LINDA BERWICK, APPELLANT,
v.
PRUDENTIAL PROPERTY AND CASUALTY INSURANCE CO., APPELLEE

Fla. 3d DCA | 1983-07-05
No. 82-109
Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
436 So. 2d 239 Florida District Court of Appeal, Third District (1983) Positive Treatment
Cited by 19 cases

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Synopsis

Berwick appeals a summary judgment dismissing her breach of contract claim against Prudential Insurance. The court reverses, holding that Berwick established a presumption that her jewelry appraisal was received by Prudential's agent through proof of proper mailing, which Prudential failed to rebut at summary judgment.


Holding

Berwick established the presumption that the appraisal was received by Kavanaugh through evidence of proper mailing and standard office procedures. Prudential failed to introduce credible evidence to rebut this presumption at summary judgment, so the presumption remains and summary judgment in Berwick's favor is warranted.


Headnotes

[1] A presumption of receipt of mail arises when there is proof of general office practices for proper mailing.

[2] A presumption affecting the burden of producing evidence requires the trier of fact to assume the existence of the presumed fact unless credible evidence to the contrary…

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Key Quotes

“It is presumed that mail properly addressed, stamped and mailed was received by the addressee.”

Establishes the foundational presumption of receipt in Florida law applicable to this case

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Facts & Procedural History

Prudential's agent Kavanaugh agreed to insure Berwick's jewelry upon receipt of an appraisal from appraiser Balogh. Berwick submitted her jewelry for …

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Opinion of the Court
JORGENSON, Judge.

JORGENSON, Judge.

Berwick appeals from an adverse summary judgment. In light of the following, we reverse and remand with directions to enter summary judgment in favor of Berwick.

Prudential’s agent Kavanaugh told Ber-wick that Prudential would insure her jewelry against theft if she would have it appraised by Balogh. Kavanaugh stated that the coverage would be scheduled on Ber-wick’s homeowner policy immediately upon his receipt of the appraisal from Balogh and that Berwick would be billed for the initial premium thereafter. Accepting Prudential’s terms, Berwick submitted her jewelry to Balogh. Balogh’s employee Liste subsequently signed a written appraisal. On its final page this appraisal bore the words “Copy to” followed by Prudential’s name and address and a note of attention to Kavanaugh. When Berwick picked up her jewelry from Balogh, Liste told her that the appraisal had been mailed to Kavanaugh. It was the standard procedure at Balogh for an appraisal to be mailed the day it was signed and for a copy to be retained in Balogh’s files. Generally six to eight appraisals were mailed daily. Balogh’s files contained only the copy of Berwick’s appraisal and the original was never returned to Balogh by the post office as undeliverable. During the period when the appraisal was made Kavanaugh was away on a two-week vacation. Kavanaugh had no secretary and his incoming mail was placed unopened into a pigeonhole slot, one of forty such slots in the office in which he worked. As the slot filled, the mail was stuffed into large manila envelopes which were placed into a box which was on Kavanaugh’s desk awaiting his return. Shortly thereafter, Berwick’s jewelry was stolen. She contacted Kavanaugh who informed her that the appraisal had never been received from Bal-ogh and that, therefore, Prudential would not cover the loss. Berwick brought suit for breach of contract.

It is presumed that mail properly addressed, stamped and mailed was received by the addressee. Brown v. Giffen Industries, Inc., 281 So. 2d 897 (Fla.1973); Milros-Sans Souci, Inc. v. Dade County, 296 So. 2d 545 (Fla. 3d DCA 1974), cert. denied mem., 310 So. 2d 744 (Fla.1975). The requirement of showing proper mailing is satisfied by proof of general office practices. Brown; Milros-Sans Souci, Inc.; see C. Ehrhardt, Florida Evidence § 406.1 (1977).

Unless otherwise provided by statute, a presumption established primarily to facilitate the determination of an action, as here, rather than to implement public policy is a rebuttable “presumption affecting the burden of producing evidence,” see § 90.-303, Fla.Stat. (1981), a “bursting bubble” presumption, see C. Ehrhardt, supra, at §§ 302.1, 303.1. Such a presumption requires the trier of fact to assume the existence of the presumed fact unless credible evidence sufficient to sustain a finding of the non-existence of the presumed fact is introduced, in which event the bubble bursts and the existence of the fact is determined without regard to the presumption. See § 90.302(1), Fla.Stat. (1981); C. Ehrhardt, supra, at § 302.1; see generally Ladd, Presumptions in Civil Actions, 1977 Ariz.St.LJ. 275 (1977).

Through discovery, Berwick introduced evidence that the appraisal was mailed by Balogh to Prudential’s agent Ka-vanaugh, thereby giving rise to the presumption that Kavanaugh received the appraisal. Prudential failed to burst the bubble of this presumption by failing to introduce contrary evidence during the summary judgment proceedings that the appraisal was not received by Kavanaugh. The presumption, therefore, remains.

Reversed and remanded with directions!


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Citator

Cited By

  • Getelman v. Burton R. Levey, 481 So. 2d 1236 (Fla. 3d DCA 1985)
    …fies the requirement of showing due mailing. Brown v. Giffen Industries, Inc., 281 So. 2d 897 (Fla.1973); Brake v. Florida Unemployment Appeals Commission, 473 So. 2d 774 (Fla. 3d DCA 1985); Berwick v. Prudential Property and Casualty Insurance Co., 436 So. 2d 239 (Fla. 3d DCA 1983).3 Fourth, Mr. Getelman contends the trial court gave contradictory instructions in that two different standards were given for the measurement of damages. As earlier noted, the trial court gave the jury the “benefit of bargain” r…
  • Hartford Accident & Indem. Co. v. Ocha, 472 So. 2d 1338 (Fla. 4th DCA 1985)
    …containing a deductible if they had no collateral insurance coverage is sufficient to rebut an insured’s direct denial that he was so advised, and thereby creates a fact question on the issue. Berwick v. Prudential Property & Casualty Insurance Co., 436 So. 2d 239 (Fla. 3d DCA 1983), restates the general rule that mail properly addressed, stamped and mailed was received by the addressee, and that the requirement of showing proper mailing may be satisfied by proof of general office practices. Under the evidenc…
  • Brake v. State, 473 So. 2d 774 (Fla. 3d DCA 1985)
    …en received by the addressee. Brown v. Griffen Industries, Inc., 281 So. 2d 897 (Fla.1973) (on rehearing); Home Insurance Co. v. C & G Sporting Goods, Inc., 453 So. 2d 121 (Fla. 1st DCA 1984); Berwick v. Prudential Property & Casualty Assurance Co., 436 So. 2d 239 (Fla. 3d DCA 1983). Proof of mailing is generally satisfied by proof of general office practices. Brown; Home Insurance; Berwick. * Brake’s testimony regarding his customary office practice was sufficient to trigger the presumption that his requ…

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