Wainwright Concurrence in
Prodigy Communications Corp. v. Agricultural Excess & Surplus Insurance, No. 06-0598 (Tex. Mar. 27,
2009)(Jefferson) (insurance law, effect of noncompliance with prompt notice requirement as condition
precedent for coverage of claim, prejudice factor)
PRODIGY COMMUNICATIONS CORP. v. AGRICULTURAL EXCESS & SURPLUS INSURANCE
COMPANY, N/K/A GREAT AMERICAN E & S INSURANCE COMPANY AND GREAT AMERICAN
INSURANCE COMPANY; from Dallas County; 5th district (05-05-00442-CV, 195 SW3d 764, 05-30-06)
The Court reverses the court of appeals' judgment, renders judgment in part, and remands the case to
the trial court.
Chief Justice Jefferson delivered the opinion of the Court, in which Justice O'Neill, Justice Wainwright,
Justice Brister, Justice Medina, and Justice Green joined.
Justice Wainwright delivered a concurring opinion.
Justice Johnson delivered a dissenting opinion, in which Justice Hecht and Justice Willett joined.
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Prodigy Comm. Corp. v. Agricultural Excess & Surplus Ins. (Tex. 2009)
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Justice Wainwright, concurring.
In PAJ, Inc. v. Hanover Insurance Co., we held that “an insured’s failure to timely notify its insurer of
a claim or suit does not defeat coverage if the insurer was not prejudiced by the delay.” 243 S.W.
3d 630, 636–37 (Tex. 2008). That holding largely controls the outcome of this case.
I joined the dissent in PAJ. See id. at 637 (Willett, J., dissenting). And I agree with the dissent’s
assertion today that contracts should be enforced in accordance with the express terms and
conditions to which the parties agreed, including notice provisions that are conditions precedent.
See ___ S.W.3d ___ (Johnson, J., dissenting). It is concerning that the Court’s opinion in PAJ
would likely thwart even the enforcement of a policy’s notice requirement that explicitly states, “time
is of the essence.”
Nevertheless, PAJ is now the law of the land, and I join in the Court’s opinion today for that reason.
_____________________________________
Dale Wainwright
Justice
OPINION DELIVERED: March 27, 2009