County Civil Court: CIVIL PROCEDURE – Summary Judgment – trial court erred in entering summary judgment in favor of insured after insurance policy had been cancelled for insured’s failure to provide a copy of vehicle registration to insurer – undisputed that insured received notice of cancellation, insured never received notice of reinstatement, nor did agent represent to insured that policy had been reinstated – under facts presented, final judgment must be entered in favor of insurer - Final Judgment reversed. Florida Automobile Joint Underwriting Assoc. v. Balas, Appeal No. 05-0041AP-88B (Fla. 6th Cir. App. Ct. June 30, 2006). 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

FLORIDA AUTOMOBILE JOINT

UNDERWRITING ASSOCIATION,

                        Appellant,

vs.                                                                                    Appeal No.05-0041AP-88B

                                                                                         UCN522005AP000041XXXXCV

LEONARD CHARLES BALAS, JR.,

                        Appellee.

____________________________________/

Appeal from Final Judgment

Pinellas County Court

Judge Myra Scott McNary

 

Jeffrey R. Fuller, Esquire

Attorney for Appellant

 

Barry E. Berger, Esquire

Attorney for Appellee

 

ORDER AND OPINION

 

            THIS CAUSE came before the Court on appeal, filed by Florida Automobile Joint Underwriting Association (FAJUA), from the Final Judgment, entered May 5, 2005, in favor of Leonard Charles Balas, Jr. (Balas).  Upon review of the briefs, the record and being otherwise fully advised, the Court reverses the trial court’s ruling as set forth below.

            The record shows that on September 10, 1999, FAJUA, the insurer, issued a policy of insurance to Balas, the insured, with a policy period of September 10, 1999, to September 10, 2000, for a Chevy Sprint.[1]  Balas received a copy of a Suspense Letter, dated October 4, 1999, addressed to the issuing agent, Insurer II, requesting that Insurer II immediately send FAJUA a copy of the registration for the Chevy Sprint to avoid cancellation.  On October 14, 1999, Balas added a second vehicle, a Buick Regal, to the original policy through Insurance II.  On December 13, 1999, FAJUA cancelled the insurance policy for Balas’ failure to provide a copy of the registration for the Chevy Sprint.  FAJUA returned the unearned insurance premium of $ 1,064.00 to the premium finance company.

In his deposition, Balas stated that he mailed a copy of the Chevy registration to Insurance II after receiving the Suspense Letter.  In late October, Balas mailed Insurance II a copy of the Buick registration.  After receiving the notice of cancellation, Balas contacted Insurance II and asked Insurance II if they had sent FAJUA the registration, apparently referring to the Buick registration.  Insurance II allegedly replied they didn’t have the registration, so Balas again sent Insurance II a copy of the Buick registration.  Balas had no discussion with anyone at Insurance II as to how sending a copy of the Buick registration would affect the notice of cancellation.  Balas did not file an appeal of the cancellation of his insurance policy nor did he ever receive a written “notice of reinstatement” from FAJUA indicating that his policy had been reinstated.

The trial court denied FAJUA’s motion for summary judgment finding that there was an issue of fact as to whether Insurance II was acting as an agent for FAJUA.  The trial court granted Balas’ cross-motion for summary judgment, finding that FAJUA failed to comply with the provisions of Florida Statutes, section 627.7282(1)(c), when it sent the unearned premium refund to the finance company.  The trial court concluded that this made FAJUA’s cancellation of the policy ineffective. 

            On appeal, FAJAU raises three issues:  (1) whether the trial court erred in denying FAJUA’s motion for summary judgment in that Insurance II was not the agent of FAJUA and, even if it was, under the facts of this case agency makes no difference, and; (2)  whether the trial court erred in granting Balas’ motion for summary judgment in that section 627.7282(2)(1) does not apply in this case.  The Court conducts a de novo review of summary judgment.  Summary judgment can only be granted when the moving party irrefutably establishes that the nonmoving party cannot prevail.  See Hervey v. Alfonso, 650 So.2d 644, 645-46 (Fla. 2d DCA 1995).  As emphasized by the Second District Court of Appeal in Hervey, “if the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party and summary judgment must be denied.”  Id. 

            In addressing the first issue, under different facts, the Court would affirm the trial court’s decision to deny FAJUA’s motion for summary judgment because there remains a genuine issue of material fact as to whether Insurance II was acting as an agent of FAJUA.  See e.g. Liberty Mutual Insurance Company v. Sommers, 472 So.2d 522, 525 (Fla. 1st DCA 1985)(concluding that producing agent had apparent authority, conferred by participating insurers, to provide for an effective date of insurance contrary contrary to later effective date); Rios v. Florida Farm Bureau Mutual Insurance Company, 371 So.2d 700, 701 (Fla. 3d DCA 1979)(finding that producing agent of assigned risk did not become agent of insurer solely by operation of the assigned risk plan and finding that record was void of evidence that insurer had taken any action to clothe agent with apparent authority).  However, in this case, even if the trial court were to find that an agency relationship existed between FAJUA and Insurer II, it is undisputed that Balas never received a “notice of reinstatement” nor did Insurance II ever represent to Balas that his policy had been reinstated.  Hence, as a matter of law, the trial court should have entered summary judgment in favor of FAJUA since the trial court found that the notice of cancellation complied with Florida Statutes, section 627.7282, and that Balas was notified of his right to appeal the cancellation and failed to do so.

            In addressing the second issue, the Court finds that the trial court erred as a matter of law in entering summary judgment in favor of Balas based on the provision of section 627.7282(1)(c), which requires the insurer to return any unearned premium to the insured.  As explained in Amstar Insurance Company v. Cadet, 862 So.2d 736, 738 (Fla. 5th DCA 2003), 627.7282 applies only in situations where the policy was cancelled because of nonpayment.  In this case, Balas policy was cancelled because Balas did not comply with FAJUA’s underwriting requirements.  Therefore, it is,

            ORDERED AND ADJUDGED that the Final Judgment is reversed and this cause remanded for the trial court to enter Final Judgment in favor of Florida Automobile Joint Underwriting Association.  The Appellee’s Motion for Attorney’s Fees and Costs on Appeal is denied.

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ______ of June 2006.

 

                                                       ______________________________

                                                       DAVID A. DEMERS

                                                       Circuit Judge, Appellate Division

 

 

 

_____________________________                          _____________________________

PETER RAMSBERGER                                          ANTHONY RONDOLINO

Circuit Judge, Appellate Division                                   Circuit Judge, Appellate Division

Copies furnished to:

 

Judge Myra Scott McNary

 

Jeffrey R. Fuller, Esquire

Post Office Box 12349

St. Petersburg, FL  33733-2349

 

Barry E. Berger, Esquire                                                          

1150 Tampa Road

Palm Harbor, FL 34683

 



[1] FAJUA is not a traditional insurance company, but rather an insurance risk management plan created by the State of Florida pursuant to Florida Statutes, section 627.351, as an insurer of last resort for Floridians seeking to obtain motor vehicle insurance that would not otherwise be available to them on the private market.