Progressive Express Ins. Co. v. Camillo

• Decision Date: 20 March 2012
• Docket Number: No. 4D10–3922.,4D10–3922.
• Citation: 80 So.3d 394
• Parties: PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellant, v. Michel CAMILLO and Jean–Paul Camillo, Appellees.
• Court: Florida District Court of Appeals

80 So.3d 394

PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellant,

v.Michel CAMILLO and Jean–Paul Camillo, Appellees.

No. 4D10–3922.

District Court of Appeal of Florida, Fourth District.

Feb. 8, 2012.Rehearing Denied March 20, 2012.

Valerie A. Dondero and Robert J. Squire of Houck Anderson, P.A., Miami, for appellant.

Mark Perlman of Mark Perlman, P.A., Hallandale Beach, for appellees.

TAYLOR, J.

Appellant, Progressive Express Insurance Company (“Progressive”), appeals a final declaratory judgment, which determined that insurance coverage existed under an automobile policy for an accident that occurred on July 26, 2008. The trial court entered summary judgment in favor of the insureds and ruled that Progressive's unconditional acceptance of premiums waived its right to claim that there had been a lapse in coverage. Under the circumstances of this case, we disagree and hold that where a policy expires without the insured making a renewal payment, and a loss occurs after the expiration of the policy period, the insurer may subsequently accept premium payments and reinstate the policy prospectively without waiving the right to deny coverage for the loss. We therefore reverse the summary judgment in favor of the insureds. However, we do not remand for judgment in favor of the insurer, as we find that the insureds may have a viable estoppel claim based on a potentially misleading bill that Progressive sent to the named insured.

By way of background, Progressive issued an automobile policy to Michel Camillo, the named insured, for the policy period from January 9, 2008 through July 9, 2008. Michel Camillo's brother, Jean–Paul, was also an insured on the policy.

On May 21, 2008, Progressive sent a Cancel Notice to Camillo,¹ stating that payment must be received by June 5, 2008, in the amount of $537.68 or else the policy would be canceled. Camillo acknowledged that he received the Cancel Notice.

On June 4, 2008, Progressive sent a Renewal Bill to Camillo, which stated that the unpaid amount must be paid by June 5, 2008, to avoid cancellation of the current policy. In addition, the Renewal Bill stated that to renew the policy, Camillo was required to pay at least the minimum amount of $1,062.17 by July 9, 2008. The Renewal Bill stated that payment of the unpaid amount for the current policy would not renew the policy.

The Payment Coupon attached to the Renewal Bill stated that to avoid cancellation of the existing policy, a payment of $532.68 ² was due by June 5, 2008. The Payment Coupon further stated: “When all payments on your current policy are made, please pay $1,062.17 by July 9, 2008.” In Camillo's deposition, Camillo testified that he did not recall receiving the Renewal Bill dated June 4, 2008, even though he acknowledged that the address listed on this correspondence was his correct address.

On June 6, 2008, Progressive sent Camillo a notice that the policy was cancelled because Progressive did not receive payment of the minimum amount due by June 5, 2008. On June 7, 2008, Camillo made a payment of $537.68. Progressive's underwriting specialist stated in an affidavit that at the time of Camillo's June 7th payment to reinstate the existing policy ending July 9, 2008, Camillo still owed $527.64 on the existing policy.

On June 8, 2008, Progressive sent a Reinstatement Confirmation to Camillo. This correspondence stated that Progressive had reinstated Camillo's policy effective June 5, 2008, and that there was no lapse in coverage.

On June 8, 2008, Progressive sent Camillo an “Auto Insurance Bill” stating that $527.64 was the minimum amount due by June 24, 2008. However, this bill stated the following in the upper right-hand corner: “Policy Period: Jul 9, 2008—Jan 9, 2009.” This bill did not state that the $527.64 was owed for the existing policy period that ended as of July 9, 2008. Camillo testified that he received this bill.

On June 23, 2008, Progressive sent Camillo a Renewal Reminder. The Payment Coupon attached to the Renewal Reminder set forth a “Pay now” amount of $1,060.17, which included $527.64 owed from the current policy. The Payment Coupon also unambiguously stated, “To avoid a lapse in coverage, payment must be received or postmarked by 12:01 a.m. on July 9, 2008.” (Emphasis in original). Camillo testified that he did not recall receiving the June 23, 2008 Renewal Reminder, even though he admitted that this correspondence set forth his correct address.

On June 24, 2008, Progressive sent an email reminder to the email address on file for Camillo, again stating that to avoid a lapse in coverage, a minimum payment of $1,060.17 was due by July 9, 2008. According to Progressive, this email was not returned as undeliverable. Camillo verified that Progressive had his correct email address, but he nevertheless claimed that he did not receive this email. On June 25, 2008, Progressive sent another Renewal Reminder to Camillo's email address, but Camillo denied receiving it.

On July 3, 2008, Camillo made a payment of $527.64 to Progressive. Progressive credited this payment on only the existing policy, which was then paid in full. However, Camillo made no additional payments prior to July 9, 2008, and Camillo did not pay anything towards the renewal. Camillo testified in his deposition that he was not aware that he was required to pay anything else at that time. But after being presented with all the documents described above, Camillo agreed that the renewal was not paid before July 9, 2008.

On July 26, 2008, Jean–Paul was involved in an automobile accident. Michel Camillo reported the accident to Progressive, but Progressive took the position that the policy had expired on July 9, 2008, without being renewed and that no policy was in force at the time of the accident. After reporting the accident, Camillo made a payment that same day and his Progressive policy was reinstated. Thereafter, Camillo made monthly payments to Progressive, which Progressive accepted and did not return.

In December 2008, the insureds filed a complaint against Progressive, seeking a declaration that their automobile insurance policy with Progressive provided coverage for the motor vehicle accident that occurred on July 26, 2008. Progressive answered the complaint and filed a counterclaim for declaratory relief, requesting a declaration that there was no coverage because the policy had lapsed before the accident of July 26, 2008.

In response to a request for admissions, Camillo admitted that Progressive sent him a Verification of Insurance Form, which indicated that coverage lapsed on July 9, 2008, and resumed on July 27, 2008.

After discovery revealed the facts set forth above, the parties filed cross-motions for summary judgment. In the insureds' motion for summary judgment, they argued primarily that Progressive waived its right to contend that there was a lapse in coverage by accepting the insurance premiums without making any effort to return the funds. By contrast, in Progressive's motion for summary judgment, Progressive maintained that it was entitled to determination as a matter of law that there was no coverage available under the policy for the July 26, 2008, accident because Camillo failed to pay any premium towards the renewal of the policy on or before the renewal date of July 9, 2008. Progressive's motion for summary judgment was supported by multiple exhibits, including the correspondence described above and the affidavit of a “Litigation Underwriting Specialist” for Progressive.

According to the affidavit of Progressive's underwriting specialist, because Camillo had reported that the accident involving Jean–Paul had already occurred, Progressive reinstated Camillo's policy with coverage commencing the next day, July 27, 2008.

At the summary judgment hearing, counsel for the plaintiffs argued that Progressive “never took the position that the policy was reinstated as of July 27 ... until after this lawsuit was filed. You won't find one single piece of paper which says—[that] in this record.” ³ After listening to the argument of the parties, the trial court ruled that coverage existed because Progressive unconditionally continued to accept payments from the insured. The court further reasoned:

We have documents that say the period is from July 9th forward. It doesn't say July 27th. I didn't see anything here that said July 27th, other than what I deem to be a self-serving affidavit filed post-litigation.... I have to assume he thought he was paying for coverage July 9th forward, because that's what you told him.(Emphasis added). The trial court thus granted the plaintiffs' motion for summary judgment and denied Progressive's motion for summary judgment. The trial court denied rehearing and entered a final declaratory judgment determining that insurance coverage existed under the Progressive policy for the accident that occurred on July 26, 2008. This appeal followed.

The standard of review of an order granting summary judgment is de novo. Fla. Atl. Univ. Bd. of Trs. v. Lindsey, 50 So.3d 1205, 1206 (Fla. 4th DCA 2010). When reviewing an order granting summary judgment, an appellate court must examine the record in the light most favorable to the non-moving party. Allenby & Assocs., Inc. v. Crown St. Vincent Ltd., 8 So.3d 1211, 1213 (Fla. 4th DCA 2009). “[T]he burden is upon the party moving for summary judgment to show conclusively the complete absence of any genuine issue of material fact.” Albelo v. S. Bell, 682 So.2d 1126, 1129 (Fla. 4th DCA 1996). A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law. Moore v. Morris, 475 So.2d 666, 668 (Fla.1985).

The threshold issue we address is whether the trial court erred in rejecting the affidavit of Progressive's underwriting specialist in deciding the issue of coverage.

A trial court may not weigh the evidence or judge the credibility of witnesses in arriving at summary judgment....