Summary
An insured reported flood damage nearly four months after the event and argued that appointment of a surveyor waived the policy requirement of prompt notice. The Supreme Court held that appointment alone did not establish waiver, particularly where the survey report and repudiation expressly relied on breach of the notice condition, and upheld dismissal of the complaint.
Issues
- Whether appointing a surveyor amounted to waiver of the policy condition requiring prompt intimation of loss.
Held
- Waiver requires intentional, informed abandonment of an existing right. Appointment of a surveyor does not by itself estop an insurer from relying on breach of a policy condition; waiver must be assessed from the totality of the circumstances. (¶¶ 12, 21)
- Galada Power was distinguishable: it concerned a marine policy duration clause and repudiation on another ground. Here the policy subsisted, the surveyor recommended rejection for breach of the notice condition, and the repudiation letter expressly invoked that breach. The appointment, considered with the regulatory context, did not establish conscious relinquishment. (¶¶ 16, 17, 18, 19, 20, 23, 24, 26)
- The unexplained delay of approximately three months and twenty-five days defeated the prompt-notice requirement, which enabled meaningful investigation of the cause and nature of loss. In these circumstances compliance was a prerequisite to a valid claim, rather than a merely technical formality. (¶¶ 22, 27)
Result
Appeals dismissed; the finding that the insurer had not waived the delayed-intimation condition and dismissal of the complaint were upheld. No order as to costs.