Fiesta Motel, Inc. v. Fisher-Brown, Inc.

637 So. 2d 49, 1994 Fla. App. LEXIS 4583, 1994 WL 182030

Opinion

PER CURIAM.

We have for review a final money judgment for $17,368.43 entered against Fiesta Motel, Inc., in favor of an insurance agency, Fisher-Brown, Inc. Because the record does not support the amount of the judgment, we reverse.

Effective July 1, 1990, Fiesta cancelled an insurance policy written by Fisher-Brown for the period March 1, 1990 through March 1, 1991. While the policy was still in force, Fisher-Brown billed for a quarterly premium payment, in the amount of $9,238.00, payable on June 1, 1990. Fiesta did not make that payment, although by then it had paid premiums (or been credited with refunds) totalling substantially in excess of a quarter of the annual premium originally contemplated.

We find no fault with the use of a “short rate” in accordance with schedules on file with the Florida Department of Insurance, instead of a strict pro rata approach.¹ It appears from the record, however, that the final judgment was based on a statement of account² which also included the quarterly installment billing covering June, July, and August. No premium was earned or owed for July or August. The premium earned for June and the short rate adjustment were taken into account in the audit³ that eventuated in Plaintiffs Exhibit No. 6, which reflected additional premiums owing of $3,819.

REVERSED and REMANDED.

ZEHMER, C.J., and KAHN and BENTON, JJ., concur.

1 . The cancellation provision in the policy states:

If this policy is cancelled we will send the first Named Insured any premium refund due. If we cancel, the refund will be pro-rata. If the first Named Insured cancels, the refund may be less than pro-rata. The cancellation will be effective even if we have not made or offered a refund.

Fisher-Brown’s witnesses testified that Fiesta owed the “short rate” because the policy was cancelled in mid-term, instead of a premium calculated on a pro rata basis.

2 . The statement of account attached to Fisher-Brown’s complaint indicates that Fiesta paid $820.99, which may or may not have been taken into consideration in the audit performed in December of 1990.

3 . Mr. Nichols testified, "What Fisher-Brown is asking for was the difference between what was paid by Fiesta Motel and the audit that is here.” T. 32.