In Food Market Merchandising, Inc v. Scottsdale Indemnity Company, Food Market was required to pay additional commissions to an employee.  It provided notice to Scottsdale 7 months after the employee sued for his commissions.  The trial court said it was too late, and the Eighth Circuit agreed.  The policy required the policyholder to “give Insurer written notice of any Claim as soon as practicable, but in no event later than sixty (60) days after the end of the Policy Period.” The notice was given within the policy period, but 7 months after suit was filed.

Both parties moved for summary judgment. The district court granted summary judgment to Scottsdale, finding “no genuine issue that [Food Market] failed to notify Scottsdale of the Spinner Litigation as soon as practicable. Because timely notice is a condition precedent to payment under the Policy, Scottsdale’s duty to defend/indemnify was never triggered, and Scottsdale is entitled to judgment as a matter of law.”

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Food Market contends the district court erred in finding no genuine issue of material fact about the timeliness of notice. The policy required Food Market give Scottsdale written notice of any claim “as soon as practicable, but in no event later than sixty (60) days after the end of the Policy Period.” “Generally, whether the notice was given as soon as practicable is a fact-dependent question for a jury to determine.” Id. at 86, citing St. Paul Fire & Marine Ins. Co. v. Wabash Fire & Cas. Ins. Co., 264 F. Supp. 637, 642-43 (D. Minn. 1967).

But Food Market presented no evidence that providing notice over seven months after Spinner sued was “as soon as practicable.”  No plausible excuse was offered to explain the delay.  The notice provision was not ambiguous, and there was no waiver of the requirement.  Summary judgment was proper.