vs.                                                                                            Appeal No.: 99-2404-88A




Opinion Filed __________________

Appeal from the Final Order County Court, Civil Division, Pinellas County

The Honorable William B. Blackwood, Jr.

James J. Dowling
1150 Tampa Road
Palm Harbor, Florida 34683
Attorney for Appellant

Richard McKyton, and
Robert J. Lancaster
360 Central Avenue, 11th Floor
PO Box 1511
St. Petersburg, Florida 33731-1511
Attorneys for the Appellee


            On or about July 14, 1995, Appellant applied for and received a binder for automobile insurance coverage with Appellee for her automobile.  That same day, Appellant executed a Premium Finance Agreement with Premium Assignment Corporation in order to finance the premium owed Appellee.  Subsequent to July 14, 1995, Appellee discovered undisclosed motor vehicle violations of a driver insured under the Appellant’s policy.  These motor vehicle violations increased the policy premium and led to the chain of events giving rise to the instant case.

On September 27, 1995, Appellee mailed Appellant a Notice of Additional Payment Premium Due pursuant to Section 627.7282, Florida Statutes.  This is a statutorily mandated letter known as the “three option letter.”  This letter gave Appellant the options of paying the additional premium, signing and returning the form to her agent indicating the date on which she wanted the policy canceled, or doing nothing and having the insurance canceled on December 14, 1995.  Presumably, Appellant chose the last option, as she did not pay the additional premium or return the signed letter. 

            On September 21, 1995, Premium Assignment Corporation forwarded to Appellant a Notice of Intent to cancel Appellant’s insurance contract if payment was not received within ten days from the date of the notice.  On October 3, 1995, Premium Assignment Corporation mailed a Notice of Cancellation to Appellant with a cancellation date of October 11, 1995. Appellant was later involved in an automobile accident on November 24, 1995, prior to the cancellation date stated in the three option letter, but after the cancellation date stated in the Notice of Cancellation.  Appellant sought coverage from Appellee and was denied. 

Appellant filed a Complaint seeking damages for breach of contract and declaratory relief with regard to the November 24 accident.  Appellant claimed the policy remained in effect and that Appellee should be estopped from denying coverage because it failed to cancel her insurance policy in accordance with Florida law.  The trial judge granted Appellee’s Motion for summary judgment on March 11, 1999, and this appeal followed.

            On appeal, Appellant raises issues of legal interpretation.  There appear to be no factual disputes raised.  As such, the Court notes that an appeal of a trial court decision granting a motion for summary judgment that is based on legal, not factual, issues requires the appellate court to apply a de novo standard of review. See, Menendez v. Palms West Condominium Ass’n, 736 So. 2d 58, 60-61 (Fla. 1st DCA 1999).  Further, the Court must draw every question of inference in favor of the party against whom the motion below was granted. See, Wills v. Sears, Roebuck & Co., 351 So. 2d 59, 32 (Fla. 1977).  Nevertheless, the Court affirms the ruling of the trial court.

            Appellant first contends that a well-settled rule exists that requires courts to interpret conflicting requests for payment or notices of cancellation against the insurance company and in favor of coverage.  As support for this proposition, Appellant offers Pike v. National Fidelity Life Ins. Co., 377 So. 2d 973 (Fla. 2d DCA 1979), and Union American Ins. Co. v. Rodriguez, 696 So. 2d 1248 (Fla. 3d DCA 1997). 

In Pike v. National Fidelity Life Ins. Co., the insurance company actively induced and accepted a payment of past due premiums upon the representation that fulfillment of the conditions which the company itself imposed would prevent a lapse. 377 So. 2d at 974-75.  Thus, the company was not then allowed to say the policy was not in effect because the previous monthly payments were not timely made.  This reasoning is inapposite to the instant case and cannot support Appellant’s position; Appellee received no further payments after sending the three option letter to Appellant.  

Likewise, Union American Ins. Co. v. Rodriguez is not pertinent to the instant case and cannot bind the Court with Appellant’s propounded rule.  In Union, the Third District Court of Appeal passed judgment only upon a question of class certification.  The underlying question presented in that case, how to interpret conflicting requests where the insurer tries to extend coverage beyond the date given in the three option letter, was not addressed.  As such, Appellant’s suggested manner for interpreting Appellee’s conflicting notices of cancellation is not bolstered by the caselaw and neither this Court nor the trial court is so restricted.

Next, Appellant contends that Appellee is estopped from asserting the earlier date of cancellation given in the Notice of Cancellation over that given in the three option letter.  In support, Appellant relies on one case that specifically addresses a three option letter, Aries Ins. Co. v. Aleman, 695 So. 2d 910 (Fla. 3d DCA 1997).  In Aries, the insured was given a three option letter and, like Appellant, chose to do nothing.  Instead of her coverage being canceled on the date in the three option letter, the insured was sent another letter with a later cancellation date.  The insurer then attempted to charge the insured for the interim period at a higher rate.  The insured sued and won under breach of contract theory. 

In its decision, the court in Aries reasoned that “an absurd result will be reached if the statute is interpreted to require the listing of a specific cancellation date, yet also allow for cancellation on some other, unspecified date.” 695 So. 2d at 911.  The court justified this reasoning with the recognition that when a statute’s language is clear and unambiguous, the statute must be given its plain and ordinary meaning.  Id. (citing Savona v. Prudential Ins. Co. of Am., 648 So. 2d 705, 707 (Fla. 1995)).  However, the same plain-meaning approach yields a different result in the instant case. 

Unlike Aries, the present case involves a premium finance corporation that was given power of attorney to cancel Appellant’s insurance policy and did so in compliance with Section 627.848, Florida Statutes.  Additionally, Section 627.7282(4), Florida Statutes, states that “[this section requiring the three option letter] shall not be construed to limit insurers’ rights to cancel in accordance with applicable provisions of the insurance code.”  Considered in pari materia, the plain meaning of these sections provides insurers the ability to cancel on an earlier date than that provided in the three option letter so long as adequate notice is given and the insurance is not canceled less than fourteen days after the date of the three option letter.  Compare § 627.7282(1)(c), Fla. Stat. (1999), with § 627.848, Fla. Stat. (1999).  Given the facts of the instant case, Appellee complied with these statutes and is correct in its contention that Appellant’s insurance policy was effectively canceled on October 11, 1995.  Therefore, it is hereby

ORDERED AND ADJUDGED that the Final Judgment granting Appellant’s Motion for Summary Judgment is affirmed.

DONE AND ORDERED in chambers at Clearwater, Pinellas County, Florida, this 30th day of June 2000.

Circuit Judge, Appellate Division


Copies Furnished To:

The Honorable William B. Blackwood

James J. Dowling
1150 Tampa Road
Palm Harbor, Florida 34683

Richard McKyton, and Robert J. Lancaster
360 Central Avenue, 11th Floor
PO Box 1511
St. Petersburg, Florida 33731-1511

Staff Attorney