5 Fla. L. Weekly Supp. 208c
Insurance — Automobile — Collision — Cancellation of policy — Failure to pay increased premium imposed because of misrepresentation on application — Insurer’s proof of mailing of notice of cancellation to insured prevails as matter of law over insured’s denial as to its receipt — Summary judgment properly entered in favor of insurer in insured’s action to recover for damage to vehicle
JOEL MONTERO, Appellant, v. ARIES INSURANCE COMPANY, Appellee. 11th Judicial Circuit in and for Dade County, Appellate Division. Case No. 96-317AP. Opinion filed December 5, 1997. An Appeal from the County Court of Dade County. Counsel: Michael J. Feldman, for appellant. Robin Buckner, for appellee.
(Before ALLEN KORNBLUM, ARTHUR L. TAYLOR and SANDY KARLAN, JJ.)
(ALLEN KORNBLUM, J.) This lawsuit involves the cancellation of motor vehicle property damages insurance. The appellant contends that he never received any notice of the cancellation of the insurance policy. On March 4, 1995, appellant applied for an automobile insurance policy with Aries Insurance Company (“the insurance company”). Appellant’s application indicated that neither the appellant nor his brother had any motor vehicle violations.
On March 4, 1995, appellee, issued the collision insurance policy to appellant, effective for one year. On March 29, 1995, the insurance company obtained the driving record of appellant and his brother, which showed motor vehicle violations contrary to appellant’s representation on the initial application. On May 9, 1995, the insurance company mailed a letter to the appellant informing him that because of the misrepresentation on the application, the premium was increased. On June 13, 1995, the insurance company mailed a second letter to appellant canceling the collision policy because the additional premium had not been paid.
On October 26, 1995, appellant’s car was involved in a collision and he made a claim for the damage to it under the insurance policy. The insurance company denied the claim and appellant filed suit to recover the loss to his vehicle. Subsequently, the insurance company moved for summary judgment. The parties filed affidavits in support of their respective positions. On July 16, 1996, the trial court granted final summary judgment in favor of the insurance company. This appeal followed.
The issue in this appeal is whether the appellant can contest the cancellation of the insurance policy by showing that he never received the notice of cancellation from the insurance company. We agree with the trial court that appellant’s argument is misplaced. Specifically, §627.728(5), Fla. Stat. (Supp. 1997) provides in pertinent part that: “United States postal proof of mailing … of reasons for cancellation … to the named insured at the address shown in the policy shall be sufficient proof of notice.” Accordingly, the law is clear that an insurer’s proof of mailing of a notice of cancellation to the insured prevails as a matter of law over the insured’s denial as to its receipt. Ruiz v. Fortune Insurance Company, 677 So. 2d 1336, 1337 (Fla. 3d DCA 1996).
For that reason we find that summary judgment was properly entered in this case.
Affirmed. (ARTHUR L. TAYLOR and SANDY KARLAN, JJ. concur.)
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