GEORGIA COURT OF APPEALS REMINDS TRIAL COURT TO AVOID THE “DISTORTING EFFECTS OF HINDSIGHT” IN DECIDING WHETHER AN INSURED GAVE LATE NOTICE OF AN ACCIDENT TO HIS LIABILITY INSURER
Sometimes, what you don’t know can’t hurt you. That was the insured’s argument on appeal in a recent declaratory judgment action in which the liability insurer sought to be excused from defending an underlying lawsuit because the insured failed to notify the insurer of the accident until after the lawsuit was filed. In Forshee v. Employers Mut. Cas. Co., Case No. A11A0092 (Ga. App. Apr. 28, 2011), the insured, Johnny and Elizabeth Forshee, owned a service station and convenience store. On November 23, 2007, a customer fell as she walked toward the store. Mr. Forshee did not see the woman fall, but he saw her on the ground, and he went out to help her up. The woman went back to her car and may have mentioned that her arm was hurting. When Mr. Forshee offered to call for medical assistance, however, the woman refused. She told him she was going home, and she left. No one at the store knew the woman or how to get in touch with her, and she never contacted the store. The Forshees did not report the accident to their insurer, Employers Mutual Casualty Company. It was only when the woman filed and served her lawsuit two years later that the Forshees learned that the woman had broken her arm and sought treatment on the day of the accident.
