HAROLD HART, APPELLANT,
v.
COLONIAL PENN INSURANCE COMPANY, APPELLEE
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Hart sued Colonial Penn Insurance after it failed to renew his auto insurance policy without proper notice. The trial court granted summary judgment for Colonial Penn, finding that Hart's purchase of a new State Farm policy on September 22, 1979 automatically terminated Colonial Penn's obligations under Florida law, regardless of any procedural defects in the non-renewal notice.
Colonial Penn was relieved of its contractual obligations because Hart had procured a new auto insurance policy from State Farm effective September 22, 1979, which operated to terminate Colonial Penn's policy upon the effective date of the competing policy pursuant to Florida Statute § 627.728(4)(a), regardless of whether Colonial Penn complied with the notice requirements.
[1] An insurer is relieved of its contractual obligations under an automobile insurance policy when the insured provides proof of coverage by another insurer for the date of…
[2] An insurer must provide at least 45 days advance notice of its intention not to renew a policy, along with the reasons for refusal, unless the insurer has manifested will…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Notwithstanding the failure of an insurer to comply with this subsection, the policy shall terminate on the effective date of any other automobile liability insurance policy procured by the insured with respect to any automobile designated in both policies.”
The statutory provision that automatically terminates the original insurer's obligations when the insured obtains competing coverage, regardless of notice defects.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceHarold Hart held an auto insurance policy with Colonial Penn Insurance Company. On September 22, 1979, Hart procured a new automobile insurance policy…
The full statement of facts, procedural history, and disposition for this case are member content.
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LILES, WOODIE A. (Retired), Associate Judge.
We affirm the trial court’s summary final judgment in this insurance dispute on the authority of Section 627.728(4)(a), Florida Statutes:
No insurer shall fail to renew a policy unless it shall mail by registered mail or certified mail, or deliver to the named insured, at the address shown in the policy, and to the named insured’s insurance agent at 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. The requirement for mailing notice by registered mail or certified mail shall not apply to an agent that has agreed to represent exclusively one insurer or a group of insurers under common management. This subsection shall not apply:
1. If the insurer has manifested its willingness to renew; or
2. In case of nonpayment of premium. Notwithstanding the failure of an insurer to comply with this subsection, the policy shall terminate on the effective date of any other automobile liability insurance policy procured by the insured with respect to any automobile designated in both policies. * * * (emphasis supplied) Here, the record affirmatively demonstrates that the plaintiff had procured a new automobile insurance policy from another company, State Farm Mutual Automobile Insurance Company, with an effective date of September 22, 1979.
Therefore, the trial court was eminently correct in finding that the defendant insurance company was relieved of its contractual obligations under its automobile insurance policy when the insured submitted to it proof of coverage by another insurer for the date of the accident, September 23, 1979. Inasmuch as this finding is affirmatively supported by the record and has not been contested on appeal by the insured, we have no alternative but to affirm the trial court’s judgment.
However, we note with disfavor the defendant insurance company’s filing of the supporting affidavit for its motion for summary judgment a mere two days before the hearing on the motion. While this Court has not yet expressly considered the issue of when supporting affidavits for motions for summary judgment are to be filed, the better weight of authority indicates that any affidavits with which the moving party plans to support his summary claim should be presented at least twenty days prior to the hearing on the motion. See Coastal Caribbean Corporation v. Rawlings, 361 So. 2d 719 (Fla. 4th DCA 1978); Trawick, Florida Practice and Procedure, § 25-8, p.
367. Viewed in the circumstances of this case, however, we can only conclude that the defendant insurance company’s belated filing was harmless error.
Therefore, the summary final judgment of the trial court is
AFFIRMED.
SHIVERS and WENTWORTH, JJ., concur.
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Marlar v. The Quincy State Bank, 463 So. 2d 1233 (Fla. 1st DCA 1985)…ts are to be supplemented under this rule, the approval must be clearly indicated on the record for the benefit of all parties.” Ellis v. Barnett Bank of Lake-land, 341 So. 2d 545, 546 (Fla. 2d DCA 1977). Unlike Hart v. Colonial Penn Insurance Co., 397 So. 2d 1208 (Fla. 1st DCA 1981), we cannot treat the trial court’s improper reliance on the affidavit as harmless error. Appellant’s answer placed the amount actually due on the note in controversy.1 Therefore, the burden was on the bank to establish by undispu…
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Davis v. Lyall & Lyall Veterinarians, P.A., 506 So. 2d 1072 (Fla. 5th DCA 1987)…nce); Burns v. Taylor, 432 So. 2d 99 (Fla. 2d DCA 1983); Willis v. L.W. Foster Sportswear Co. Inc., 352 So. 2d 922 (Fla. 2d DCA 1977); Henry Stiles, Inc. v. Evans, 206 So. 2d 65 (Fla. 4th DCA 1968); see also, Hart v. Colonial Penn Insurance Company, 397 So. 2d 1208 (Fla. 1st DCA 1981) (movant’s filing of supporting affidavit two days before hearing instead of twenty days as required constitutes harmless error).…
Authorities Cited
- State v. Berbini, 361 So. 2d 719 (Fla. 4th DCA 1978)