11 Fla. L. Weekly Supp. 909a
Insurance — Builder’s risk — Coverage — Summary judgment — Factual issues — Where affidavit of builder’s office manager stating that she mailed report for home under construction and premium for builder’s risk policy before loss establishes prima facie proof that report and premium were received by insurer, and insurer’s affidavit states that insurer never received report and premium, factual dispute as to whether report and premium were received precludes entry of summary judgment
PETER ROSENBERG d/b/a MONOPOLY BUILDERS, Plaintiff, vs. ASSURANCE COMPANY OF AMERICA, Defendant. Circuit Court, 20th Judicial Circuit in and for Lee County, Civil Action. Case No. 02 CA 1014 L. August 2, 2004. R. Thomas Corbin, Judge. Counsel: Gerald T. Albrecht, for Defendant. Michael A. Pohl, for Plaintiff.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This matter having come before the court on July 26, 2004, on the defendant’s Motion for Summary Judgment, it is ordered:
The motion is denied. This case is about a “builder’s risk” policy. The plaintiff is a builder specializing in the construction of single family homes, and for some years before February 2001 had such a policy with the defendant. Under the terms of the policy the plaintiff was required to report and pay a premium for all homes commenced during any calendar month by the end of the next month. Paragraph 4 of the policy provides, in part:
“a. Each month you must report to us the total estimated completed values of all Covered Property for each location started during the previous month. This report must be made on the form we provide.
…
b. You must pay premiums based on the total estimated completed value of the Covered Property using the rate we furnish. You must send your premium payment with the report for the reported locations to be covered. We must receive your report and the accompanying premium payments at the address designated in our form by the last day of the month in which the report is due, or the report is late.
c. If a report is received late, coverage begins on the day the report is received, and there is no coverage for any loss that occurred before that report was received. Our acceptance of a report of values and premium payment does not waive or change ay part of this policy nor stop us from asserting any right we have under the terms of this policy.
. . .”
The plaintiff began construction of the “Menth” home during February 2001. The affidavit of the plaintiff’s bookkeeper says she issued a check for the premium due on the Menth home on February 23, 2001 and mailed it to the defendant along with a report for the Menth home. She also says that by the end of March 2001 the check had not cleared the plaintiff’s bank account and the plaintiff does not have a copy of the canceled check. The defendant’s affidavit says it never received a report or a premium for the Menth home although it received reports and premiums for other homes at various times between May 2000 and December 2001.
In July 2001 a toilet in the Menth home malfunctioned, leaked and caused extensive water damage. The plaintiff made a claim under the policy and the defendant denied it. This lawsuit followed.
In support of its motion, the defendant cites the court to two decisions that involve “builder’s risk” policies with language that is very similar to the language in the policy in this case: America’s Dream Homes, Inc. v. Insurance Company of America, 693 A.2d 517 (N.J.Super.A.D. 1997) and Tapatio Springs Builders, Inc. v. Maryland Cas. Ins. Co., 82 F.Supp.2d 633 (W.D. Tex. 1999).
In America’s Dream Homes, Inc. the appellate court reversed the trial court’s summary judgment for the builder. Id. at 549. The lower court held there was coverage for losses for which reports and premiums were mailed before the due date, that is, the last day of the month following the month for which the reports and premiums were made, but not actually received by the insurance company until after the due date. The lower court reasoned that each month the insurance company made an “offer” when it sent a report form to the insured, which “offer” was accepted by the insured when it put a completed report and a check the mail. Thus, the lower court ruled the reports and the premiums were deemed received on the date they were mailed and not the day they were actually received by the insurance company. Id. at 548. The appellate court reversed and ruled there was “no series of mini-offers to be ‘accepted’ ” by the builder when it mailed a report and a premium. Id. at 549. The appellate court directed the trial court to consider the language of the policy and whether the insurance company’s proof regarding the actual dates of receipt had been contested by the builder, and “[i]f factual accuracy is deemed sufficiently contested under the amended Rule, the judge shall resolve the date of receipt issue by holding a plenary hearing. . .” Id. at 550.
America’s Dream does not support the defendant’s motion. The issue there was when a report and a premium were received by the insurer not whether these were received. Here, actual receipt is the issue.
Likewise, Tapatio Springs Builders, Inc. does not support the defendant’s motion. In that case a federal district court construing Texas law granted the insurance company’s motion for summary judgment. The court found the builder started construction of a home in February 1998 but failed to include the home in any report for the months of February, March, April, and May. On June 21, 1998, a fire destroyed the home and the next day the builder sent a report for the home and a check, intending that coverage would be effective May 1, 1998. The report listed the destroyed home for the first time as a “new start.” Id. at 637. The builder also listed the home as a “previous construction” in the June report that was due by the end of July. Id. The insurance company received both reports before their due dates and accepted both premiums but later denied coverage and returned the premium when it learned that construction of the home had begun in February. Therefore, the parties did not dispute what had been sent and whether it had been received. Actual receipt was not the issue.
The plaintiff in this case argues the “mail box rule” creates an issue of fact because under that rule evidence of mailing is prima facie proof of receipt. See, e.g., Moses v. Bystrom, 489 So.2d 834 (Fla. 3d DCA 1986) (“We do agree, however, that the issue of whether the return was in fact delivered and filed was not properly resolved by summary judgment. It is well-settled that the fact, as is claimed in this case, that correspondence is properly addressed and mailed constitutes prima facie evidence — or otherwise stated, creates a ‘presumption’ — that it was received by the addressee. Citations omitted. . . .In accordance with this rule, appropriate mailing will alone support a finding that the item was received, even in the face of evidence such as that produced by the court below which indicates that it was not.” Id. at 836.); Progressive American Insurance Company, v. Kurtz, 518 So.2d 1339 (Fla. 5th DCA 1988) (“. . .mail properly addressed, stamped, and mailed is presumed to have been received by the addressee and proof of general office practice can satisfy the requirement of due mailing.” Id. at 1341).
The affidavit of the plaintiff’s office manager says she mailed a report and a check for the Menth premium to the defendant during the month of February 2001 or thereafter and “certainly” before the loss in July 2001. This affidavit establishes prima facie proof that the report and the premium were received by the defendant. On the other hand, the defendant’s affidavit says it never received a report and a premium for the Menth home.
These affidavits set up a dispute of fact about whether the report and the premium were received by the defendant. The parties agree that receipt of a report and a premium is required by the policy. Therefore the court must deny the defendant’s motion. This dispute must be resolved by evidence at trial.
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