39 Fla. L. Weekly D909b
found that there was no coverage under policy where policy had expired —
Insurer complied with requirement that it provide notice of payment due in
advance of due date, advising insured that renewal premium was due in order to
maintain policy in force, by sending notice to address provided by insured in
application, which is the same address contained in the policy and on the
INC., Appellee. 3rd District. Case No. 3D13-1890. L.T. Case No. 10-36166.
Opinion filed April 30, 2014. An Appeal from the Circuit Court for Miami-Dade
County, Antonio Arzola, Judge. Counsel: Jose M. Francisco; Joel S. Perwin, for
appellant. Marlow, Adler, Abrams, Newman & Lewis and Michael C. Rotunno and
Anthony S. Hearn, for appellee.
representative of the Estate of Alfred Rodriguez, and as assignee of Eduardo
Olivera, appeals a final summary judgment entered in favor of Security National
Insurance Company (“SNIC”).1 For the
reasons that follow, we affirm.
motorcycle when he was struck by a vehicle owned by Eduardo Olivera.2 Alfred’s father, Luis Rodriguez (“Rodriguez”) was
appointed personal representative of his son’s estate, and sued Olivera for
wrongful death. Olivera entered into a Coblentz3 agreement with Rodriguez and agreed to a consent
judgment of $2.5 million, in exchange for assigning his rights to a claim
against his insurance company, SNIC. SNIC had refused coverage for the accident
because Olivera’s policy4 expired on
December 6, 2008, nearly two months prior to the accident.5
against SNIC for breach of contract, enforcement of judgment and bad faith in
denying coverage to Olivera. Rodriguez alleged SNIC was required to place
Olivera on notice that his policy was about to expire, and that SNIC failed to
do so. Therefore, Rodriguez alleged, the policy was in full force and effect on
the date of the accident, and SNIC breached the insurance contract and acted in
bad faith in denying coverage.
before his policy expired, and also that it mailed him a notice of expiration
after the policy expired. The notices had all been sent to the address listed on
Olivera’s insurance application and on the policy declarations sheet — 5005
Collins Avenue, Miami Beach, Florida 33140. However, according to Olivera, the
address was missing his apartment number, and therefore, Rodriguez asserted,
Olivera did not receive any of the notices mailed by SNIC.
determination that no coverage existed under Olivera’s policy on the date of the
was not required to provide written notice of the policy lapse, and thus, any
defect in Olivera’s mailing address was irrelevant. Further, SNIC argued that
even if it was required to send Olivera a pre-lapse notification, it complied
with the requirement by mailing the notices to the address shown in the policy.
judgment, finding the policy had lapsed prior to the accident, and therefore,
there was no coverage and SNIC did not act in bad faith in handling the claim
and had no duty to pay the consent judgment, attorney’s fees or costs. Final
judgment was thereafter entered and this appeal followed. We review de novo the
trial court’s entry of final summary judgment. Volusia Cnty. v. Aberdeen at
Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000).
policy lapse date, that a premium was due. Rodriguez relies for this proposition
upon sections 627.728(1)(c) and (4)(a), Florida Statutes (2009). Section
No insurer shall fail to renew a policy unless it mails or delivers
to the first-named insured, at the address shown in the policy, and to the
first-named insured’s insurance agent at her or his business address, at least
45 days’ advance notice of its intention not to renew; and the reasons for
refusal to renew must accompany such notice. This subsection does not
1. If the insurer has manifested its willingness to renew;
2. In case of nonpayment of premium.
. . . Unless a written explanation for refusal to renew accompanies
the notice of intention not to renew, the policy shall remain in full force and
failure of the named insured to discharge when due any of her or his
obligations in connection with the payment of premiums on a policy or any
installment of such premium . . . .
“nonpayment of premium” (section 627.728(1)(c) above) means that nonpayment of a
premium can occur only after the insurer has provided notice of when the payment
is due and the amount of the premium. Thus, Rodriguez argues, the failure to
provide notice of payment due negates the “nonpayment of premium” exception for
the notice requirement of section 627.728(4)(a).6
Even if SNIC was statutorily required to provide reasonable notice of payment
due in advance of the due date, the undisputed facts establish that SNIC did in
fact send notice to Olivera prior to the policy lapse date, advising that a
renewal premium was due in order to maintain his policy in force. Nevertheless,
Rodriguez argues that SNIC’s mailing of the renewal offers and notice of
expiration was insufficient to terminate the policy prior to the accident date.
We do not agree.
United States proof of mailing or certified or registered mailing of
notice of cancellation, of intention not to renew, or of reasons for
cancellation, or of the intention of the insurer to issue a policy by an insurer
under the same ownership or management, to the first-named insured at the
address shown in the policy shall be sufficient proof of
If we decide not to renew or continue this policy, we will mail
notice to you at the address shown in our records. Notice will be
mailed at least 45 days before the end of the policy period.
. . .
PROOF OF MAILING
We may deliver any notice instead of mailing it. Proof of mailing of
any notice shall be sufficient proof of notice.
period (December 6, 2008), SNIC sent a renewal offer to Olivera at 5005 Collins
Avenue, Miami Beach, Florida, 33140 — the very address listed on Olivera’s
policy. It sent a “renewal reminder” to Olivera on November 24, 2008, to the
same address. Ten days after the policy lapsed, SNIC sent Olivera a notice of
policy expiration, once again to the same address. Rodriguez does not dispute
that SNIC established proof of mailing of these notices to the address listed in
the policy; he claims, however, that the notice was defective because the
address did not contain Olivera’s apartment number. However, Olivera failed to
include any apartment number in his insurance application, and no apartment
number appears on his policy declarations page.
offers and notice of policy lapse to the address provided by Olivera in his
application, which was the very same address contained in the policy and on the
declarations page. “The law is clear that an insurer’s proof of mailing of a
notice of cancellation to the insured prevails as a matter of law over the
insured’s denial as to its receipt.” Ruiz v. Fortune Ins. Co., 677 So. 2d
1336 (Fla. 3d DCA 1996).8
litigation were either voluntarily dismissed or are not parties to this appeal.
consent by Robert Zaid Alsina, who was also named in the complaint, but was
later voluntarily dismissed.
York, 416 F. 2d 1059 (5th Cir. 1969). A Coblentz agreement is a
negotiated settlement in which the defendant agrees to a consent judgment and
assigns, to the injured party, any cause of action the defendant had against the
defendant’s insurer. The injured party must thereafter “prove coverage, wrongful
refusal to defend, and that the settlement was reasonable and made in good
faith.” Chomat v. Northern Ins. Co. of New York, 919 So. 2d 535, 537
(Fla. 3d DCA 2006).
$10,000/$20,000 for bodily injury.
issue was June 6, 2008 to December 6, 2008.
Insurance Co., 501 So. 2d 681 (Fla. 1st DCA 1987) in support of this
argument. In Hepler, the First District construed the “when due” language
of section 627.728(1)(c) to “require that reasonable notice of the premium
amount be given in advance of the due date before the insured may be deemed to
have failed to discharge any obligation under the policy to pay the premium.”
Id. at 686. The court noted that this construction “protects against the
insured’s inadvertent failure to remember when premiums are due and prevents
insurers from avoiding the notice requirements by withholding notification of
the premium amount and allowing the policy to expire for nonpayment of the
renewal premium.” Id. See also, Boman v. State Farm Mutual
Auto. Ins. Co., 505 So. 2d 445 (Fla. 1st DCA 1987)(released the same day as
Hepler and reaching the same conclusion in construing this statutory
need not decide whether, as SNIC contends, Hepler and Boman
conflict with our decision in Williams v. Security Mutual Casualty Co.,
377 So. 2d 733 (Fla. 3d DCA 1979).
should have known Olivera’s complete address (i.e., his apartment number), based
on a document prepared by a property appraiser and found in the insurer’s policy
file. We find without merit Rodriguez’s argument that SNIC was required to glean
from this property appraiser’s report that Olivera’s address was incomplete.
SNIC properly relied on the application information provided by Olivera, and the
address listed on the policy, as the address to which notice was to be mailed.
Moreover, a review of the property appraiser’s report (which was not generated
by SNIC or Olivera and was not sent to SNIC by Olivera) reveals that the address
contained thereon is of a different apartment number than the one claimed
to be Olivera’s apartment number.
* * *