Comeau v. Phoenix Assurance Co. of New York

The plaintiff administratrix, having recovered judgment by default in an action of tort against one Comeau, arising from an accident on March 19,1961, brings this action in contract against the defendant insurer on a policy which included coverage “for bodily injury caused by uninsured automobiles”; and which required, as a condition precedent to an action under it, that “As soon as practicable, the [770] insured or other person making claim shall give to the company written proof of claim . . ..” Both parties have exceptions before us. Dispositive of the case is the finding .of the judge, sitting without jury, that the first written notice of the claim under the policy was given to the insurer by letter dated October 11, 1961. His ruling that the conditions of the policy were not met in that the notice was not given “as soon as practicable” was correct. Depot Cafe Inc. v. Century Indem. Co. 321 Mass. 220, 223-224. The finding for the defendant was right. The plaintiff’s exceptions are overruled. The defendant’s exceptions, in accordance with the stipulation, are dismissed. Paul J: Liaeos & Katherine Liaoos lazo, for the plaintiff, submitted a brief. Edward J. Barshak for the defendant. So ordered.