Aetna Cas. & Sur. Co. v. Simpson, C-243

• Decision Date: 06 April 1961
• Docket Number: No. C-243,C-243
• Citation: 128 So.2d 420
• Parties: AETNA CASUALTY AND SURETY COMPANY, Appellant, v. W. M. SIMPSON, Appellee.
• Court: Florida District Court of Appeals

Page 420

128 So.2d 420

AETNA CASUALTY AND SURETY COMPANY, Appellant, v. W. M. SIMPSON, Appellee.

No. C-243.

District Court of Appeal of Florida, First District.

April 6, 1961.

Rehearing Denied April 19, 1961.

Shell, Fleming & Davis, Pensacola, for appellant.

Coe & Coe, Pensacola, for appellee.

WIGGINTON, Chief Judge.

Appellee insured sued appellant insurance company on a policy of automobile liability insurance. In accordance with the jury's verdict a judgment was entered in favor of appellee from which this appeal is taken.

The record reveals that appellee filed his complaint in the trial court alleging that he is the owner and holder of a liability insurance policy issued by appellant by which it agreed to insure appellee against bodily injury and property damage liability which might arise from the operation of four certain described trucks owned by appellee. It is alleged that while the policy was in full force and effect one of the trucks insured thereby was involved in a collision under circumstances rendering appellee liable for the damages resulting therefrom. Although notified of this occurrence, appellant refused to defend the action subsequently brought against appellee. He alleges that he incurred certain expenses in connection with the employment of counsel to defend the action brought against him by the injured parties, which action resulted in judgments rendered against appellee for certain stated sums of money, together with court costs. The complaint prays for judgment in a sum sufficient to indemnify the plaintiff for the cost and expenses incurred by him in connection with the defense of the action, together with the amount of judgments rendered in favor of the plaintiffs in that suit which appellee is required to pay.

Appellant answered the complaint denying that the insurance policy mentioned therein was in full force and effect at the time the truck purported to be covered thereby was involved in the collision described in the complaint, and affirmatively alleges that prior to the collision out of which appellee's liability arose the insurance policy had been effectively cancelled thereby relieving appellant from any obligation to defend the action brought against appellee or to pay any costs, expenses or other liability resulting therefrom.

Interrogatories propounded by appellee were answered, following which appellant filed its motion for summary judgment. The motion so filed is supported by several affidavits and is opposed by an affidavit signed and filed by appellee. The record reveals that both the motion for summary judgment, together with all supporting and opposing affidavits were filed in the cause on July 8, 1960. No order on the motion for summary judgment appears in the record, nor in the appendices to the briefs filed by the parties.

The record further reveals that by leave of court appellee filed on July 15, 1960, a reply to the affirmative defense of cancellation interposed by appellant. By his reply appellee alleges that the purported cancellation of the insurance policy was ineffectual as a matter of law for the reason that the notice is so ambiguous on its face as to render it a nullity. The reply also raises the issue of equitable estoppel against the defense of cancellation by alleging that appealee never in fact received notice of cancellation from either appellant or its agent, and that appellant failed or refused to tender to him the unearned portion of the premium paid for the insurance policy at the time of its procurement as required by the terms and provisions of the policy. It is alleged that as a result appellee was led to believe that his policy continued in full force and effect, whereas had the unearned premium been tendered to him at or about the time of the purported cancellation as required by the provisions of the insurance policy, he would have then been in position to protect himself by procuring other insurance on the truck whose operation caused the damages for which he is adjudged liable. No procedural attack upon the legal sufficiency of this reply was made by appellant. It was upon the issues thus formed by the complaint, the defenses interposed by the answer and plaintiff's reply thereto that the case was submitted to the jury which resulted in the rendition of the judgment in appellee's favor.

By his first point appellant contends that the trial court erred in denying its motion for summary judgment. There are two reasons why we cannot consider this point. In the first place the record fails to contain any order rendered by the court on the motion for summary judgment. Other than what is said by appellant in his brief, the veracity of which we do not question, there is no record proof that an order on the motion was ever rendered. It is fundamental that the record on appeal must contain every order, judgment or decree which forms the subject of alleged error. An appellate court is not authorized to hold a trial court in error for its rendition of an order, judgment or decree alleged to be erroneous unless proof of the rendition of such ruling is incorporated in the record and made available for review. Secondly, because of the foregoing, the record fails to reveal the date on which the alleged order denying appellant's motion for summary judgment was rendered. The date of the rendition of such order, assuming one was rendered, would be crucial in deciding whether error was committed. If the motion was heard and decided by the court at that stage of the proceedings when the only justiciable issue formed by the pleadings was whether or not the insurance policy in question had been effectively cancelled, it might be held for the reasons appearing later in this opinion that the court erred in denying the motion. If on the the other hand, the motion was heard and disposed of by the court after appellee's reply had been filed raising the additional issues concerning the validity vel non of the notice, and equitable estoppel to assert the defense of cancellation, it might be held that the court was correct in denying the motion. This is so for the reason that the only proof offered by appellant in support of its motion for summary judgment was confined solely to the issue of cancellation and had no bearing whatever upon the remaining issues raised by appellee's reply. The motion was not for partial summary judgment, but for judgment on the entire cause of action sued upon.

Appellant next contends that the trial court erred in submitting to the jury the issue of equitable estoppel interposed to the defense of cancellation, which was raised by appellee's reply. The uncontradicted evidence shows that the policy of liability insurance in question was issued on October 22, 1958, and the premium therefor fully paid by the insured. On December 1, 1958, some two and one-half months after the policy issued, appellant mailed to appellee at the address shown in the policy a written notice purporting to advise that the policy was cancelled effective December 13, 1958. S copy of the notice of cancellation was mailed by appellant to its local agent who had solicited appellee's business. The local agent wrote a letter to appellee on December 4, 1958, to the address specified in the policy, advising him that appellant had cancelled the insurance policy in question and inquiring what disposition appellee wishes to be made of the unearned premium due him. The agent advised appellee of a method whereby other insurance could be procured on the trucks covered by the policy if such was desired. Appellee regularly maintained a post office box at the address shown in the policy and regularly received all mail directed to him at that address. Despite this, he testified that he never received the notice of cancellation mailed to him by appellant, nor the letter advising him of cancellation from the local agent. On March 10, 1959, some three months after the purported cancellation, one of appellee's trucks covered by the policy was involved in a collision which resulted in damage to third parties under circumstances rendering appellee liable therefor. The occurrence was reported to appellant's agent on the following day, March 11, 1959, when appellee learned for the first time that his insurance policy had theretofore been cancelled and was no longer in force and effect.

The cancellation provision contained in the policy of insurance is in the standard form customarily used by insurance companies doing business in Florida. It provides that the policy may be cancelled by the company by mailing to the insured at the address shown in the policy written notice stating when, not less than ten days thereafter, such cancellation shall be effective. It further provides that the mailing of the notice shall be sufficient proof of cancellation, and the effective date of cancellation stated in the notice shall become the end of the policy period.

It is a well established principle prevailing in Florida that proof of mailing a notice of cancellation to a named insured at his address stated in the policy shall be sufficient compliance with the policy provision requiring notice to the insured. Convincing evidence of mailing is not rebutted merely by evidence that the notice was not actually received. Where the mailing of the written notice of cancellation in strict conformity with the expressed essentials of such a provision is established by proof, the cancellation is effectual without evidence of the receipt of the notice by the insured. ¹ The foregoing appears to be the general rule adhered to by the majority of other jurisdictions in this country. ²

It therefore clearly appears that the fact appellee failed to receive the written notice of cancellation of his policy was not...