AMALIA LARROQUE, APPELLANT,
v.
MERCURY INSURANCE COMPANY OF FLORIDA AND DISCOUNT INSURANCE CENTER TWO, INC., APPELLEES
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An insured appeals a summary judgment dismissing her theft claim on grounds that her auto insurance policy was cancelled for non-payment. The court reverses, finding material factual disputes exist regarding whether proper cancellation notice was mailed and whether the insured's $360 payment satisfied her premium obligation under her selected payment plan.
Summary judgment was improper because substantial material issues of fact exist that preclude summary adjudication, specifically concerning the validity of the cancellation notice and whether plaintiff's payment was sufficient under the terms of her payment arrangement.
[1] A notice of cancellation for an insurance policy is insufficient to establish proof of mailing if the supporting materials are improperly authenticated.
[2] A genuine issue of material fact exists regarding the mailing of a cancellation notice when the insured specifically denies receipt.
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Join FLexlaw to unlock all legal intelligence“United States postal proof of mailing or certified or registered mailing of notice of cancellation, ... or of reasons for cancellation, ... to the named insured at the address shown in the policy shall be sufficient proof of notice.”
Florida statutory requirement for proper cancellation notice; defendant failed to meet this standard, creating triable issue of fact.
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Join FLexlaw to unlock all legal intelligenceAmalia Larroque held an auto insurance policy issued by Mercury Insurance Company. When her vehicle was stolen, Mercury denied coverage, claiming the …
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SCHWARTZ, Senior Judge.
The plaintiff-insured claimed coverage for the theft of her automobile under a policy issued by Mercury Insurance Company. She appeals from a defense summary judgment entered on the ground that the policy was appropriately cancelled before the loss because of an alleged failure to remit the entire $719.33 installment of the premium payment, which the carrier alleged was required. We reverse because of the existence of substantial material issues, including (a) whether a notice of cancellation was properly mailed,1 and (b) whether the $360.00 payment tendered by the plaintiff was insufficient, as the carrier contends, or whether the entire amount due was paid under the particular payment plan she selected.
Reversed and remanded.
. To a significant extent, the defendant's supporting materials were improperly authenticated, see Fla. R. Civ. P. 1.510(e); First Union Nat’l Bank of Fla. v. Ruiz, 785 So. 2d 589 (Fla. 5th DCA 2001); Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So. 2d 707 (Fla. 4th DCA 1997), and did not otherwise demonstrate that it had complied with section 627.728(5), Florida Statutes (2007) ("United States postal proof of mailing or certified or registered mailing of notice of cancellation, ... or of reasons for cancellation, ... to the named insured at the address shown in the policy shall be sufficient proof of notice.”), which would have rendered nonreceipt of the notice irrelevant. See Aries Ins. Co. v. Cayre, 785 So. 2d 656, 658 (Fla. 3d DCA 2001).
For this reason, the insured's specific denial that she had received the cancellation notice created a triable issue as to whether mailing actually took place. See Bank of Am. N.A. v. Evans, 948 So. 2d 998 (Fla. 3d DCA 2007); Aries Ins. Co., 785 So. 2d at 659-60.
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Zeida Vazquez v. Citizens Prop. Ins. Corp. (Fla. 3d DCA 2020)…were improperly authenticated,” based upon our independent review of the record and Citizens’ commendable confession of error, we hereby reverse and remand for further proceedings consistent with this opinion. Larroque v. Mercury Ins. Co. of Fla., 972 So. 2d 981, 982 n.1 (Fla. 3d DCA 2007) (citations omitted); see Gidwani v. Roberts, 248 So. 3d 203, 208 (Fla. 3d DCA 2018) (“Because ‘only competent evidence may be considered by the court in ruling upon a motion for summary judgment,’ a document attached to a…
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Authorities Cited
- Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So. 2d 707 (Fla. 4th DCA 1997)
- First Union Nat'l Bank OF Fla. v. Ruiz, 785 So. 2d 589 (Fla. 5th DCA 2001)
- Gillian Lord Breakspeare v. Lord, 785 So. 2d 656 (Fla. 3d DCA 2001)
- Henderson Nurse v. State, 785 So. 2d 656 (Fla. 3d DCA 2001)
- Bank OF Am. N.A. v. Evans, 948 So. 2d 998 (Fla. 3d DCA 2007)