Frazier v. Standard Guaranty Ins. Co.

• Decision Date: 09 April 1980
• Docket Number: No. 78-2359,78-2359
• Citation: 382 So.2d 392
• Parties: Francis E. FRAZIER and Jesse Frazier, Appellants, v. STANDARD GUARANTY INSURANCE COMPANY, etc., Appellee.
• Court: Florida District Court of Appeals

Page 392

382 So.2d 392

Francis E. FRAZIER and Jesse Frazier, Appellants, v. STANDARD GUARANTY INSURANCE COMPANY, etc., Appellee.

No. 78-2359.

District Court of Appeal of Florida, Fourth District.

April 9, 1980.

Robert Q. Wyckoff, Jr., of Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, P. A., West Palm Beach, for appellants.

Marjorie D. Gadarian of Jones, Paine & Foster, P. A., West Palm Beach, for appellee.

GLICKSTEIN, Judge.

Francis E. Frazier and Jesse Frazier appeal from a final judgment entered against them in an action filed by Standard Guaranty Insurance Company for declaratory judgment.

The issue before us is whether the record reflects substantial competent evidence to support the trial court's decision that the insurance policy issued by Standard Guaranty Insurance Company to Francis E. Frazier was cancelled as of February 29, 1976. We conclude that there is and affirm.

The parties' pre-trial stipulation recites the following stipulated facts:

1. That on or about November 26, 1975 a policy of automobile liability insurance was issued by STANDARD GUARANTY INSURANCE COMPANY to FRANCIS E. FRAZIER, under policy No: FA 2 71 50.

2. That the policy of insurance as aforesaid was issued to FRANCIS E. FRAZIER, 1210 Palm Beach Lakes Blvd., Apt. A-6, West Palm Beach, Florida 33401, said address appearing on the face sheet of the policy of insurance.

3. That prior to June 30, 1976, STANDARD GUARANTY INSURANCE COMPANY mailed a notice of cancellation to FRANCIS E. FRAZIER, 1210 Palm Beach Lakes Blvd., West Palm Beach, Florida, 33401. That said notice of cancellation did not include the apartment number A-6 of FRANCIS E. FRAZIER as same appeared upon the face sheet of policy of insurance.

While not stipulated, additional facts appearing in the record are that Francis and Jesse, his brother, were named insureds under the policy and that notice of cancellation was sent because the insureds never provided the insurer with Jesse Frazier's current Florida driver's license number. Jesse had no Florida license; it was the insurer's requirement that he have one.

Jesse was injured while in Francis' automobile in June 1976. Because the accident involved an uninsured motorist, Jesse made demand for uninsured motorist benefits under Standard's policy. The insurer refused to arbitrate Jesse's claim and brought the present action for declaratory judgment to have the court determine whether the policy was in effect when Jesse was injured.

The trial court, in deciding the policy was cancelled on February 29, 1976, expressly found that Standard's notice of cancellation to Francis was sufficient and that Francis received actual notice of the cancellation. Francis testified that he never received the notice. Marie Ray, an employee of the insurance agency which sold Francis the policy, testified that Francis telephoned and wanted an explanation for the cancellation notice. She explained the reason for the cancellation and told him if he got the needed information to the insurer before the cancellation date, the policy would be reinstated. Finally, she testified that she mailed Francis a premium refund check of $22.60, which Francis admits cashing. He stated he thought it was a reimbursement resulting from an overcharge on the premium.

It can be seen from the foregoing that while the insurer did not properly address the notice of cancellation by omitting the apartment number, the record reflects substantial competent evidence that Francis actually received the notice. The sole issue before us is whether actual notice is sufficient notice of cancellation.

The insurer maintains that Section 627.728(5), Florida Statutes (1975), governs. The statute says:

Proof of mailing of notice of cancellation, of intention not to renew, or of reasons for cancellation to the named insured at the address shown in the policy shall be sufficient proof of notice.

The insured, relying on a decision of the Michigan Court of Appeals, Dorsey v. Michigan Mutual Liability Co., 72 Mich.App. 607, 250 N.W.2d 143, 145 (1976), contends there must be strict compliance with that statute before cancellation is effected, that actual notice is immaterial if there has been noncompliance. The Michigan statute permitted sending a notice of cancellation by certified mail, return receipt requested, or delivery. The insurer mailed the...