10 Fla. L. Weekly Supp. 470a
Insurance — Personal injury protection — Coverage — Denial — Cancellation of policy — Notice — No error in instructing jury that issue for determination was whether insurer proved it mailed notice of cancellation of policy for nonpayment of premium and in refusing to give proposed instruction that issue was whether insured received cancellation notice — No error in denial of request to instruct jury as to whether insured’s agent received cancellation notice and denial of motion of directed verdict on this point where issue was raised for first time at charge conference of second trial after both parties had rested
BRENDA TORGERSON, Appellant, vs. ALLSTATE INSURANCE COMPANY, Appellee. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 01-8314-CI-88A. UCN522001**006667XXCI*P. May 13, 2003. John A. Schaefer, Judge. Appeal from Final Judgment, Pinellas County Court, County Judge Walter Fullerton. Counsel: Mark A. Boyle, for Appellant. Anthony J. Parrino, for Appellee.
ORDER AND OPINION
THIS CAUSE came before the Court on appeal, filed by Brenda Torgerson (Torgerson), from the Judgment, entered August 7, 2001, in favor of Allstate Insurance Company (Allstate). Upon review of the briefs, the record and being otherwise fully advised, the Court affirms the lower court’s ruling as set forth below.
This is the second appeal from the same parties stemming from the same underlying cause of action. The record shows that Torgerson filed a complaint against Allstate seeking personal injury protection (PIP) benefits after Torgerson was involved in an automobile accident on September 12, 1995. Allstate refused to pay PIP benefits, asserting that Torgerson’s policy of insurance had been cancelled on September 3, 1995, for non-payment of the monthly premiums. The fundamental issue in both trials was whether Allstate properly cancelled Torgerson’s policy pursuant to Florida Statutes 627.728(3)(a), which states,
No notice of cancellation of a policy to which this section applies shall be effective unless mailed or delivered by the insurer to the named insured and to the named insured’s insurance agent at least 45 days prior to the effective date of cancellation, except that, when cancellation is for nonpayment of premium, at least 10 days’ notice of cancellation accompanied by the reason therefore shall be given. (emphasis added).1
The first jury trial, held on August 17-18, 1998, resulted in a verdict in favor of Allstate. This judgment was the subject of a timely appeal to the Sixth Judicial Circuit. On August 7, 2000, this Court, albeit through a different judge, issued an Order and Opinion that reversed and remanded the case for a new trial. Although Torgerson raised a number of issues, the basis of the reversal was the lack of sufficient testimony from Allstate’s representative that the cancellation notice was actually mailed. This Court found that “Allstate’s witness did not prepare the documents nor was she sufficiently acquainted with the activity to competently testify.”
Additionally, this Court went on to clarify, for “the benefit of the trial court and parties on re-trial,” that “the trial judge did not err in declining to give the [particular jury] instruction.”2 Specifically, the pivotal jury instruction given during the first trial was,
The issue for your determination on the claim of the Plaintiff, Brenda L. Torgerson, against the Defendant, Allstate Insurance Company, is whether Allstate proved by the greater weight of the evidence that it mailed notice of cancellation for nonpayment of premium to . . . Plaintiff, Brenda Torgerson, at least 10 days prior to September 3, 1995, the effective date of the cancellation. (Transcript, August 17, 1998, pages 251-252).
Upon remand, the jury instruction given at the conclusion of the second jury trial, held on July 16, 2001, is almost identical. (Transcript, July 16, 2001, page 190).
On the present appeal, Torgerson again argues that the lower court erred in giving this jury instruction and by rejecting her requested jury instruction, that is, “whether BRENDA TORGERSON received a notice of cancellation of her policy prior to the date of her accident on September 12, 1995.” (Record, Page 446). This is the same jury instruction requested in the first trial,3 as it has been Torgerson’s position throughout the course of the parties’ litigation that the burden should have been on Allstate to prove that Torgerson actually received notice of the cancellation. (emphasis added). However, this Court finds that there is no statutory or case law that mandates such a jury instruction.
As set forth above, the plain language of 627.728(3)(a), provides that the notice of cancellation must be mailed or delivered by the insurer at least 10 days before the effective date of cancellation. There is no mention in the statute regarding the insured’s receipt of such notice. In interpreting the provisions of this statute, courts have held that, “ ‘[C]ustomary evidence of mailing . . . is competent proof of that fact [that the cancellation notice was mailed], but may be rebutted by evidence to the contrary, including evidence of nonreceipt, and thereby create a question of fact for the jury.’ ” See Aries Insurance Company v. Cayre, 785 So.2d 656, 660 (3d DCA 2001) (citing Boman v. State Farm Mutual Automobile Insurance Co., 505 So.2d 445 (Fla. 1st DCA 1987)). Hence, the burden was on Allstate to show that it mailed the notice of cancellation, to which Torgerson had the opportunity to rebut. Thereafter, it became a question of fact for the jury to resolve. See id.
Therefore, this Court once again finds that the lower court did not err in refusing to give Torgerson’s proposed jury instruction as the lower court enumerated the clear and unambiguous language of the statute in the instructions given. See Fla. Stat. 627.728(3)(a) (2002); see also Metropolitan Dade County v. Milton, 707 So.2d 913, 914 (Fla. 3d DCA 1998) (citations omitted). Although the lower court had the discretion to frame the issue differently, the jury was nevertheless properly instructed on the law applicable to the facts in evidence and, furthermore, was not misled by the instructions given. See id.; see also Wransky v. Dalfo, 801 So.2d 239, 243 (Fla. 4th DCA 2001) (citations omitted); Tilley v. Broward Hospital District, 458 So.2d 817, 818 (Fla. 4th DCA 1984) (stating that the standard for reviewing the failure to give a jury instruction is “whether… there was a reasonable possibility that the jury could have been misled by the failure to give the instruction”) (citations omitted).
The two remaining issues raised by Torgerson are without merit. Torgerson asserts that the trial court erred in not instructing the jury as to whether Torgerson’s insurance agent, Earl Gainey, received the notice of cancellation and in not granting Torgerson’s motion for a directed verdict on this point. This Court finds that both requests were properly denied as Torgerson was precluded from raising a new issue, Mr. Gainey’s receipt of notice, in the second trial for which no appeal was taken from the first trial. See McDonough Power Equipment, Inc. v. Brown, 486 So.2d 609, 610 (Fla. 4th DCA 1986) (stating that the law of the case precludes relitigation of all issues upon which appeal could have been taken, but which was not appealed) (citations omitted); see also Wroton v. Wash-Bowl, Inc., 456 So.2d 967, 968 (Fla. 2d DCA 1984).
Indeed, the record shows that Mr. Gainey’s receipt of the notice of cancellation was never an issue during the course of either trial, but was raised for the first time at the charge conference of the second trial after both parties had rested. Torgerson’s counsel was apparently aware of his conundrum, as he requested the trial judge to, “. . .amend the pleadings to conform with the evidence and make sure that there is [an] additional sentence placed in the verdict form . . . asking whether or not the insurance agent also got copy of the cancellation as required by Florida law.” (Transcript, July 16, 2001, page 169). Under the facts of this case, this request was properly denied. See id.; see also Tamiami Trail Tours, Inc. v. Cotton, 463 So.2d 1126 (Fla. 1985) (finding that due process prohibited defendants from being found liable on a theory they were first apprised of at charge conference after all evidence had been entered). Accordingly, the lower court did not err in rejecting this requested jury instruction,4 whether Mr. Gainey received the notice of cancellation, nor in denying Torgerson’s motion for directed verdict on this point.
It is therefore,
ORDERED AND ADJUDGED that the Judgment is affirmed. It is further
ORDERED AND ADJUDGED that the Appellant’s Motion to Tax Appellate Attorney’s Fees is denied. It is further
ORDERED AND ADJUDGED that Appellee’s Motion for Attorney’s Fees and Costs is granted, pursuant to Florida Statutes 768.79. The lower court shall determine the amount of costs and reasonable attorney’s fees.
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1There is no dispute between the parties that this is the operable statute in this case.
2Torgerson did not file a motion for rehearing or otherwise challenge this finding.
3Transcript, August 17, 1998, page 185.
4This jury instruction was orally requested at the charge conference and was not a part of the proposed jury instructions filed with the lower court on July 16, 2001.
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