18 Fla. L. Weekly Supp. 161a
Online Reference: FLWSUPP 1802SANC
Insurance — Automobile — Coverage — Non-renewal of policy — Notice — Error to enter summary judgment finding that insurer was required to extend coverage under lapsed policy due to its failure to send renewal letter where insurer filed affidavits attesting that it sent notice of renewal and never refused to renew policy, insured provided no evidence that he took necessary steps to avoid policy lapse, policy provided that insured’s failure to pay premium required to renew policy would be construed as refusal of renewal offer and policy would expire without notice, and insured purchased policy with another carrier
GEICO GENERAL INSURANCE COMPANY, Appellant, v. GABRIEL M. SANCHEZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-480 AP. L.C. Case No. 03-09409 CC 25. December 10, 2010. An Appeal from a decision rendered by the Miami-Dade County Court, Jacqueline Schwartz, J. Counsel: Thomas J. Caldwell, Walton Lantaff Schroeder & Carson, LLP, for Appellant. Amado Alan Alvarez, Law Offices of Alvarez & Alvarez-Zane, for Appellee.
(Before SCHWARTZ, SIGLER and EMAS, JJ.)
(SIGLER, Judge.) This is an appeal from a final summary judgment in favor of Appellee Gabriel M. Sanchez. Sanchez, the Plaintiff in the trial court, sued Appellant GEICO General Insurance Company (“GEICO”), the Defendant in the trial court, over a lapsed automobile insurance policy. GEICO maintained that Sanchez’s coverage lapsed due to his missing a payment and failing to renew his coverage by the established date of July 12, 2003. Because of these actions, GEICO did not renew Sanchez’s insurance coverage, however Sanchez insists that the reasons for nonrenewal should be attributed to GEICO’s error, not his actions. Sanchez contends that, he demanded GEICO renew him at his previous preferred rate, which was no longer available after the established nonrenewal date had passed. When GEICO declined, Sanchez brought suit for violations of Sections 627.7277, 626.9541, and 627.728, of the 2003 version of the Florida Statutes.
On March 17, 2008, Sanchez moved for summary judgment, alleging that GEICO failed to comply with its policy’s “renewal” requirements. Sanchez argued that GEICO never sent a renewal letter informing him that his renewal date was July 12, 2003. GEICO produced opposing sworn testimony in the form of two affidavits dated June 26, 2006 and March 27, 2008, which were both statements from GEICO’s underwriter Brandy Erskine.1 In the June 25, 2006 affidavit, Ms. Erskine indicated that GEICO generated a Notice of Renewal for Sanchez, posted May 28, 2003 for mailing, and that GEICO would have mailed the Notice of Renewal on May 29, 2003. In the May 27, 2008 affidavit, Ms. Erskine indicated that GEICO never “refused to renew” or “refuse[d] to continue” Sanchez’s policy. Ms. Erskine indicated that Sanchez was sent an offer of renewal, which he failed to accept.
The multiple affidavits attested to by Ms. Erskine do not offend the rule announced by the Florida Supreme Court in Ellison v. Anderson, 74 So. 2d 680 (Fla. 1954) (holding that movant could not file an affidavit repudiating her prior testimony to create a factual dispute, but still finding a genuine issue of fact, based on an inference in an affidavit of another witness). Ellison does not prohibit a party from making a subsequent statement which does not “badly repudiate” but rather clarifies a previous sworn statement. See id at681. This is provided that the subsequent statements’ explanation is credible and not inconsistent with the previous sworn testimony, even though it creates a jury issue on the opponent’s motion for summary judgment. Ouellette v. Patel, 967 So. 2d 1078 (Fla 2d DCA 2007) [32 Fla. L. Weekly D2669a]; Arnold v. Dollar Gen. Corp., 632 So. 2d 1144, 1145 (Fla. 5th DCA 1994); Jordan v. State Farm Ins. Co., 515 So. 2d 1317, 1319 (Fla. 2d DCA 1987); Koflen v. Great Atl. & Pac. Tea Co., 177 So. 2d 529, 531 (Fla. 3d DCA 1965). Ms. Erskine’s subsequent statement clarifies a previous statement.
GEICO’s evidence that it never refused to renew Sanchez’s policy, creates a genuine issue of material fact precluding the trial court’s grant of Sanchez’s motion for summary judgment. Even though a policy has been approved for renewal, it does not mean the insurer must automatically extend coverage where an insured has failed to pay the premium. See Reddick v. Globe Life and Acc. Ins. Co., 596 So. 2d 435 (Fla. 1992) (holding that a letter regarding a renewal notice for an overdue premium must unambiguously state that coverage will terminate if the premium is not received within a specified time frame).
The statutory 10-day notice of cancellation for nonpayment of premium does not apply when an insured fails to exercise a renewal option. Safeco Insurance Co. of America v. Oehmig, 305 So. 2d 52 (Fla. 1st DCA 1975). An insurer is usually under no obligation to provide coverage when a premium is not paid. WJA Realty v. Employee Benefit Claims, Inc., 488 So. 2d 121 (Fla. 3d DCA 1986). An insured’s failure to pay when a premium notice is sent, results in a lapse in which no further coverage will be afforded. Williams v. Security Mutual Casualty Co., 377 So. 2d 733 (Fla 3d DCA 1980). Section 627.728(4)(a) of the Florida Statutes usually requires notice of refusal by the insurer to renew insurance coverage, but does not apply where there is a “nonpayment of premium.” Travelers Indem. Co. of Rhode Island v. Mirlenbrink, 345 So. 2d 417 (Fla. 2d DCA 1977).
Moreover, GEICO was entitled to the reasonable inference that the policy lapse was not due to an improper policy renewal. Wills v. Sears, Roebuck & Co., 351 So. 2d 29 (Fla. 1977) (in summary judgment, facts must be construed against movant). GEICO’s policy provision as worded only imposes a 45-day notice requirement, when GEICO refuses to renew.
Under the inference, when looking at the facts, Sanchez was required to take steps to avoid the policy lapse. However, he brought forth no evidence showing that he took any steps before the policy lapse. Sanchez only argues that GEICO violated its policy provisions regarding renewal. Even in the light most favorable to Sanchez, the wording in GEICO’s policy does not support a reading that GEICO violated its policy requirements. The policy wording reveals quite the contrary. On Page 16 of 17 of the Policy, in Section 8 regarding “Renewal,” the policy states that if “you do not pay the premium as required to renew this policy” that “it will be construed to mean that you have refused our renewal offer and the policy will expire without notice.”
Under GEICO’s theory, the insured refused its offer of renewal, thus no further notice of coverage expiration was required to be sent by GEICO. As such, the insured elected to purchase coverage with Progressive Insurance Company thereafter. Consequently, GEICO was under no obligation to extend further coverage where Sanchez refused to renew his insurance coverage, and purchased a policy with another carrier. Valdivia v. St. Paul Fire & Marine Ins. Co., 847 So. 2d 514 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D849a] (finding where insured refused to renew, and purchased coverage with another insurer, that prior insurer could not be forced to extend coverage due to its sending out a subsequent improper cancellation notice). The lower court should not have granted Sanchez’s motion for summary judgment on these facts.
Because Appellee is not the prevailing party on appeal, appellate attorney’s fees are not attainable. § 627.428(1), Fla. Stat. (2010). Moreover a review of Section 627.7277 of the Florida Statutes does not appear to authorize the remedy of awarding monetary damages when an insurer violates the notice requirements of the statute.
For these reasons, we reverse the grant of summary judgment, and direct the lower court to vacate the order granting final judgment in favor of Appellee, and this cause is remanded to the trial court for further proceedings consistent with this opinion.
REVERSED and REMANDED. (SCHWARTZ and EMAS, J., concur.)
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1She authored the first affidavit under the name of Brandy Brandt.
