Alvarez v. Florida Ins. Guar. Ass'n, Inc.

• Decision Date: 27 September 1995
• Docket Number: No. 94-1199,94-1199
• Citation: Alvarez v. Florida Ins. Guar. Ass'n, Inc., 661 So.2d 1230 (Fla. App. 1995)
• Parties: 20 Fla. L. Weekly D2214 Armando ALVAREZ and Maria Alvarez, his wife, Appellants v. FLORIDA INSURANCE GUARANTY ASSOCIATION, INC., Appellee.
• Court: Florida District Court of Appeals

Page 1230

661 So.2d 1230

20 Fla. L. Weekly D2214

Armando ALVAREZ and Maria Alvarez, his wife, Appellants v. FLORIDA INSURANCE GUARANTY ASSOCIATION, INC., Appellee.

No. 94-1199.

District Court of Appeal of Florida Third District.

Sept. 27, 1995.

Carlos A. Lopez, P.A. and Virginia M. Best, Miami, for appellants.

Walton Lantaff Schroeder & Carson and John P. Joy, Miami, for appellee.

Before NESBITT, GODERICH and GREEN, JJ.

PER CURIAM.

Armando and Maria Alvarez appeal from the entry of a final summary judgment in favor of the Florida Insurance Guaranty Association, Inc. ("FIGA"). We affirm.

The Alvarezes obtained insurance on their Hialeah home from MCA Insurance Co. ¹ for the period July 9, 1992 to July 9, 1993 in the amount of $73,000 for the dwelling and $36,000 for personal property. In a notice dated July 17, 1992, MCA cancelled the policy effective August 8, 1992 because the appraisal on the house did not meet the company's minimum underwriting standards for Dade County. The policy was replaced by one from TriState Insurance Co. with $55,000 coverage on the dwelling. The Alvarez home was damaged in Hurricane Andrew. The Alvarezes assert that it was only after the hurricane, when they attempted to claim against the policy, that they found that the MCA policy had been cancelled and replaced with another with lower policy limits.

The Alvarezes filed suit in March 1993 against FIGA, their insurance agency and their insurance agent. Pertinent to this appeal, they alleged that FIGA was vicariously liable for MCA's failure to notify them of the policy's cancellation and failure to comply with section 626.9201, Florida Statutes (1991). They claimed as damages the difference between the MCA policy limits of $73,000 and the TriState limits of $55,000. Final summary judgment was entered in FIGA's favor in April 1994 and the Alvarezes instituted this appeal.

The Alvarezes' main contention on appeal is that the trial court erred in failing to strike the affidavit of Pamela Gerald, Vice-President and Manager of the personal property underwriting department of Frank R. MacNeill & Sons, Inc. the managing general agent for MCA on its Florida business. The Alvarezes argue that the affidavit should have been stricken because Gerald's affidavit stated that she was "familiar with the procedures utilized at Frank R. MacNeill & Sons" as opposed to stating that she had personal knowledge of the facts contained in the affidavit.

Florida Rule of Civil Procedure 1.510(e) sets out the requirements that affidavits supporting and opposing motions for summary judgment must be made on personal knowledge, state admissible facts and affirmatively show that the affiant is competent to testify as to the matters being related in the affidavit. "The purpose of the personal knowledge requirement is to prevent the trial court from relying on hearsay when ruling on a motion for summary judgment and to ensure that there is an admissible evidentiary basis for the case rather than mere supposition or belief." Pawlik v. Barnett Bank of Columbia County, 528 So.2d 965, 966 (Fla. 1st DCA 1988) (citations omitted). An affidavit lacking the assertion that it is made on personal knowledge is not fatally defective if it shows, on its face, that it is based on the affiant's personal knowledge. Myrick v. St. Catherine Laboure Manor, Inc., 529 So.2d 369, 371-72 (Fla. 1st DCA 1988).

In the case at bar, Ms. Gerald's affidavit stated that she was currently a vice-president of the corporation and manager of the personal property department and that she held the same position in July 1992...