GEORGE L. SILVERNAIL, APPELLANT,
v.
AMERICAN FIRE AND CASUALTY COMPANY, A CORPORATION, APPELLEE
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George Silvernail obtained a judgment against an insured and sought garnishment against his insurance company. The Florida Supreme Court reversed the trial court's summary judgment in favor of the insurer, holding that the company's notice of cancellation for nonpayment of premiums did not comply with the policy's requirement of at least five days' notice, and therefore the policy was still in force when the cause of action arose.
The insurer's notice was insufficient because it did not provide the required five days between mailing and effective cancellation. Computing time from November 21 to noon on November 26 yields less than five full days. Therefore, the policy remained in force when the cause of action arose, and the insurer was bound to pay the judgment within the policy limits.
“This policy may be canceled by the company by mailing to the named insured at the address shown in this policy written notice stating when not less than five days thereafter such cancelation shall be effective.”
Establishes the policy requirement that the insurer provide notice with at least five days before cancellation becomes effective
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Join FLexlaw to unlock all legal intelligenceSilvernail obtained a judgment against James Q. Merritt for injuries from an accident. Execution was returned nulla bona. Silvernail then sought garni…
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MATHEW'S, Chief Justice.
In this case the appellant obtained a judgment against James Q. Merritt for injuries growing out of an accident. Execution was issued on the judgment and returned nulla bona. The appellant then initiated garnishment proceedings against the appellee. In due course answer was filed by the garnishee and upon motions a summary judgment was differed in favor of the appellee and the writ of garnishment was dissolved. This case depends upon whether or not the notice of cancellation. of an insurance policy with a nonpayment of premium notice and the related documents met the requirements of the insurance policy in question. If the policy was not effectively cancelled, it.,was in force at the time the cause of action arose against the insured and the insurance company is bound to pay the judgment obtained against insured, within limits of the policy.
The insurance policy contained the following with reference to cancellation:
“22. Cancelation. . This policy may be canceled by the named insured by surrender thereof or by mailing to the company written notice stating when thereafter such cancelation shall be effective. This policy may be canceled by the company by mailing to the named insured at the address shown in this policy written notice stating when not less, than five days thereafter such cancelation shall be effective. The mailing .of notice as aforesaid shall be sufficient proof of notice and the effective date and hour of cancelation stated in the notice shall become the end of the policy period. Delivery of such written notice either by the named insured or by the company shall be equivalent to mailing.
“If the named insured cancels, earned premiums shall be computed in accordance with the customary short rate table and procedure. If the company cancels, earned premiums shall be computed prorata. Premium adjustments may be made at the time cancelation is effected and, if not then made, shall be made as soon as practicable after cancelation becomes effective. The company’s check or the check of its representative mailed or delivered as aforesaid shall be a sufficient tender of any refund of premium due to the named insured.”
The record discloses that some kind of a notice was mailed to the insured. No premium adjustment was made at the time the notice of cancellation was mailed or “as soon as practicable [there]-after”. A check for the unearned premium was tendered to the insured by an agent of the company approximately three weeks after the mailing of the notice and subsequent to a loss under the policy. The first important question for our determination is whether or not such notice was within the terms of the policy. The insurance company relied upon the effective date of this conditional notice of cancellation as a defense.
The policy contained a provision that it could be cancelled by the company by mailing notice to the named insured at the policy address stating when, not less than five days thereafter, such cancellation shall become effective. The notice was mailed on November 21, 1950. The notice-stated that if the premiums were not paid the company would cancel the policy at noon on November 26, 1950. In computing time the first day should be excluded and the last day included. Simmons v. Hanne, 50 Fla. 267, 39 So. 77; Scarlett v. Frederick, 147 Fla. 407, 3 So. 2d 165; 52 Am.Jur., Sec. 17, page 342. A simple calculation shows that from November 21, 1950 to noon, November 26, 1950 is not five full days, therefore, if the notice in form is sufficient, it was not "sufficient in time to comply with the terms of the policy.
Having determined that the notice. is insufficient it is unnecessary to determine other questions presented, including the question of the failure of the insured to make premium adjustments at the time cancellation is effected or if not then made, as soon thereafter as practical.
As the notice was not given in accordance with the terms of the policy the appellee was bound to pay the judgment obtained against insured within the limits of the policy.
Reversed with directions to set aside the judgment in favor of the appellee and to enter a judgment in favor of the appellant.
THOMAS, SEBRING, ROBERTS and DREW, JJ., concur. TERRELL, J., dissents.
HOBSON, J., not participating .because of illness.
On Rehearing Granted
PER CURIAM.
A rehearing haying been granted in this cause and the case having been further considered upon the record and upon briefs and argument of counsel for the respective parties; it is thereupon ordered and adjudged by the Court that the Opinion of this Court filed April 13, 1955 be and the same is hereby adhered to on rehearing.
DREW, C. J., and THOMAS, SEB-RING, ROBERTS and THORNAL, JJ., concur. TERRELL, J., dissents.
HOBSON, J., not participating.
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Graves v. Iowa Mut. Ins. Co., 132 So. 2d 393 (Fla. 1961)…ed because of a conflict between the decision of the District Court of Appeal, Second District, reported as Graves v. Iowa Mutual Insurance Co., 123 So. 2d 351, 352, and the decision of this court in Silvernail v. American Fire and Casualty Company, 80 So. 2d 707, 708. The facts are outlined in the opinion of the District Court, supra. Conflict arises over the construction of the cancellation clause in petitioner’s general overall policy which' reads as follows: “This policy as an entirety (including all In…
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Peninsular Fire Ins. Co. v. Junior Paul King, 282 So. 2d 672 (Fla. 1st DCA 1973)…for the ten-day policy requirement. By so doing, it is quite evident that the effective date and hour of cancellation stated in the notice did not meet the thirty-day notice required by the statute. In Silvernail v. American Fire and Casualty Co., 80 So. 2d 707 (Fla.1955), the court held that four and one-half days notice in light of a five-day notice provision in the policy was not effective cancellation. Likewise, the Supreme Court held in Graves v. Iowa Mutual Insurance Co., 132 So. 2d 393 (Fla.1961), t…
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Curtis-Hale, Inc. v. Geltz, 610 So. 2d 558 (Fla. 1st DCA 1992)…ive intent. Instead, it based its decision upon two earlier supreme court decisions, both of which had involved construction of language regarding notice requirements contained in insurance policies. In Silvernail v. American Fire and Casualty Co., 80 So. 2d 707 (Fla.1955), the first case relied upon in Peninsular, the court held that a written notice of cancellation mailed less than five days before the stated cancellation date had no effect pursuant to a policy provision which stated that the “policy may…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Scarlett v. Frederick, 147 Fla. 407 (Fla. 1941)
- Simmons v. Hanne, 50 Fla. 267 (Fla. 1905)