dissenting:
I would uphold the judgment of the trial court. Notice to the insurer “as soon as practicable” after an accident means notice within a reasonable time, dependent upon all the facts and circumstances — essentially a question of fact unless the facts and the inferences to be drawn from them are not in dispute. (Simmon v. Iowa Mutual Casualty Co. (1954), 3 Ill.2d 318, 321-322; Walsh v. State Farm Mut. Auto. Insurance Co. (1968), 91 Ill.App.2d 156, 164.) In my view, differing inferences could reasonably be drawn from the facts and circumstances here. The finding of the trial court was not clearly erroneous or against the manifest weight of the evidence and should therefore be upheld. Simmon v. Iowa Mutual Casualty Co. (1954), 3 Ill.2d 318, 321-322.
I would agree with the conclusion in the opinion that the injury did not turn out to be a trivial one such as would justify the delay in notice, since the letter of September 16, 1965 clearly informed the school that a serious injury had occurred which arose out of an accident at the school. But there is authority for the proposition that notice is not required until such facts have developed as would suggest to a person of ordinary and reasonable prudence that liability might arise; and the requirement of notice is met by advising the insurer within a reasonable time after the injury presents aspects of a possible claim for damages. (Star Transfer Co. v. Underwriters at Lloyds (1944), 323 Ill.App. 90, 93; Hall Const. Co. v. Employers Mut. L. Insurance Co. (1963), 43 Ill.App.2d 62, 66-68.) The rule has been generally recognized. See cases collected in Anno. 18 A.L.R.2d 443, 474 (Sec. 22); 39 A.L.R.3d 593, 597 (Sec. 2).
It appears from the record that the school cannot reasonably be charged with awareness that a liability claim might arise prior to the receipt of the Schafer letter in September of 1965. And no event occurred to make the school aware after receipt of the letter until service of the summons and complaint, following which the school notified the insurer.
The instant case must therefore be decided upon the facts surrounding the Schafer letter.
The first question is one of fact — whether the reference in the letter to the insurance carrier for Dist. No. 224 pertains to Guaranty Trust, the accident insurer. The court’s evident finding that the reference was to the health and accident carrier is not against the manifest weight of the evidence but on the contrary is amply supported by the language of the letter, the circumstances at the time it was written and the testimony of witnesses. Further, from the language of the letter and the surrounding circumstances, the trial court could find that a reasonably prudent person, reading the letter, would not believe under the circumstances that a liability claim might be entailed. While there were several contacts between the Schafers and the school to secure home tutoring for Susan, the Schafers did not indicate that they considered the school at fault for Susan Schafer’s injuries. The fact that the Schafers in no way indicated that they considered the school at fault for Susan’s injuries until four years later supports an inference, at least by hindsight, that the belief that no claim would be made was a reasonable one.
In addition, the record contains numerous facts from which the court could fairly infer that no liability would be involved. There was testimony that the activity involving the initial injury was not hazardous. The class was supervised and the principal had no reason to believe that Susan was injured in any other manner than in the course of normal gym procedure. It was common that there would be bumps or injuries but during all the years of the principal’s long association with the school he could recall no other liability claims against the school, although it was of substantial size. There were numerous accident claims, but this could reasonably lead to the inference that because this claim was initially made against only the accident insurer, with no indication of the school’s responsibility (except to provide tutoring), that no liability was involved.
The injury initially received could well have been considered by the school as the normal bump which might be expected in physical education. Susan continued in class after the fall using the same support horse and rings and did not mention anything to her teacher about the accident. While this would not detract from the seriousness of the impairment which was brought to the school’s attention later, it would indicate that the nature of tire initial injury and the circumstances surrounding it were not so unusual that a reasonably prudent person could believe no liability was entailed.
A further circumstance which the court could consider was the lack of a clear criteria for reporting occurrences and accidents under the notice provision of the policy. According to the insurance company, compliance with the literal language of the provisions by reporting all accidents was considered neither necessary nor sufficient to obtain coverage. The ambiguity as to when a potential claim or accident should be reported could properly be resolved against the insurer in the absence of its providing proper guidelines for reporting claims.
As indicated before, it was peculiarly within the province of the trial judge to resolve the question of notice upon the consideration of the various facts and circumstances outlined, and it cannot be said as a matter of law in this case that notice to the insurer was unreasonably delayed. Hall Const. Co. v. Employers Mut. L. Insurance Co. (1963), 43 Ill.App.2d 62; Haskell v. Siegmund (1960), 28 Ill.App.2d 1. See also American Employers Insurance Co. v. Town of Swanzey (N.H. 1968), 237 A.2d 681; U.S.F. & G. Co. v. Giroux (Vt. 1971), 274 A.2d 487; Frederick v. John Wood Co. (Minn. 1962), 116 N.W.2d 88; Henschel v. Hawkeye-Security Ins. Co. (Ia. 1970), 178 N.W.2d 409; Cooper v. Government Employees Ins. Co. (N.J. 1968), 237 A.2d 870.
The trial court’s finding in favor of the plaintiff, Kathleen Van Ness (now Lawyer), the gym teacher, is even more strongly supported in my view. Susan, the injured girl, did not notify Miss Van Ness of the occurrence of landing wrong on her leg. She continued in class using the support horse after the accident. Miss Van Ness was notified that Susans leg hurt the following gym class, but Susan continued to participate that day. There is no showing in the record that Miss Van Ness was aware of the cause of Susan's being on crutches after that or that she knew that the child was hospitalized in connection with the gym accident. She was not contacted by the Schafers before the suit. She left the school at the end of the school year (June, 1965), and knew nothing of the suit until March, 1969, and was served on July 19, 1969. The trial court could reasonably have found that she was not aware of the accident or that a claim or liability was involved or even that there was an additional or omnibus insurance liability policy in existence which covered her. All of these facts serve as a valid excuse for delayed notice under the cases, since the knowledge of the school itself could not be imputed to her as an additional insured. Scott v. Inter-Insurance Exchange (1933), 352 Ill. 572, 579; Haskell v. Siegmund (1960), 28 Ill.App.2d 1, 19. See also Cinq-Mars v. Travelers Insurance Co. (R.I. 1966), 218 A.2d 467; Jarka Corporation v. American Fidelity and Casualty Co. (S. Crt. — App.Div. 1963), 19 A.D.2d 141, 241 N.Y.S. 2d 546, aff’d 14 N.Y.2d 714, 199 N.E.2d 161; Navigazione Alta Italia v. Columbia Casualty Co. (5th Cir. 1958), 256 F.2d 26, 32 (dissent).