(dissenting).
The trial court awarded the plaintiff damages under the uninsured motorist provision of a contract of insurance with Travelers Indemnity Company. The majority has affirmed the Court of Appeal’s reversal of the trial court’s judgment. Their conclusion is founded on the theory that the plaintiff refused to submit medical reports and other information in regard to her physical condition as required by the proof of claim clause in the contract, and that she thereby violated the contract of insurance.
There is evidence in the record that at one point the plaintiff did refuse to submit to her insurer the medical data requested. However, the request and her refusal were after suit was filed, after the parties to the contract became adversaries, after answer and a general denial of any liability by the defendant. If it were shown that the plaintiff failed to comply with the proof of claim requirements before denial of liability and filing of suit, then a breach of contract might be pleaded. However, such is not the case before us. The plaintiff has alleged demand and the defendant insurer’s denial and rejection of her claim before her suit was filed. The defendant in its answer has denied liability under its policy, which has the effect of saying that it would not pay the plaintiff’s claim even if medical proof were submitted. It did not, and does not now, deny liability on the ground that proof of claim was not properly made after the accident and before suit in compliance with the insurance contract. Moreover, it does not appear that the defendant requested medical proof prior to the suit, or that the filing of the medical proof would in any way have affected this litigation.
The majority and the Court of Appeal have erred in concluding that the plaintiff breached the contract by her refusal to submit medical reports and otherwise comply with contractual terms after defendant denied liability and suit was filed. The majority cites two appellate decisions for support of its position. Pappas v. Aetna Casu*449alty & Surety Co., 191 So.2d 658 (La.App. 2nd Cir. 1966), is inapposite, and Martin v. Starke, 208 So.2d 723 (La.App. 3rd Cir. 1968), cert. den. 252 La. 272, 210 So.2d 509, I believe to be erroneous. Our denial of writs in that suit was based upon the untimely filing of the application.
It is my opinion that the defendant waived its right to raise the lack or inadequacy of proof of claim when it refused to pay upon the theory that there was no liability under the policy. It is a general legal concept recognized in most jurisdictions that such a denial of liability under the contract acts as a waiver of the contractual condition or provision requiring proof of loss or filing of a medical claim. 44 Am. Jur.2d Insurance § 1517; Thompson v. State Assur. Co., 160 La. 683, 107 So. 489 (1926) ; Pete v. Metropolitan Life Ins. Co., 171 So. 868 (La.App. 1st Cir. 1937) ; Standard Brass & Mfg. Co. v. Maryland Casualty Co., 153 So.2d 475 (La.App. 4th Cir. 1963); see also La Societe de Bienfaisance des Arts et Metiers v. Morris & Co., 24 La.Ann. 347 (1872).
The defendant’s denial of liability removed it and the plaintiff from the contractual requirements which appertained before such a denial, and it cannot now make use of these contractual terms so as to deny the plaintiff an equal position in the adversary trial proceedings or deny her the benefit and protection of our Code of Civil Procedure.
I would reverse the judgment of the Court of Appeal and reinstate the trial court’s judgment, and therefore must respectfully dissent.
Rehearing denied.
BARHAM, J., is of the opinion a rehearing should be granted.