Recently, the 2nd Court of Appeals in Fort Worth furthered an insurance company’s ability to deny insureds a defense and indemnity based on who provides notice rather than the fact or timing of notice. In so doing, the court treats the delivery source as sacrosanct, deeming notice from other sources as wholly ineffective as a matter of law. This trend in Texas, contrary to the vast majority of other states, is irreconcilable in light of the policy language itself and other Texas coverage cases that reject form over substance.
According to the 2nd Court’s June 11 opinion in Jenkins v. State and County Mutual Fire Insurance Co. , the underlying claimant, Garry Jenkins, allegedly was injured by Mark Lemmon, a driver insured under a business auto policy. Jenkins sued Lemmon and other insureds for negligence, obtaining service on all defendants except Lemmon. The served defendants timely notified State and County Mutual, which insured all the defendants and which agreed to defend those who had given notice. After Jenkins obtained service on Lemmon, Jenkins’ lawyer informed State and County Mutual’s adjuster that service had been obtained on Lemmon and provided him with the petition and proof of service. State and County Mutual nevertheless claimed breach of the policy’s notice-of-suit condition and, on this basis, elected not to answer on Lemmon’s behalf or otherwise provide a defense for him. The trial court thereafter rendered a default judgment against Lemmon.
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