receipt of the petition was its first notice of Burgess’ complaints or of the suit. Vesta filed this suit seeking a declaration that it had no obligation to defend or indemnify Blanton in connection with Burgess’ suit, as well as attorney’s fees. Vesta moved for summary judgment on the ground that the fortuity doctrine precluded any insurance coverage. Blanton responded to the motion. The trial court denied this motion for summary judgment. Vesta then filed a second motion for summary judgment, also supported by evidence. Vesta’s second motion asserted: 1. Blanton breached the timely notice provisions of the policy, specifically, notice as soon as practicable of “an ‘occurrence’ or an offense which may result in a claim” and notice of the claim or suit, which are conditions precedent to coverage; and 2. Vesta was prejudiced by the failure to give timely notice. Vesta also sought summary judgment on its request for attorney’s fees. Blanton responded to the motion, supported by his affidavit. The trial court granted this motion. However, the trial court subsequently granted Blanton’s motion to reconsider the granting of the second motion for summary judgment. After the case was transferred, the trial court reconsidered its order setting aside the summary judgment in Vesta’s favor, granted summary judgment in favor of Vesta, and denied all requests for attorney’s fees. Both parties appealed from this final order. HOLDING:Affirmed. The court concludes that Vesta presented evidence that Blanton failed, without excuse, to notify Vesta of Burgess’ complaints about roof leaks until more than two and one-half years after he first made them, and that Vesta was prejudiced by this untimely notice, thus establishing as a matter of law that Blanton failed to timely notify it of an occurrence or an offense which may result in a claim and prejudice. Thus, the burden shifted to Blanton to present evidence raising a fact issue on timely notice and lack of prejudice, thus avoiding summary judgment. The court rejects Blanton’s argument that whether Burgess’ complaints about roof leaks constituted an occurrence that may result in a claim is determined from his subjective perspective as the insured, pursuant to King v. Dallas Fire Insurance Co., 85 S.W.3d 185 (Tex. 2002). Here, the duty at issue is not the insurer’s duty to defend, as it was in King, but the insured’s duty to notify, a condition precedent to coverage under the policy. Rather than a subjective perspective, the duty to notify is determined by objective standards. Houck v. State Farm Mutual Automobile Insurance Co., 394 S.W.2d 222 (Tex. Civ. App. – Beaumont 1965, writ ref’d n.r.e.). Even construing the language whether notice was given “as soon as practicable” in favor of the insured, this language is “equivalent to ‘within a reasonable time’” and “invoke[s] the standard of reasonable prudence.” State Farm County Mutual Insurance Company of Texas v. Plunk, 491 S.W.2d 728 (Tex. Civ. App. – Dallas 1973, no writ). The court notes that in Carroll v. Employers Casualty Co., 475 S.W.2d 390 (Tex. Civ. App. – Beaumont 1971, writ ref’d n.r.e.), the Beaumont court of appeals rejected the insured’s excuse that “in good faith he determined, [i]n his own mind, from what he term[ed] was an adequate investigation, that there was no likelihood of a claim being made against him because of [the complainant's] injuries.” Accordingly, Blanton’s reliance on King to argue that his duty to notify of “an ‘occurrence’ . . . which may result in a claim” is determined from his subjective perspective is misplaced. Moreover, lack of knowledge that a claim could be made is, as a matter of law, not an excuse for failing to comply with the notice provisions of an insurance policy. Blanton argues Vesta was not prejudiced because, according to Blanton’s affidavit, Vesta was not prevented from conducting discovery in defending Blanton in Burgess’ suit, and no judgment was taken before Vesta assumed defense of Blanton. However, prejudice from failure to notify timely arises from inability to investigate the circumstances of an occurrence to prepare adequately to adjust or defend any claims, not merely to prepare for trial. Because Blanton’s evidence fails to address the inability to conduct a timely investigation, the court concludes he has failed to raise a fact issue as to prejudice from untimely “notice of occurrence.” OPINION:Moseley, J.; Morris, Moseley and FitzGerald, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.