Hepler v. Atlas Mut. Ins. Co.

501 So. 2d 681, 12 Fla. L. Weekly 322
CourtDistrict Court of Appeal of Florida
DecidedJanuary 22, 1987
DocketBL-332
StatusPublished
Cited by12 cases

This text of 501 So. 2d 681 (Hepler v. Atlas Mut. Ins. Co.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hepler v. Atlas Mut. Ins. Co., 501 So. 2d 681, 12 Fla. L. Weekly 322 (Fla. Ct. App. 1987).

Opinion

501 So.2d 681 (1987)

Kimberly Scheider HELPER, Appellant,
v.
ATLAS MUTUAL INSURANCE CO., American Standard Agencies, and Lyle Bray, Appellees.

No. BL-332.

District Court of Appeal of Florida, First District.

January 22, 1987.

*682 V. James Facciolo and Edward Allen Backus of Cowles, Hayden, Facciolo, McMorrow & Barfield, Jacksonville, for appellant.

William S. Burns, Jr. of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellees.

ZEHMER, Judge.

We review a summary judgment holding that the automobile insurance policy purchased by appellant, Kimberly Hepler, from Atlas Mutual Insurance Company was not in effect on the date of her accident due to nonpayment of the renewal premium. For reasons explained hereafter, we reverse and remand for further proceedings.

In the fall of 1983 Ms. Hepler obtained a motor vehicle insurance policy from Atlas. The effective period of the policy was from November 1, 1983, to May 1, 1984, and the insurer had "the right not to renew or continue it [the policy] only at each anniversary of its original effective date." The parties agree that the anniversary date was November 1, 1984. Ms. Hepler paid the entire $155.00 premium for the six-months period in advance, and Atlas did not send any subsequent notices of premium due. On May 23, 1984, Ms. Hepler's automobile was involved in an accident. She notified Atlas and filed a claim for property damage and personal injury protection benefits. Atlas denied her claim, contending that the policy coverage lapsed on May 1 for non-payment of the renewal premium due for the period May 1 through November 1, 1984. In this suit Ms. Hepler contends that she did not pay the premium because she had not received a statement that the premium was due and that Atlas' failure to send such notice caused the coverage under the policy to remain in effect through the date of her accident.

For purposes of the motions for summary judgment filed by the parties, it was stipulated as follows: During the period November 1, 1983, through May 1, 1984, the policy (attached to the stipulation) was in effect, the premium was fully paid, and no additional premium was due; Ms. Hepler was involved in an automobile accident on May 23, 1984; at no time prior to May 1, 1984, did Atlas contact Ms. Hepler and advise her that Atlas would not renew or continue the insurance coverage beyond May 1, or send her a premium-due notice or application for insurance coverage beyond May 1; Ms. Hepler did not tender a premium to Atlas for insurance beyond May 1 prior to the filing of this suit.

Paragraph seven of the policy reads in part:

*683 TERMINATION
Cancellation: This policy may be cancelled during the policy period as follows:
* * * * * *
2. We may cancel by mailing by registered or certified mail or United States Post Office proof of mailing to the named insured shown in the Declarations at the address shown in the policy:
a. at least 10 days notice if cancellation is for nonpayment of premium; or
b. at least 45 days notice in all other cases.
3. After this policy is in effect for 60 days, or if this is a renewal or continuation policy, we will cancel only:
a. for nonpayment of premium; or
b. if your driver's license ... has been suspended or revoked. This must have occurred:
(1) during the policy period; or
(2) since the last anniversary of the original effective date if the policy period is other than 1 year.
Nonrenewal. If we decide not to renew or continue this policy, we will mail advance notice to the named insured shown in the Declarations at the address shown in this policy at least 45 days before the end of the policy period. Notice will be mailed by registered or certified mail or United States Post Office proof of mailing. If the policy period is other than 1 year, we will have the right not to renew or continue it only at each anniversary of its original effective date.
We will not refuse to renew or continue this policy solely because:
1. You were convicted of one or more traffic violations which did not involve an accident or cause revocation or suspension of your driving privilege; or
2. You have had only one accident if we have insured your covered auto for a period of at least 5 years immediately preceding the renewal date.
Automatic Termination: If we offer to renew or continue and you or your representative do not accept, this policy will automatically terminate at the end of the current policy period. Failure to pay the required renewal or continuation premium when due shall mean that you have not accepted our offer.
If you obtain other insurance on your covered auto any similar insurance provided by this policy will terminate as to that auto on the effective date of the other insurance.
Other Termination Provisions:
1. We may deliver any notice instead of mailing it. Proof of mailing of any notice shall be sufficient proof of notice.
2. If this policy is cancelled, you may be entitled to a premium refund. If so, we will send you the refund. The premium refund, if any, will be computed according to our manuals. However, making or offering to make the refund is not a condition of cancellation.
3. The effective date of cancellation stated in the notice shall become the end of the policy period.

The policy does not set forth the amount of the renewal premium due for coverage from May 1 to November 1, 1984. Although the renewal premium could be increased by Atlas, the policy does not expressly require Atlas to give its insured notice of the amount of the renewal premium in advance of the premium due date.

The trial court granted summary judgment for Atlas, ruling that under the policy provisions Ms. Hepler "had an irrevocable right to renew her policy for an additional six-months period, beginning May 1, 1984," but that this "irrevocable right to renew the insurance policy for an additional term was an outstanding offer for renewal pursuant to the Automatic Termination Provisions in Paragraph 7 of the insurance policy which required some affirmative action on the part of the Insured to manifest an acceptance of this renewal offer and the payment of the renewal premium on or before the end of the then-current policy period." The court further ruled that Atlas "had no statutory, contractual, or legal duty to send to the plaintiff any oral or written notice of renewal or premium."

*684 Ms. Hepler raises two points on appeal. First, she contends that, contrary to the ruling of the court below, the policy provisions precluding cancellation or nonrenewal of the policy for at least one year gave rise to a duty on the part of Atlas to give her advance notice of the renewal premium amount and due date. Second, she contends that, in light of the renewal provisions of the policy, Atlas was under a statutory duty to give the insured at least ten days notice that the insurance was being cancelled and a statement of the reason, i.e., nonpayment of premium, pursuant to section 627.7281, Florida Statutes (1983).

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Bluebook (online)
501 So. 2d 681, 12 Fla. L. Weekly 322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hepler-v-atlas-mut-ins-co-fladistctapp-1987.