Provisions Requiring the Forwarding of Suit Papers Are Strictly Enforced Even Though the Insurer Is Neither Harmed Nor Prejudiced by the Insured's Failure to Comply
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Discusses Members Mutual Insurance Co. v. Cutaia, and the court’s decision to strictly enforce as condition precedent to recovery a provision requiring the forwarding of suit papers. The author concludes that, the reasoning of the California courts illustrates that the burden of demonstrating prejudice should be upon the insurer. The solely technical defense used in Cutaia should not be allowed to frustrate the beneficial social purpose of insurance. Furthermore, a notice provision or a similar clause deserves strict enforcement only when the insurer is deprived of sufficient opportunity to prepare a defense. Unless the insurer can affirmatively show this, he should not be allowed to rely on the condition precedent to escape liability.