dissenting.
I respectfully dissent. I agree with the majority that neither Anthony's infancy nor his disability excuses the unreasonable delay in the provision of notice to Aetna in this case. I agree further that Miller v. Dilts (1984), Ind., 463 N.E.2d 257, dictates that the legal result of this unreasonable unexcused delay is that Aetna is aided with a presumption that it was actually prejudiced by the delay in its ability to prepare an adequate defense. However, under the designated facts most favorable to Anthony, I cannot conclude that, as a matter of law, Aetna has suffered actual prejudice as the result of the delay and is therefore entitled to summary judgment despite being aided with the presumption that prejudice accrued from the delay.
In Miller, our supreme court held that an insurance company must show actual prejudice from an insured's unreasonable delay in providing notice before it can avoid liability under the policy. 463 N.E.2d at 265. The Miller court held that while actual prejudice could be presumed by an unreasonable delay in the provision of notice, this presumption could be rebutted by evidence that prejudice did not occur in the particular situation. Id. The Miller court went on to hold that, once such a conflict in the evidence is created, the question of whether any prejudice actually accrued to the insurer becomes one for the trier of fact. 463 N.E.2d at 265, 266.
First of all, I do not find the fact that Anthony failed to demonstrate that the scene of the accident had not changed, that the witnesses were still available, or that their memories of the incident had not faded over the passage of time dispositive of the factual issue of whether Aetna was actually prejudiced by the passage of time. (Majority opinion p. 456) The police report of the accident is in evidence and frankly, I believe the fact that Bedell was an uninsured motorist at fault for causing the accident by failing to yield the right of way *457to the semi-tractor trailer has never been the subject of serious dispute.
Moreover, I believe that absolutely no prejudice can be found to flow from the unavailability of the specific declaration sheets pertaining to Barbara's 1979 policy in effect at the time of the accident. Barbara had testified in her deposition that she thought she had $50,000.00 worth of uninsured motorist coverage under her Aetna policy and that she had never changed her uninsured motorist coverage during the life of the policy. In addition to its motion for summary judgment on the issue of the unreasonable delay in the provision of notice, Aetna moved for partial summary judgment requesting the trial court to find that Barbara's policy in effect at the time of the accident had uninsured motorist coverage limits in the amounts of Fifteen Thousand Dollars ($15,000.00) per person and Thirty Thousand Dollars ($30,000.00) per occurrence. In support of this motion, Aetna submitted the affidavit of Bruce F. Warner, Manager of the Underwriting Department for the Aetna Casualty and Surety Company's Personal Financial Security Division, which stated in pertinent part:
Attached hereto as Exhibit "A" is a true and accurate photocopy of a Claim and Underwriting Record of and concerning the Aetna insured Barbara J. Koenig for the specific time period January 24, 1981 to July 24, 1981 and of and concerning automobile insurance maintained by the insured, Barbara J. Koenig, with Aet-na which had an original effective date of January 24, 1977 and which included uninsured motorist coverage limits of liability in the amounts of Fifteen Thousand Dollars ($15,000.00 per person and Thirty Thousand Dollars ($30,-000.00) per occurrence. After diligently searching the Aetna Underwriting Records for records containing additional information as to the limits of uninsured motorist liability coverage that the insured, Barbara J. Koenig, had for the calendar years 1977 to 1980, I have been unable to locate any other such additional information and/or records. (Emphasis added)
I do not think there can be any serious dispute but that Anthony had precisely $15,000.00 worth of uninsured motorist coverage in effect under his mother's Aet-na automobile policy at the time of the accident. Certainly, there can be no serious dispute but that Anthony's injuries/damages far exceed these policy limits.
In conclusion, I simply do not believe that, under the designated facts most favorable to Anthony, we can decide as a matter of law that Aetna was actually prejudiced by the unreasonable delay in the provision of notice despite the presumption in Aetna's favor on this issue. I take seriously the admonition issued by the majority that summary judgment is inappropriate even if it appears that the non-moving party will not succeed at trial. (Majority opinion at p. 455 citing Block v. Lake Mortgage Co., Inc. (1992), Ind.App., 601 N.E.2d 449. Moreover, I am reminded that summary judgment is a lethal weapon and courts must be mindful of its aims and targets and beware of overkill in its use. Mayhew v. Deister (1969), 144 Ind.App. 111, 244 N.E.2d 448, trans. denied. Therefore, I would reverse and remand in order that the factual issue regarding whether Aetna was actually prejudiced by the unreasonable delay in the provision of notice be determined by the trier of fact.