LORRAINE FOERCH, APPELLANT,
v.
ATLANTIC MUTUAL FIRE INSURANCE COMPANY ET AL., APPELLEES
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Lorraine Foerch appealed a summary judgment dismissing her fire insurance claim against Atlantic Mutual Fire Insurance Company and two insurance agencies. The court affirmed, holding that the policy was properly cancelled and the insured premises were unoccupied beyond the 60-day vacancy clause limit before the loss occurred.
The court held that there was no material issue of fact regarding proper notice of cancellation and that because the premises had been unoccupied for more than 60 consecutive days prior to the loss, the policy was not in force by its own terms.
[1] An insurance policy provision excluding coverage for loss occurring while a described building is vacant or unoccupied beyond a period of sixty consecutive days is enforc…
[2] Notice of cancellation of an insurance policy is effective when mailed to the insured's last known address, even if the insured fails to receive it due to their own actio…
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Join FLexlaw to unlock all legal intelligence“this company shall not be liable for loss occurring (b) while a described building, whether intended for occupancy by owner or tenant, is vacant or unoccupied beyond a period of sixty consecutive days”
Establishes the vacancy clause that limited coverage and provided the basis for non-coverage in this case
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceFoerch owned a home in Golden Beach, Florida and held a fire insurance policy issued by Atlantic Mutual through Hartnett and Langley Insurance Agencie…
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NATHAN, Judge.
Appellant, plaintiff in the trial court, appeals an adverse summary final judgment in her action against Atlantic Mutual Fire Insurance Company, Hartnett Insurance Agency and Langley Insurance Agency to recover on an insurance claim growing out of a fire at her Golden Beach, Florida, home.
The policy sold to appellant by Hartnett and Langley, and issued by Atlantic Mutual, contained two pertinent clauses: “. . . this company shall not be liable for loss occurring (b) while a described building, whether intended for occupancy by owner or tenant, is vacant or unoccupied beyond a period of sixty consecutive days . . . and This policy may be cancelled at any time by the Company by giving to the insured a five days’ written notice of cancellation with or without tender of the excess of paid premium above the pro-rata premium for the expired time, which excess, if not tendered, shall be refunded on demand . . .”
From review of the record, it is un-controverted that the policy had been can-celled before the loss took place; that Atlantic and Langley each notified appellant of the cancellation in writing and that Atlantic had issued a credit memorandum and check to appellant as and for a return of the premium of the policy.
Appellant denies receiving the notice of cancellation which was mailed to her Golden Beach address, but she testified on deposition that she had been residing in New Jersey for a period of more than three months continously, during the time period material hereto, without arranging to have her mail forwarded to her, and without notifying any of the defendants of her New Jersey address.
We conclude, therefore, that there was no material issue of fact that proper notice was given to appellant and that because the premises had been unoccupied for a period of more than sixty consecutive days prior to the date the loss occurred, the policy, by its own terms, was not in force.
The appellees have successfully met their burden of conclusively proving the nonexistence of a genuine issue of material fact, and have overcome all reasonable inferences which may be drawn in favor of the non-moving party, viz., the appellant.
For the reasons above stated, the judgment, therefore, is affirmed.
Affirmed.
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AETNA Ins. Co. v. Settembrino, 324 So. 2d 113 (Fla. 3d DCA 1975)…from the date of receipt. Aetna contends that the effective date of cancellation is 10 days from the date of mailing. As authority for its position, Aetna cites this court’s opinion in Foerch v. Atlantic Mutual Fire Insurance Company, Fla.App. 1974, 303 So. 2d 345. We do not find that case to be controlling since it is readily distinguished on its facts. In Foerch, the insured had been residing out of the State of Florida continuously for three months during the time period material to the case, without arran…
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Foerch v. Atl. Mut. Fire Ins. Co., 324 So. 2d 633 (Fla. 1975)…Certorari dismissed. 303 So. 2d 345. ADKINS, C. J., and ROBERTS, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.…