Insurance Company of North America v. Cooke

624 So. 2d 252, 18 Fla. L. Weekly Supp. 488, 1993 Fla. LEXIS 1416, 1993 WL 365848
CourtSupreme Court of Florida
DecidedSeptember 16, 1993
Docket80175
StatusPublished
Cited by12 cases

This text of 624 So. 2d 252 (Insurance Company of North America v. Cooke) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Insurance Company of North America v. Cooke, 624 So. 2d 252, 18 Fla. L. Weekly Supp. 488, 1993 Fla. LEXIS 1416, 1993 WL 365848 (Fla. 1993).

Opinion

624 So.2d 252 (1993)

INSURANCE COMPANY OF NORTH AMERICA, Petitioner,
v.
Bobby COOKE, etc., Respondent.

No. 80175.

Supreme Court of Florida.

September 16, 1993.

*253 J.A. Setchel of the Law Offices of J.A. Setchel, Tampa, for petitioner.

Bruce A. Walkley of Walkley & Walkley, Tampa, for respondent.

Steven L. Brannock, Frederick S. Schrils and Stacy D. Blank of Holland & Knight, Tampa, amicus curiae for INAC Corp.

KOGAN, Justice.

We have for review Cooke v. Insurance Co. of North America, 603 So.2d 520 (Fla. 2d DCA 1992), wherein the district court recognized conflict with Bankers Insurance Co. v. Pannunzio, 538 So.2d 61 (Fla. 4th DCA 1989), and certified the following question for our consideration:

WHETHER SECTION 627.848 ALLOWS AN INSURER TO CANCEL AN INSURANCE CONTRACT UPON RECEIPT OF A REQUEST OF CANCELLATION SENT BY THE FINANCE COMPANY WITHOUT CONFIRMING THAT THE NOTICE REQUIREMENTS UNDER SUBSECTION (1) HAVE BEEN MET BY THE FINANCE COMPANY WHEN THERE EXISTS A POWER OF ATTORNEY IN THE FINANCE AGREEMENT?

603 So.2d at 524.[1]

On July 12, 1988, Bobby Cooke, d/b/a Continental Top Shop, entered into the premium finance agreement with INAC Corporation (INAC) to finance Cooke's business premises and garage insurance policies with Insurance Company of North America (INA). Cooke executed a valid power of attorney to INAC in all matters pertaining to the financing or cancellation of the policies. After Cooke failed to make the August 1988 payment, INAC allegedly sent him a notice of intent to cancel giving Cooke ten days to make payment. Thereafter, INAC sent INA a request for cancellation. However, the policies were reinstated at INAC's request after Cooke tendered late payment.

The same scenario of nonpayment and cancellation apparently was repeated in October 1988. According to the affidavit testimony of INAC's vice president of operations, a ten-day notice was again mailed to Cooke on October 19, 1988. INAC also introduced into evidence a computer printout entitled "Notices of Intent to Cancel." No other documentation of either the content or the mailing of the notice was offered. Cooke filed an affidavit denying that he had received the notice of intent to cancel. On November 4, 1988, INAC mailed INA a request for cancellation. On November 8, 1988, INA sent cancellation notices to Cooke. Thereafter, Cooke tendered the October payment and on November 17, 1988, INAC again requested reinstatement. Cooke sustained a fire loss to his business property on November 26, 1988. Two days later INA declined the request for reinstatement. INA denied coverage for the November 26 loss and Cooke instituted the instant action against INA and INAC. Both INA and INAC moved for summary judgment.

INA maintained that the policies had been cancelled prior to the November 26, 1988, loss at the request of INAC in accordance with section 627.848, Florida Statutes (1987). Cooke moved for partial summary judgment against INA maintaining that the cancellation was not in compliance with the statute and therefore was ineffective. Cooke also moved to strike the computer printout offered by INAC. Cooke's and INAC's motions for summary judgment were denied because there were disputed facts in issue as to whether INAC gave Cooke notice in accordance with the statute. Cooke's motion to strike the computer printout also was denied. However, the trial court granted INA's motion *254 for summary judgment, reasoning that an insurer can rely on a request for cancellation from a premium finance company regardless of whether the finance company complied with the provisions of section 627.848.

Cooke appealed the summary final judgment entered in favor of INA. INAC did not participate in the appeal. The district court reversed the ruling in INA's favor, holding that section 627.848(1) is

clear and unambiguous in requiring that, when there exists a power of attorney in the finance agreement, the notice provisions must be complied with prior to cancellation. When notice has properly been accomplished by the finance company, the insurance contract "shall be cancelled" by the insurer, pursuant to subsection (4).

603 So.2d at 523. Thus, the court reasoned that INA had to have knowledge of INAC's compliance with the notice requirements of section 627.848 before it could cancel Cooke's policies. Although the district court reversed the summary judgment in favor of INA, it affirmed the denial of Cooke's motion for partial summary judgment against INA because there were issues of material fact as to whether INAC gave Cooke the requisite notice. However, the district court reversed the denial of Cooke's motion to strike the computer printout. Id. at 524.

The district court certified the above question in light of the conflict with Pannunzio, in which the Fourth District Court of Appeal stated "the finance company, not the insurer, bears the onus for failing to give the insured notice [under section 627.848(2)] and the insured may not recover from the insurer for failure of the finance company to comply with the statute." 538 So.2d at 62. In order to resolve the apparent conflict, we rephrase the question as follows and answer it in the affirmative:

MUST AN INSURER WHO RAISES THE DEFENSE OF CANCELLATION AT THE REQUEST OF A PREMIUM FINANCE COMPANY PURSUANT TO SECTION 627.848 PROVE COMPLIANCE BY THE FINANCE COMPANY WITH THE NOTICE REQUIREMENTS OF SUBSECTION (1) OF THE STATUTE IN ORDER TO AVOID LIABILITY UNDER A CONTRACT OF INSURANCE, WHEN THE INSURED DENIES HAVING RECEIVED SUCH NOTICE?

Under the plain language of section 627.848,[2] when a premium finance agreement contains a power of attorney enabling the finance company to cancel an insurance contract, the insurance contract "shall not be canceled" unless cancellation is effectuated in accordance with the provisions of the statute.

Subsection (1) of the statute mandates that written notice be mailed to the insured of the premium finance company's intent to cancel the insurance contract unless payment is received within ten days. "After the expiration of such period," in order to effectuate the cancellation of the insurance contract the premium finance company must mail the insurer a request for cancellation pursuant to subsection (2). Upon receipt of the request by the insurer, the insurance contract shall be cancelled in the same manner as if the *255 notice of cancellation had been submitted by the insurer himself.

Compliance with the notice requirements of subsection (1) is a condition precedent to the mailing of the request for cancellation to the insurer by the finance company. If the requisite notice is not given, the premium finance company has no authority to seek cancellation of the policy. Thus, even if cancellation under the statute were by the finance company rather than by the insurer, as claimed by INA, the request for cancellation is a nullity unless notice has been given in accordance with subsection (1).

We agree with the district court that subsection (4) cannot be read to relieve an insurer of the burden of establishing compliance with the statute. It is the insurer who is alleging cancellation as a defense; thus, it is the insurer's burden to prove an effective cancellation under the statute. See Hall v. T.C. Saffold Paving Service, 397 So.2d 725 (Fla. 1st DCA 1981) (insurer raising defense of cancellation pursuant to section 627.848 has burden of proving finance company complied with requirements of statute).

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Bluebook (online)
624 So. 2d 252, 18 Fla. L. Weekly Supp. 488, 1993 Fla. LEXIS 1416, 1993 WL 365848, Counsel Stack Legal Research, https://law.counselstack.com/opinion/insurance-company-of-north-america-v-cooke-fla-1993.