16 Fla. L. Weekly Supp. 753a
Online Reference: FLWSUPP 168GREEN
Insurance — Personal injury protection — Coverage — Cancelled policy — Where insured had notice of additional premium due on PIP policy and opportunity to pay premium and maintain policy but failed to do so, policy was cancelled prior to date of accident, and accident is not covered loss
CYNTHIA GREEN, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 08-05000 SP 05. June 8, 2009. Shelley Kravitz, Judge. Counsel: Aubrey G. Rudd, for Plaintiff. Majid Vossoughi, Majid Vossoughi, P.A., Miami, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT AND FINAL JUDGMENT IN FAVOR OF DEFENDANT
THIS CAUSE came before the Court on the 7th day of May 2009 on Defendant’s Motion for Final Summary Judgment and was heard at 2:00 P.M. at the Miami- Dade County Courthouse, 73 West Flagler Street, Miami, Florida 33131. Majid Vossoughi, Esq., appeared on behalf of the Defendant, United Automobile Insurance Company, and Aubrey G. Rudd, Esq., appeared on behalf of the Plaintiff, Cynthia Green. This Court reviewed Defendant’s Motion for Summary Final Judgment and having heard argument from counsel for both parties and being otherwise fully advised in the premises makes the following factual findings and conclusions of law.
FACTUAL FINDINGS
1. Plaintiff, Cynthia Green, is claiming Personal Injury Protection (“PIP”) benefits under a policy of insurance issued by Defendant, United Automobile Insurance Company, to Jadean L. Liburd, for an accident that occurred on 05/18/07.
2. Specifically, Cynthia Green alleges that the Defendant, United Automobile Insurance Company, failed to pay PIP benefits in violation of Florida’s No-Fault Law and that PIP benefits are due and owing Plaintiff for services rendered by Comprehensive Healthcare Centers.
3. Defendant disclaims liability for PIP benefits and claims that there is no coverage for Plaintiff’s accident of 05/18/07. Specifically, Defendant claims that the policy of insurance issued to Jadean L. Liburd expired at 12:01 A.M. on 05/07/07 and prior to Plaintiff’s alleged accident of 05/18/07 for non-payment of additional premiums. Accordingly, Defendant claims that at the time of the accident of 05/18/07 there was no contract of insurance with Defendant that would otherwise inure to the benefit of Plaintiff.
4. The record evidence before the Court reflects that on 03/28/07 and pursuant to Fla. Stat. 627.7282, Defendant issued notice to its insured, Jadean L. Liburd, that an additional premium of $422.18 is due under his policy of insurance with Defendant and that failure to pay the additional premium will result in cancellation of his policy for non-payment of premium on 05/07/08.
5. The record evidence before the Court further reflects that despite prior notice and an opportunity to maintain his policy of insurance in full force under its original terms, Jadean L. Liburd failed to pay the additional premiums due under his policy of insurance and that his policy of insurance was cancelled effective 12:01 A.M. on 05/07/07.LEGAL ANALYSIS
1. Fla. Stat. 627.7282 dictates the procedure for cancellation of a policy of insurance for non-payment of additional premiums due and owing to an insurance carrier.
2. Fla. Stat. 627.7282 provides:
627.7282. Notice of additional premium; cancellation upon nonpayment.
(1) Upon a determination by an insurer that, in accordance with its rate filings and the applicable laws of this state relating to private passenger motor vehicle insurance, a policyholder has been charged a premium that is incorrect for the coverage set forth in the insurance application, the insurer shall immediately provide notice to the policyholder of the amount of additional premium due to the insurer and that the policyholder has the following options:
(a) The policyholder has a period of 10 days, or a longer period if specified by the insurer, from receipt of the notice within which to pay the additional amount of premium due and thereby maintain the policy in full force under its original terms.
(b) The policyholder has a period of 10 days, or a longer period if specified by the insurer, from receipt of the notice within which to cancel the policy and demand a refund of any unearned premiums.
(c) If the policyholder fails to timely respond to the notice, the insurer shall cancel the policy and return any unearned premium to the insured. The date on which the policy will be canceled shall be stated in the notice and shall in no case be less than 14 days after the date of the notice.
(2) The amount of unearned premium due to the policyholder as a result of cancellation in accordance with subsection (1) shall be calculated on a pro rata basis.
(3) No insurer shall unilaterally alter or modify the policy period for a private passenger automobile insurance policy to provide an expiration date that is prior to the date specified in the policyholder’s application, except as provided in this section.
(4) This section shall not be construed to limit insurers’ rights to cancel in accordance with applicable provisions of the insurance code.
(5) The commission may adopt rules prescribing the format of the notice.
3. Accordingly, the statutory prescribed procedure of Fla. Stat. 627.7282(1) offers an insured three options before cancellation of the policy. The three options are: (1) pay the additional premium by the date specified in the notice and maintain the policy under its original terms; (2) cancel the policy by the date specified in the notice and demand a refund of any unearned premiums; and (3) take no action and the insurer shall cancel the policy of insurance and return any unearned premiums.
4. The affidavit of Defendant’s Underwriting Supervisor reflects that on 03/28/07, and pursuant to Fla. Stat. 627.7282, Defendant notified its insured, Jadean L. Liburd, that an additional premium is due under his policy of insurance with Defendant and that failure to pay said additional premium will result in the cancellation of the policy for non-payment of premium on 05/07/07. The record evidence before the Court further reflects that Jadean L. Liburd failed to pay the additional premiums due under his policy of insurance and that his policy of insurance was cancelled effective 12:01 A.M. on 05/07/07.
5. Despite prior notice and an opportunity to maintain his policy of insurance in full force under its original terms, Jadean L. Liburd failed to tender to Defendant additional premiums due and owing under his policy of insurance. Accordingly, this Court finds as a matter of law that the policy of insurance under which Plaintiff brings forth its claim for PIP benefits was cancelled as of 12:01AM on 05/07/07 and prior to the date of Plaintiff’s alleged accident of 05/18/07. Fla. Stat. 627.7282; U.S. Security Insurance Company v. Figueroa, 917 So.2d 901 (Fla. 3rd DCA 2005).
6. A cause of action for breach of contract has three elements: (a) a valid contract; (b) a material breach; and (c) damages. J.J. Grumberg Co., v. Janis Services, Inc., 847 So.2d 1048 (Fla. 4th DCA 2003). Plaintiff’s Complaint fail as a matter of law and Defendant is entitled to judgment as a matter of law since at the time of the accident of 05/18/07 there was no contract of insurance that would inure to the benefit of Plaintiff since the policy of insurance was cancelled as of 05/07/07.
7. Accordingly, Defendant is entitled to judgment as a matter of law as the loss alleged within Plaintiff’s Complaint occurred outside of policy period and is not a loss covered by a policy of insurance issued by Defendant.
ORDERED AND ADJUDGED that Defendant’s Motion for Summary Final Judgment is GRANTED. Final Judgment is hereby rendered in favor of Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, and against Plaintiff, CYNTHIA GREEN. Plaintiff shall take nothing from this action and Defendant shall go hence without day. The Court reserves jurisdiction to award Defendant attorney’s fees and costs, if applicable.
[See 17 Fla. L. Weekly Supp. 201a.]
