EVEREST NATIONAL INSURANCE COMPANY v. RESTAURANT MANAGEMENT GROUP, LLC ET AL. (Tenn. Ct. App. April 25, 2011)
This is a declaratory judgment action filed by an insurance company against its insured and the insured's customer who allegedly was injured from a fall after stepping in a hole in the insured's parking lot.
The insurance company asked for a declaration that it was not obligated to defend and indemnify the insured against the customer's personal injury claim. The insured filed a counterclaim asking for a declaration that the insurer was required to defend the claim and indemnify the insured against liability to the customer.
On dueling motions for summary judgment, the trial court held that the insurance company was relieved of its obligation to defend and indemnify the insured because the insured waited five months before notifying the insurance company of the claim and that, as a consequence of the insured's delay, the insurer was prejudiced. During that five months, the insured repaired cracks in the parking lot where the fall allegedly occurred. The insured appeals. We affirm.
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