McCormack, J.
The appellant, Rent-A-Roofer, Inc., doing business as A-J Roofing & Waterproofing, settled a lawsuit without notifying its insurer — the appellee, Farm Bureau Property & Casualty Insurance Company (Farm Bureau) — of the lawsuit. After settlement, Rent-A-Roofer attempted to claim damages from Farm Bureau. Farm Bureau declined coverage because Rent-A-Roofer failed to meet the notice and voluntary payments provisions of its insurance policy. The district court found that, where the insured failed to meet both the notice and voluntary payments provisions, prejudice had been established as a matter of law and allowed Farm Bureau to avoid liability under the policy. Rent-A-Roofer appeals, claiming it is entitled to costs of defense for the suit.
At all relevant times, Rent-A-Roofer held a commercial general liability insurance policy with Farm Bureau.
In September 2007, the State of Nebraska filed a lawsuit in the district court for Lancaster County for damages arising from Rent-A-Roofer's alleged failure to install a roof in a good and workmanlike manner. The date of the State's loss was during the policy year of 2004 to 2005. Rent-A-Roofer disputed the faultiness of its workmanship and submitted the defense of the matter to Farm Bureau.
Farm Bureau decided that the complaint sought damages only for faulty workmanship and determined that the policy excluded such faulty workmanship under the "`your work'" exclusion. Farm Bureau informed Rent-A-Roofer that the property damage did not arise out of a covered "`occurrence,'" so Farm Bureau would not indemnify or defend its insured. Thereafter, Rent-A-Roofer hired its own counsel to defend the suit and reached a settlement in exchange for a release and dismissal of the suit.
In August 2010, the National Research Corporation (NRC) filed a lawsuit against Rent-A-Roofer and six other defendants in the district court for Lancaster County. Similar to the case brought by the State, NRC also alleged that Rent-A-Roofer and the other defendants had failed to construct and renovate its property in a workmanlike manner, among other claims. Rent-A-Roofer did not notify Farm Bureau of the NRC claim at that time because, "based upon the company's experience in the case brought by the State, [Rent-A-Roofer] did not believe there was
Instead of notifying Farm Bureau of the claim against it, Rent-A-Roofer hired and paid for its own legal counsel. Rent-A-Roofer proceeded with its hired counsel to mediation, where, on August 17, 2011, Rent-A-Roofer reached a settlement with NRC. On September 12, Rent-A-Roofer notified Farm Bureau of its involvement in litigation with NRC and made a demand under Rent-A-Roofer's policy with Farm Bureau.
The insurance policy held by Rent-A-Roofer contained a notice provision which stated: "
Farm Bureau refused Rent-A-Roofer's claim on the grounds that Rent-A-Roofer breached the policy's notice provision and the voluntary payments provision. In June 2012, Rent-A-Roofer filed suit against Farm Bureau, alleging breach of contract and bad faith stemming from Farm Bureau's denial of coverage.
Farm Bureau moved for summary judgment, arguing that the undisputed evidence showed coverage was properly denied under the policy and that Farm Bureau was entitled to judgment as a matter of law. Specifically, Farm Bureau argued that it properly declined coverage because Rent-A-Roofer failed to give Farm Bureau notice of the NRC claim as required under the policy and because Rent-A-Roofer voluntarily consented to a settlement with NRC without Farm Bureau's knowledge or consent as also required under the policy.
As a "threshold matter," the district court addressed whether, in actions where an insurer asserts voluntary payment as a basis for denying coverage under the policy, the insurer must also prove it had been prejudiced by the insured's breach of those policy conditions. In Nebraska, as a matter of law, an insurer must show prejudice before declining coverage due to failure to meet a notice provision.
The district court then went on to hold, however, that in cases where both the notice provision and the voluntary consent provisions are breached by the insurer's not being given an opportunity to take part in a final settlement or agreement to
Rent-A-Roofer assigns as error the court's grant of summary judgment to Farm Bureau, after the finding that Farm Bureau was prejudiced as a matter of law by Rent-A-Roofer's failure to give notice of the lawsuit until after Rent-A-Roofer's settlement. Rent-A-Roofer also assigns as error the court's failure to specifically address whether Farm Bureau was obligated to pay the costs of Rent-A-Roofer's defense.
Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose no genuine issue regarding any material fact, or the ultimate inferences that may be drawn from those facts, and that the moving party is entitled to judgment as a matter of law.
In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted and gives that party the benefit of all reasonable inferences deducible from the evidence.
The district court found that in actions where an insurer asserts untimely notice and voluntary payment as a basis for denying coverage under the policy, the insurer must also prove it has been prejudiced by the insured's breach of those policy conditions in order to avoid liability. The district court then continued to find that Farm Bureau was prejudiced as a matter of law when Rent-A-Roofer did not report the claim to Farm Bureau until after it reached a settlement agreement with NRC, because Farm Bureau was unable to take any action whatsoever to protect its interests or the interests of the insured.
At the trial court level, and in its brief on appeal, Rent-A-Roofer sought complete recovery of costs of the suit, including indemnity and defense costs from Farm Bureau. However, at oral argument, Rent-A-Roofer changed its argument and prayer for relief to ask only for the costs of defending the suit against NRC. We must now determine whether an insurer's duty to defend is relieved when the insured fails to notify the insurer of a claim until after it has reached a binding settlement agreement with the claimant, in breach of both the notice and voluntary payments provisions of its insurance policy. We conclude that, as a matter of law, an insurer is not liable for defense costs where defense of the claim concluded before
Rent-A-Roofer's commercial general liability policy with Farm Bureau contained the following provisions:
With regard to notice provisions in insurance contracts, we have stated that "[i]n order to escape liability or the duty to defend on account of an insured's unreasonable and unexcused delay in giving notice of claim, a liability insurer is required to show that it was prejudiced."
Prejudice is determined by examining whether the insurer received notice in time to meaningfully protect its interests.
We have not yet addressed whether the breach of a voluntary payments provision amounts to a material breach of an insurance contract, allowing the insurer to avoid liability, or whether the additional element of prejudice must be proved before the insurer can prove a material breach and avoid liability. Courts around the country differ in their approach to voluntary payments provisions. Some states find that an insured's failure to comply with a voluntary payments provision means that the insurer is not liable to the insured under the policy, and do not require the insurer to be prejudiced as a result of the settlement.
The purpose of a voluntary payments provision is similar to notice, consent-to-settlement, and cooperation provisions in a contract — the purpose is to ensure that an insurer has an opportunity to protect its interests.
We now turn to the issue of whether prejudice has been proved where the claim was not tendered to the insurer until after the defense is completed and the insured has entered into a binding settlement agreement.
In Herman Bros. v. Great West Cas. Co.,
In Herman Bros., we cited the Wisconsin case of Gerrard Realty Corp. v. American States Ins. Co.,
We conclude that prejudice may be shown as a matter of law where the insured's settlement deprived the insurer of the opportunity to protect its interests in litigation or participate in the litigation and settlement discussions. In this case, at the time the insured entered into an enforceable settlement agreement, it was too late for Farm Bureau to act to protect its interests. There was nothing left for Farm Bureau to do but issue a check. An insurer cannot fail in defending a suit that it has no knowledge of. In this case, we conclude that this complete denial of Farm Bureau's opportunity to engage in the defense, take part in the settlement discussions, or consent to the settlement agreement was prejudicial as a matter of law to Farm Bureau and find that Farm Bureau is not liable for defense costs.
As a final matter, Rent-A-Roofer argues that its duty to notify Farm Bureau of the claim was waived when Farm Bureau declined coverage over a prior, allegedly similar claim. However, the prior claim for which coverage was denied involved a different occurrence, different parties, and different allegations, and in short, it had no relation whatsoever to the claim by NRC against Rent-A-Roofer. We have held that where an insurer has already denied liability for a claim, it is neither necessary nor proper for the insured to notify the insurer again, and the insured's duty to notify may be waived through such denial.
The district court was correct in its finding that Farm Bureau is not liable for settlement by NRC against Rent-A-Roofer, and, by way of that finding, Farm Bureau is not liable for Rent-A-Roofer's defense costs. We affirm.
AFFIRMED.
Stephan, J., not participating.