2 Fla. L. Weekly Supp. 282a
Insurance — Cancellation of policy — Insurer who cancels insurance contract upon receipt of request for cancellation by premium finance company must prove that premium finance company complied with notice provisions of statute in order to avoid liability under contract
GLORIA J. KELLEY AND TWALA B. KELLY, Appellant, v. UNION GENERAL INSURANCE COMPANY, AND MANNY’S INSURANCE AGENCY, INC., Appellees. 11th Judicial Circuit in and for Dade County, Appellate Division. Case No. 93-081 AP. May 13, 1994. An Appeal from County Court for Dade County, Lester Langer, Judge. Michael Lechtman, for Appellant. Michael Arington, for appellee.
(Before GISELA CARDONNE, CELESTE H. MUIR, AND PAUL SIEGEL, JJ.)
(GISELA CARDONNE, J.) The decision of the trial court dismissing the defendant insurance company is reversed. Insurance Company of North America v. Cooke, 624 So. 2d 252 (Fla. 1993).
This case involves the issue of whether § 627.848, Fla. Stat., allows an insurer to cancel an insurance contract upon receipt of a request for cancellation by the finance company, without any confirmation that the finance company met the notice requirements of Subsection (1), and where the finance company had a power of attorney from the insured.
The parties agree that the Supreme Court’s decision in Cooke, supra, would be dispositive in this case and the decision was issued shortly before oral argument herein.
The Supreme Court states that:
Compliance with the notice requirements of subsection (1) is a condition precedent to the mailing of the request for cancellation to the insurer by the finance company. If the requisite notice is not given, the premium finance company has no authority to seek cancellation of the policy. Thus, even if cancellation under the statute were by the finance company rather than by the insurer, as claimed by INA (the insurance company), the request for cancellation is a nullity unless notice has been given in accordance with subsection (1).
Cooke, at 255.
The Court then rephrased the question in the affirmative and held that:
…[W]here an insured denies receipt of the notice of intent to cancel required by section 627.848(1), an insurer who raises the defense of cancellation under section 627.848 must prove that the premium finance company complied with the provisions of the statute in order to avoid liability under a contract of insurance.
Cooke, at 255.
At the time of the trial below the Court did not have the benefit of the holding of the Supreme Court in Cooke. At this time, the case is reversed and remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED. (CELESTE H. MUIR and PAUL SIEGEL, JJ. concur.)
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