Heather Blair v. Perry County Mutual Insurance Company

Heather Blair ("Blair"), by and through her next friend Carla Snider, appeals from the grant of summary judgment in favor of Perry County Mutual Insurance Company ("PCMIC") and FMH Mutual Insurance Company ("FMH") on her action for equitable garnishment to collect a judgment entered in her favor. Blair claims that the trial court erred in granting summary judgment in favor of PCMIC and FMH because an assessment notice allegedly mailed to Aileen Fiedler ("Fiedler"), the insured, did not serve as notice of cancellation of the policy for nonpayment of the premium. Blair also argues that the court improperly considered an affidavit filed by PCMIC and FMH offering proof of mailing of an assessment notice to Fiedler in that the affidavit did not comply with Rule 74.04(e). We affirm.

On October 21, 1998, Heather Blair fell from a treehouse at Hilltop Trailer Court, and she suffered injuries. At this time Hilltop Trailer Court was owned, operated and managed by Aileen Fiedler. Prior to October 21, 1998, Fiedler contracted with Perry County Mutual Insurance Company and FMH Mutual Insurance Company for a policy of commercial liability insurance for Hilltop Trailer Court ("the policy"). The policy provided coverage of $300,000.00 per occurrence and was for a one-year term of April 3, 1998 to April 3, 1999. The policy contained an amendatory endorsement, which amended the cancellation provision of the insurance policy. Specifically, the provision stated:
"We may cancel this policy or any of its parts by mailing or delivering to the named insured a written notice before the cancellation is to take effect. The notice must be given:

· Not less than 10 days before the cancellation is to take effect when the cancellation is based upon one or more of the following reasons:

a. Nonpayment of premium ..."

The provision also required that the notice of cancellation state the reasons for such cancellation. A quarterly installment of Fiedler's insurance premium was due on October 3, 1998. PCMIC and FMH asserted that on September 14, 1998, a Notice for Payment of Premium was sent to Fiedler advising her that her premium payment was due on October 3, 1998 and informing her that the policy would be void if the premium was not paid by the due date. Fiedler did not pay the premium by October 3, 1998. PCMIC and FMH claim that on October 14, 1998, they sent written notice to Fiedler informing her that the coverage had lapsed for failure to pay the premium.

Blair filed suit against Fiedler and the parties contracted to limit Blair's recovery to the policy of insurance issued to Fiedler by PCMIC and FMH. A judgment of $200,000.00 was entered against Fiedler, the collection of which was limited to applicable insurance proceeds. Subsequently, Blair filed a petition for equitable garnishment against PCMIC and FMH alleging that a liability insurance policy was in effect at the time of her fall which insured Fiedler against the loss and damage assessed in the underlying personal injury suit. Each party filed a motion for summary judgment and responses thereto. Each party argued the issue of whether the insurance policy issued to Fiedler by PCMIC and FMH was in full force and effect at the time of Blair's injury. Blair's motion for summary judgment was denied, and PCMIC and FMH's motion for summary judgment was granted. The present appeal followed.

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The judgment of the trial court is affirmed in favor of Defendants.

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