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.
IN THE CIRCUIT COURT FOR THE SIXTH
JUDICIAL CIRCUIT
IN AND
APPELLATE DIVISION
UNDERWRITING ASSOCIATION,
Appellant,
vs.
Appeal No.05-0041AP-88B
UCN522005AP000041XXXXCV
LEONARD CHARLES BALAS, JR.,
Appellee.
____________________________________/
Appeal
from Final Judgment
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.”
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 (
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
______________________________
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
Barry E. Berger, Esquire
[1] FAJUA is not a traditional insurance company, but rather an insurance risk
management plan created by the State of