Harleysville Insurance Company v. Rosenbaum

In Harleysville Ins. v. Rosenbaum, 30 Md. App. 74, 351 A.2d 197 (1976), an insurer claimed that an insured breached the "notice" and "assistance and cooperation" provisions of an insurance policy, and that it suffered actual prejudice because "the insured died before trial, without having given the insurer any account of the accident." Id. at 83. The Court held that the trial court's conclusion that there was actual prejudice was premature because the finding was made before the trial of the underlying action. See id. at 86. Nevertheless, the Court suggested that, in determining whether actual prejudice exists, it is necessary to show an act on the part of the insured 'which had or could have had any effect upon the jury which induced them or in any way caused them to render the verdict against himself.' Stated another way, the insurer must establish a substantial likelihood that if the cooperation or notice clause had not been breached, the insured would not have been held liable. . . . It is necessary to have available the facts and circumstances surrounding the accident which is the basis for the claim against the insured, because a finding of actual prejudice inherently depends to some extent upon the closeness of the case. Id. at 84. In Harleysville Insurance Company v. Rosenbaum, the trial court found that the insurer had suffered actual prejudice as a result of the insured's failure to give notice and to cooperate. The Court observed that before the 1964 enactment of Md. Code, article 48A, 482, the predecessor statute to IA 119, insurance companies could disclaim coverage for lack of notice without proof of actual prejudice, but could disclaim coverage for lack of cooperation only upon proof of actual prejudice. 30 Md. App. at 84, n.12. The Court then looked to the case law pre-dating the predecessor statute and addressing disclaimers for lack of cooperation to glean the meaning of "actual prejudice" in the statute. Id.