13 Fla. L. Weekly Supp. 788a
Insurance — Automobile — Rescission — Return of premiums — Where insurer did not tender to premium finance company all premiums paid by insured, it did not effect common law rescission of insurance policy — Directed verdict in favor of insured affirmed
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. JOSE AVILA, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 05-247 AP and 05-349 AP. L.C. Case No. 02-014653 CC 05. April 25, 2006. An Appeal from the County Court for Miami-Dade County, Roger A. Silver, Judge. Counsel: Michael J. Neimand, Office of General Counsel for United Automobile Insurance Company, for Appellant. Carlos A. Lopez, Jr., Lopez & Best; and Christian Carrazana, Panter, Panter & Sampedro, P.A., for Appellee.
(Before DRESNICK, BLAKE, and PINEIRO, JJ.)
(PER CURIAM.) This appeal is from the trial court’s order that granted a directed verdict in favor of appellee Jose Avila. This Court’s review of said order is de novo. Contreras v. U.S. Sec. Ins. Co., Nos. 4D04-1427, 4D04-4175, 2006 WL 708567, at *3 (Fla. 4th DCA March 22, 2006) [31 Fla. L. Weekly D836a].
The appellant, United Automobile Insurance Company, partially returned the premiums to the premium finance company, Safe Way. See R. at vol. II, Trial Tr., vol. I, 91, 103, May 23, 2005; R. at vol. VII, Trial Tr., vol. VI, 765-66, 768-70, 772, 781, 786, May 26, 2005. There is discussion in the trial transcript that Safe Way is a wholly-owned entity of appellant. See R. at vol. II, Trial Tr. vol. I, 38-40, May 23, 2005.
The trial court did not continue the inquiry concerning proof of the above assertion regarding Safe Way’s status, nor the implications thereof.
We affirm the entry of a directed verdict for appellee. The appellant did not comply with the obligation noted in Bankers v. Gen. No-Fault Ins., Inc., that an insurer must tender all premiums paid by the insured to effect a common law rescission of an insurance policy. Bankers v. Gen. No-Fault Ins., Inc., 814 So. 2d 1119, 1120 (Fla. 4th DCA 2002) (citing Leonardo v. State Farm Fire and Cas. Co., 675 So. 2d 176, 179 (Fla. 4th DCA 1996));§ 627.409(1), Fla. Stat. (1999). Upon viewing the evidence in the light most favorable to the non-moving party, it cannot be said that the trier of fact in the instant case could have reasonably differed as to the establishment of the material facts. McDonald v. McGowan, 402 So. 2d 1197, 1199 (Fla. 5th DCA 1981). Furthermore, the trial court made the correct decision as a matter of law. See Plotch v. Gregory, 463 So. 2d 432, 435 (Fla. 4th DCA 1985). Thus, the judgment below is affirmed.
* * *
