¶1dissenting.
¶2I respectfully dissent.
¶3This Court rewrites the insurance contract by adopting the rule that the insurer, in order to escape liability for coverage, must prove probable prejudice from a delay in notification. Section IV of said contract, clearly and unambiguously requires the insured to promptly notify the carrier of any “occurrence which may result in a claim.”
¶4The insured’s untimely notice fails to comply with the condition precedent of the contract (Section IV), thus relieving the carrier of liability under the policy, because six and one-half months elapsed between movant’s injury and notice to the insurance company of movant’s claim. Richards, supra.
¶5The majority argues that its rule requiring proof of prejudice from a delay in notification simply requires the insurance company “to take the risk it was paid to take.” If indeed the case at bar, as the majority reasons, signals the advisability of adopting the “modem rale” followed by an increasing number of jurisdictions, this action must be taken by the General Assembly and not by this Court. Because the provisions of all insurance policies are approved by the insurance department, under the general authority given by the legislature, pursuant to KRS Chapter 304, modification of contract parameters should be addressed by the legislature and/or executive branch.
¶6It is jurisprudentially sound to leave departure from our present established rule in Richards, supra, to the General Assembly. The majority’s new rule based on the concept of prejudice negates the purpose of the contract conditions, rendering them meaningless and in effect rewrites the insurance policy, contrary to the intent of the parties clearly expressed by the language of the contract. This new rule changes legislative and executive policies implicitly expressed by the insurance department’s approval of respondent’s insurance contract.
¶7If remedial action is warranted, it should be left to the legislature to respond. For these reasons, I would affirm the opinion of the trial court in finding the six and one-half month’s delay between the date of the occurrence and the date it was reported to the insurance carrier as a fatal breach to the contract.
¶8COMBS, J., joins in this dissent.