16 Fla. L. Weekly Supp. 948c
Online Reference: FLWSUPP 1610KIRK
Insurance — Homeowners — Cancellation — Notice to mortgagee — Uncontroverted affidavit of insurer’s operations manager setting forth proof of mailing notice of cancellation of policy to mortgagee more than ten days before cancellation sustains insurer’s burden to show compliance with notice requirement where policy provides that proof of mailing will be sufficient proof of notice
CONSUELO KIRK and ROBERT KIRK, Plaintiffs, vs. CITIZENS PROPERTY INSURANCE CORPORATION, Defendant. Circuit Court, 18th Judicial Circuit in and for Brevard County. Case No. 05-2007-CA-014869-XXXX-XX. July 27, 2009. Tonya Rainwater, Judge. Counsel: Joseph G. Murasko, Venis & Bowling of Palm Beach, P.A., North Palm Beach. Charles R. Steinberg.
FINAL SUMMARY JUDGMENT
This cause having come before the Court on Defendant’s First Amended Motion for Summary Judgment, and the Court taking into account the record before it, the legal authorities presented and being otherwise fully advised in the premises, finds as follows:
1. The issue of notice of cancellation and of notification of a cancellation to the mortgagee is governed by the insurance policy issued by the Defendant to the Plaintiff.
2. Specifically, paragraphs 15 and 17 of the insurance policy govern the issue of whether or not the mortgagee was properly notified that the policy was cancelled by the sending of a cancellation notice to the insured by the insurer.
3. Paragraph 15 reads as follows:
“15. Mortgage Clause.
If we decide to cancel or not to renew this policy, the mortgagee will be notified at least 10 days before the date cancellation or nonrenewal takes effect.”
4. Paragraph 17, located on the same page, reads as follows:
“17. Cancellation.
a. You may cancel this policy at any time by returning it to us or by letting us know in writing of the date cancellation is to take effect.
b. We may cancel this policy only for the reasons stated below by letting you know in writing of the date cancellation takes effect. This cancellation notice may be delivered to you, or mailed to you at your mailing address shown in the Declarations.
Proof of mailing will be sufficient proof of notice.”
5. Pursuant to the language set forth in Paragraph 17 that “proof of mailing will be sufficient proof of notice” Defendant has sustained its burden to show compliance with Paragraph 15 that the mortgagee was notified at least 10 days before cancellation or nonrenewal takes effect based on the uncontroverted affidavit of its Operations Manager, Amanda Pearson, setting forth the proof of mailing the notice of cancellation to the mortgagee on August 21, 2007, greater than 10 days before the cancellation was to take effect as to the insured.
6. Based on the above-referenced language contained within the insurance policy and the Florida case of Ruiz v. Fortune Insurance Company, 677 So.2d 1336 (Fla. 3rd DCA 1996), Defendant, by virtue of its uncontroverted affidavit of proof of mailing, as set forth above, has sustained its burden to show it complied with Paragraph 15 of the insurance policy that the mortgagee was notified of the cancellation within the time period required.
Based on the foregoing it is ORDERED AND ADJUDGED as follows:
1. Defendant’s First Amended Motion for Summary Judgment is GRANTED.
2. Plaintiffs’, CONSUELO KIRK and ROBERT KIRK, shall take nothing of this action and Defendant, CITIZENS PROPERTY INSURANCE CORPORATION, shall go hence without day.
