(concurring in part and dissenting in part).
The majority opinion reverses the trial court on Issue 3 based on insufficiency of notice to Royal without addressing or even mentioning the basis on which the trial court decided Issue 3, waiver. This is poor appellate practice which is, to my knowledge, unprecedented.
During the July 1984 telephone conversation, Don Romeo provided Schenck, and thereby Royal, with all the information Schenck needed concerning the accident and the claims of Wolff and Kempf in the underlying lawsuit to enable Schenck, for Royal, to deny the claim. The trial court’s findings of fact are as follows:
28: Don Romeo contacted Schenck by phone in July 1984 following receipt of the summons and complaints in the underlying action.
31: Schenck informed Romeo that, first of all, there was no insurance to cover the Agency and, secondly, that even if there were insurance, because the State Fair was not listed as a scheduled event on the policy, no coverage would be provided.*
33: Schenck consistently advised anyone who called that the Royal policy required a listing of scheduled events before coverage was provided, however, this apparently was not true concerning the Romeo agency.
*23834: Schenck was not correct in his belief that an event must be scheduled before coverage was provided.
38: Schenck had the authority from Royal to receive notice of losses and to submit proofs of loss.
The trial court’s conclusions of law are:
13: The oral notice by Don Romeo to Schenck in [July] 1984 was notice to Royal.
14: Schenck’s actions in 1984 denying coverage were unjustified.
15: Schenck’s acts and the information provided to Don Romeo in July 1984 are binding on Royal.
16: Royal, by virtue of Schenck’s denial of coverage, waived the right to raise the provisions of its policy regarding the obligation to give written notice of an accident and other information as soon as practicable and the obligation of the insured to immediately forward suit papers.
In other words, Royal, through Schenck, had “ample notice to permit it to take any and all necessary steps to protect its interest.” Iowa Mut. Ins. Co. v. Meckna, 180 Neb. 516, 144 N.W.2d 73, 80 (1966). Royal was not prejudiced by the lack of written notice caused by its own incorrect advice to Romeo.
Surprisingly, under Issue 2 on whether Royal got notice, the majority opinion states:
Romeo testified that he contacted Schenck by telephone in July 1984 and briefly discussed the accident and Schenck advised him that there was no insurance coverage. The trial court heard the evidence, judged the credibility of the witnesses, and determined that Romeo Agency had provided oral notice to Schenck in July 1984. On appeal, Schenck and Royal argue strenuously that Romeo's testimony was not believable. The trier of fact is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. ... Neither Royal nor Schenck has demonstrated that the trial court’s factual findings on this issue were clearly erroneous. Accordingly, we affirm the lower court’s finding that oral notice was provided to Royal in July 1984. (Citations omitted).
By reversing Issue 3 on the sufficiency of the notice to Royal, the majority opinion is doing indirectly what it hesitates to do directly. The fact is that Schenck’s wrongful denial of coverage prevented Romeo’s disclosure of further information and his forwarding of the summons and complaint. This excuses Romeo’s failure to provide additional information and constitutes a waiver of “the right to raise the provisions of its policy regarding the obligation to give written notice of an accident and other information as soon as practicable and the obligation of the insured to immediately forward suit papers,” as the trial court correctly concluded. See Conclusion of Law No. 16.
A provision in a[n] ... insurance policy as to notice of loss ... requires that reasonable information be given to the insurance company ... and such a provision should be construed with great liberality. ... Such a provision is for the benefit of the insurance company and can be waived by it.... An insurance company may be estopped from denying liability where, by its course of dealing and the acts of its agent, it has induced the insured to pursue a course of action to his detriment.
Keene Coop. Grain & Supply Co. v. Farmers Union Ind. Mut. Ins. Co., 177 Neb. 287, 128 N.W.2d 773, 777 (1964) (citations omitted).
Therefore, the majority opinion wrongfully reverses the trial court on Issue 3, and I respectfully dissent therefrom. The trial court should be affirmed on all issues.
Finding of Fact No. 39: When Don Romeo called Schenck in July 1984, following service of lawsuit papers, he did not tell Schenck the amount of the lawsuit nor the names of the parties and was not sure if he told Schenck that he had been sued. Romeo spoke briefly about the accident at the State Fair in Huron and Schenck immediately advised Romeo that there was no coverage; further that even if there was coverage Romeo Agency had not provided a list of the scheduled events beforehand which was required under the policy.