National Indem. Co. v. Pennsylvania Nat. Mut. Ins. Co.
| Decision Date | 26 September 1978 |
| Docket Number | Nos. 77-1039,77-1068,s. 77-1039 |
| Parties | NATIONAL INDEMNITY COMPANY, Appellant, v. PENNSYLVANIA NATIONAL MUTUAL INSURANCE COMPANY, Appellee. PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, etc., Appellant, v. The MacNEILL GENERAL AGENCY and Alan Boud Flack, Appellees. |
| Court | Florida District Court of Appeals |
Kuvin, Klingensmith & Lewis and R. Fred Lewis, Coconut Grove, for Nat. indem.
Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O'Hara and Richard A. Sherman, Miami, for Pennsylvania Nat.
Blackwell, Walker, Gray, Powers, Flick & Hoehl and Bradford Swing, Miami, for McNeill Agency and Flack.
Before PEARSON, HUBBART and KEHOE, JJ.
The central question presented for review by these consolidated appeals is whether an insurance company can cancel an insurance policy previously issued to a Florida motor carrier regulated by the Florida Public Service Commission, when such policy has been filed with and approved by the Florida Public Service Commission, without first giving the Florida Public Service Commission 30 days notice under Section 323.06(3), Florida Statutes (1977). We hold that such 30 days notice is an essential prerequisite under the above statute for such an insurance cancellation. Accordingly, we reverse.
The facts of this case are substantially undisputed. In 1970 the Pennsylvania National Mutual Casualty Insurance Company ("Penn") issued a motor vehicle liability insurance policy to Fargo-Anchor Moving & Storage, Inc. ("Fargo-Anchor"), a motor transport company currently regulated by the Florida Public Service Commission. On July 21, 1970, Penn duly filed this insurance policy with the Florida Public Service Commission (then known as the Florida Railroad & Public Utilities Commission) which was approved. The certificate of insurance provided in part as follows:
"Such insurance shall not expire nor shall cancellation take effect until after thirty (30) days written notice has been given by the undersigned to the Florida Railroad and Public Utilities Commission at its office in Tallahassee, Florida."
On January 23, 1971, at 12:01 a.m. Penn purported to cancel the above-stated insurance policy with Fargo-Anchor for nonpayment of premium by giving notice to Fargo-Anchor. Penn failed at that time, however, to give notice to the Public Service Commission of such cancellation. Subsequent thereto, on January 29, 1971, Fargo-Anchor obtained a replacement automobile liability insurance policy from National Indemnity Company ("National") which in turn sent a certificate of insurance to the Public Service Commission on the same day. On February 5, 1971, the Commission approved the above policy.
On February 18, 1971, a vehicle owned by Fargo-Anchor collided with an automobile in Punta Gorda, Florida, resulting in the death of two people and certain personal injuries to two other people. At the time of this accident, both Penn and National had valid certificates of insurance on file and approved by the Public Service Commission. On March 17, 1971, Penn filed with the Public Service Commission a notice of its prior cancellation of insurance on Fargo-Anchor.
On August 13, 1971, the surviving injured plaintiffs and the executrix of the estate of the deceased claimants filed suit on the subject accident against Fargo-Anchor, National and others (but not against Penn) in the Circuit Court for the Eleventh Judicial Circuit of Florida. Ultimately, the trial court ruled that National's insurance policy did not provide coverage on the subject accident because of a certain geographical limit contained in the policy of insurance. This court reversed such a finding of no coverage. Vollmer v. Fargo-Anchor Moving & Storage, Inc., 288 So.2d 523 (Fla. 3d DCA 1974). Subsequent thereto, National settled with the plaintiffs herein on their claims in the amount of $106,074.07.
On June 6, 1975, National filed a declaratory judgment action against Penn seeking a judgment in its favor for restitution or indemnification of the above settlement plus costs and attorney's fees in the Circuit Court for the Eleventh Judicial Circuit of Florida. National contended in its complaint that Penn's insurance policy on Fargo-Anchor was in effect at the time of the subject accident and that Penn should, therefore, be required to pay for some or all of the settlement judgment entered for the injured claimants herein.
Penn filed an answer denying that its policy with Fargo-Anchor was in effect at the time of the subject accident. In addition, Penn filed a second amended third party complaint against Frank R. MacNeill and Son, Inc. and its insurer Alan Boud Flack as one of the Underwriter's of Lloyd's of London, contending that if its insurance policy was in effect at the time of the subject accident, the third party defendant and his insurer were negligent in not properly notifying the Florida Public Service Commission because they were Penn's authorized agent employed to perform such duties. MacNeill and its insurer filed a third party answer denying negligence and contending that the Penn insurance policy had been cancelled at the time of the subject accident.
Based on the above facts, all parties moved for summary judgment. The trial court granted the summary judgment in favor of Penn on the main action finding that the Penn policy was not in effect at the time of the subject accident. Based on the same ground, the trial court granted summary judgment in favor of MacNeill and its insurer on Penn's third party complaint. National appeals from the summary judgment in favor of Penn on the main claim; and Penn takes a precautionary appeal from the summary judgment entered in favor of MacNeill on its third party action.
The decision in this case turns on an interpretation of Section 323.06(3), Florida Statutes (1977). All parties agree that at the time of the subject accident herein (1) Penn had failed to notify the Public Service Commission that its insurance policy on Fargo-Anchor had been previously cancelled for nonpayment of premium, and (2) National had filed and the Public Service Commission had approved another insurance policy on Fargo-Anchor. National contends that the Penn policy was in effect at the time of the subject accident because the above statute requires an insurance company to give the Public Service Commission 30 days notice before it can cancel a policy with a motor carrier regulated by the Public Service Commission. Penn and MacNeill counter that the above statute makes an exception to the 30 days notice requirement where, as here, the Public Service Commission has approved another insurance policy which covers the motor carrier in question.
Section 323.06(3), Florida Statutes (1977) provides in pertinent part as follows:
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