Motors Ins. Corp. v. Woodcock

• Decision Date: 17 February 1981
• Docket Number: No. 80-307,80-307
• Parties: MOTORS INSURANCE CORPORATION, Appellant, v. Vernon B. WOODCOCK, Appellee.
• Court: Florida District Court of Appeals

Page 485

394 So.2d 485

MOTORS INSURANCE CORPORATION, Appellant, v. Vernon B. WOODCOCK, Appellee.

No. 80-307.

District Court of Appeal of Florida, Third District.

Feb. 17, 1981.

Rehearing Denied March 20, 1981.

Kurzban & Kurzban and Steven M. Weinger, Miami, for appellant.

Roberts & Currea and Michael A. Currea, Hialeah, for appellee.

Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.

DANIEL S. PEARSON, Judge.

Woodcock brought a claim against his insurer, Motors Insurance Corporation, for the theft and destruction of his automobile. Motors denied coverage on the grounds that Woodcock's policy was cancelled for nonpayment of premium as of April 28, 1979 (four days before Woodcock's loss), and Woodcock's fraudulent misrepresentations concerning his driving record prevented recovery under the policy. Woodcock sued. The trial court entered a summary judgment on the issue of liability in his favor. We reverse.

The notice of cancellation which Motors contends was mailed to Woodcock on April 7, 1979, provided in pertinent part:

"... the premium for this protection has not been paid. Therefore we must, and hereby do, cancel your policy effective at the time and date shown in the right hand box above (policy cancelled as of 12:01 a.m. Standard Time at your address on 04-28-79). HOWEVER, IF THE AMOUNT DUE NOW IS PAID PRIOR TO THAT DATE THE POLICY WILL REMAIN IN FORCE, OTHERWISE IT SHALL STAND CANCELLED AT SAID TIME AND DATE WITHOUT FURTHER NOTICE."

Woodcock claims that the notice was misleading and ambiguous in several respects. However, since he unequivocally states that he never received the notice, ¹ and the words used in the cancellation are not a matter of dispute, the question of whether the notice was ambiguous, and thus the question of the validity vel non of the notice, can be decided as a matter of law. Aetna Casualty & Surety Company v. Simpson, 128 So.2d 420 (Fla. 1st DCA 1961).

"The general rule governing the sufficiency of such a notice is that 'in order to form the basis of a cancellation of a policy notice by the insurer to the insured need not be in any particular form in the absence of a statute or policy provision prescribing such form, and is sufficient so long as it positively and unequivocally indicates to the insured that it is the intention of the company that the policy shall cease to be binding as such upon the expiration of the stipulated number of days from the time when its intention is made known to the insured.' "

128 So.2d at 426.

The notice in the present case clearly satisfied the requisites of this rule. It states in certain terms that the policy is cancelled as of a specific date. Its certainty is unaffected by the fact that some action on the part of the insured could be taken to prevent cancellation, since no further action on the part of Motors was required to effect cancellation. Compare, e. g., Alexander v. State Farm Mutual Automobile Insurance Co., 148 So.2d 898 (La. 1st Cir. 1963) (notice that "the policy is cancelled unless" effective) with Travelers Insurance Co. v. Jenkins, 285 So.2d 839 (La. 1st Cir. 1973); Ellzey v. Hardware Mutual Insurance Co. of Minnesota, 40 So.2d 24 (La. 1st Cir. 1949) (notice that "the policy will be cancelled unless" ineffective).

In holding Motors' notice of cancellation to be clear and unequivocal, we are not unmindful of our decision in Auvil v. Nationwide Mutual Fire Insurance Co., 222 So.2d 46 (Fla. 3d DCA 1969). We are not persuaded that Auvil dictates a result contrary to the one we reach.

We deem the holding of Auvil to be that "a unilateral mistake in calculating the premium does not provide an insurance company with a reasonable basis for cancelling an insurance policy." 222 So.2d at 48. The court's discussion in Auvil of the language of the cancellation notice ² is immaterial to that holding and thus dictum. Moreover, the ambiguity said to exist in Auvil, as we read that decision, is not ambiguity in the language of the notice, but instead ambiguity arising from the insurance company's multiple requests to Mrs. Auvil for payment of premiums precipitated by the company's mistake in calculating the premium. ³ See Pike v. National Life Insurance Company, 377 So.2d 973 (Fla. 3d DCA 1979) (citing Auvil for the proposition that "any ambiguity or contradiction in an insurer's multiple requests for payment ... must be resolved against the company"). It is for these reasons that we do not consider Auvil controlling. See also Allstate Insurance Company v. Crawford, 365 So.2d 408 (Fla. 3d DCA 1978) (in which although we affirmed judgment for the insured, we sub silentio approved the language of a cancellation notice in all respects identical to Auvil ).

Having concluded that the language of the notice of cancellation is unambiguous, we must now address the question of whether the partial summary judgment can be sustained on the basis that Woodcock conclusively demonstrated that this notice was not mailed to him.

Woodcock denied receiving the cancellation notice. Had the insurance company shown by appropriate affidavit that it fully complied with its New York office procedures in mailing this notice to Woodcock, proof of mailing and proof of cancellation, see Section 627.728(5), Florida Statutes (1977), would have been presumptively established. Woodcock's denial would have been insufficient to overcome this presumption. Compare Brown v. Giffen Industries, Inc., 281 So.2d 897, 899 (Fla.1973) (rehearing), with Bernstein v. Liberty Mutual Insurance Co., 294 So.2d 63 (Fla. 3d DCA 1974). Motors, however, showed only that its Miami office received the duplicate of the notice, the original of which was purportedly mailed to Woodcock. ⁴ This showing, although not sufficient to raise a presumption that Woodcock was mailed the notice, was clearly sufficient to raise a genuine issue of fact as to whether the notice was mailed. ⁵

Lastly, we address Motors' denial of coverage under Section 627.409(1), Florida Statutes (1977), ⁶ a viable defense even in the absence of effective cancellation. See Sauvageot v. Hanover Insurance Co., 308 So.2d 583 (Fla. 3d DCA 1975). The summary judgment implicitly rejects Motors' right to assert this defense. There is nothing in the record before us to show Woodcock's entitlement to summary judgment on this issue. To be sure, it is undisputed that Motors, after...