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Berry v. Truck Insurance Exchange

April 2, 1973

BERRY, APPELLANT,
v.
TRUCK INSURANCE EXCHANGE ET AL, RESPONDENTS



Appeal from Circuit Court, Multnomah County. Donald A. W. Piper, Judge.

Richard F. Deich, Portland, argued the cause for appellant. With him on the briefs were Deich, Deich and Hinton, Portland.

Thomas Cavanaugh, Portland, argued the cause for respondents. With him on the brief were Schouboe & Cavanaugh, P.C., Portland.

In Banc. Denecke, J. Tongue, J., concurs in the result.

Denecke

The plaintiff obtained a judgment for personal injuries against defendant Coffman, who is not a party on appeal. She then brought this proceeding against Coffman's liability insurance carriers. In a trial without a jury the court held for the defendants upon the ground that Coffman had breached the provision of the policy requiring him to cooperate with the insurers, including the duty to attend trial and give evidence, and, therefore, the insurers were relieved of their obligation. Plaintiff appeals.

Coffman had been informed of the trial date, had agreed to appear and did not appear. The three issues are, did the insurers sustain their burden of proving that they used due diligence to secure Coffman's appearance, were they prejudiced by his failure to appear, and was Coffman's failure to cooperate a wilful act?

In Johnson v. Doughty, 236 Or 78, 385 P2d 760 (1963), there had been no communication between the insurer and the insured about any matter at any time. We affirmed the trial court's decision that the insurer had failed to use due diligence to secure the cooperation of the insured.

In State Farm Ins. v. Farmers Ins. Exch., 238 Or 285, 387 P2d 825, 393 P2d 768 (1964), the insurer

sent a letter to the insured notifying him of the trial date, requesting his presence and offering to pay his expenses. No acknowledgment from the insured was received. The insured never appeared at the trial. We held in a trial de novo that the insurer had failed to prove the use of due diligence.

The facts in this case are that vehicles driven by the plaintiff and Coffman collided in April 1970 in Portland. Coffman was driving a vehicle loaned to him by an auto repair firm. Defendants insured persons driving these loaned vehicles. About three weeks after the collision the defendants secured a statement from Coffman from which it would be inferred that the collision was the fault of the plaintiff, Mrs. Berry, and that she was not injured. At the time of the statement Coffman lived and worked in Portland.

The complaint was served in August 1970 upon the Department of Motor Vehicles. The defendants could not locate Coffman at that time but finally found he was in Westport, Washington. Defendants wrote him a certified letter and Coffman responded by telephone. He had no personal telephone and could only receive mail through General Delivery. A trial date had been set but the defendants had trial postponed because they had not located Coffman. Subsequently, by certified letter and telephone, a conference was arranged for Portland between defendants' attorneys and Coffman. Coffman never appeared at the conference.

As a result of Coffman's failure to appear, defendants asked their Tacoma, Washington, office, which is closer to Westport, to locate Coffman. On January 28, 1971, defendants' representative found ...


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