5 Fla. L. Weekly Supp. 155a
Insurance — Automobile — Cancellation of policy — Unjust enrichment — Action against insurer by insured whose policy was cancelled after he failed to respond to notice of additional premium due — Counts seeking declaratory relief dismissed on ground that there are no future rights to be determined between the parties — Claim for unjust enrichment not available where there is adequate remedy at law — Contract between parties, as well as applicable statutory and administrative code provisions give plaintiff an adequate legal remedy — Underwriting delays — Insurer was in compliance with time requirements of administrative code where it completed underwriting and made final determination of correct premium within 60 days after effectuation of coverage — Notice of correction sent to insured the day following final determination of correct premium satisfies “immediately” notice requirement of statute — Excessive cancellation intervals — Letter sent to insured did not comply with requirements of statute where letter stated that if insured elected not to respond, notice of cancellation would be sent to policyholder at later date, rather than specifying cancellation date — Statute clearly requires that cancellation date be specified in option letter — Absence of prejudice is not defense to strict compliance with statutory notice requirement — Motion to dismiss claim alleging excessive cancellation interval denied
JOSE M. DAVILLA, Plaintiff, v. MERCHANTS AND BUSINESS MEN’S MUTUAL INSURANCE COMPANY, Defendant. 11th Judicial Circuit in and for Dade County, General Civil Jurisdiction. Case No. 96-6893 CA 04. November 24, 1997. Steve Levine, Judge.
ORDER GRANTING IN PART, DENYING IN PART THE DEFENDANT’S MOTION TO DISMISS
This Cause came before the Court on November 14, 1997 upon Defendant’s Motion to Dismiss various counts in Plaintiff’s Second Amended Complaint. The Court, having heard the arguments of Counsel and having reviewed the applicable law, makes the following findings of fact and conclusions of law:
FINDINGS OF FACT
The relevant facts in this case are essentially uncontested for purposes of this Motion. On July 5, 1995, Plaintiff Davilla purchased an automobile insurance policy from Defendant Merchants and Business Men’s Mutual Insurance Company [hereinafter Merchants], through an authorized agent. On September 5, 1995, Merchants concluded that the agent had calculated and charged an incorrect premium for the insurance policy. On September 6, 1995, Merchants mailed Davilla a Notice of Additional Premium Due, a copy of which is attached to this Order [exhibit omitted]. The letter gave Davilla three options with regard to the higher premium claimed by Merchants. The third option C stated “You need not reply and the company will mail a direct notice of cancellation for non-payment of additional premium on 09/23/95.” Davilla did nothing in response to the Notice of Additional Premium Due. On October 5, 1995, Merchants mailed Davilla a Cancellation Notice, a copy of which is attached to this Order [exhibit omitted], which notified Davilla that coverage under the original insurance policy would terminate on October 19, 1995.
Davilla’s original premium paid to the agent on July 5, 1995 would have insured him through January 5, 1996 at the quoted rate. The higher premium rate calculated by Merchants on September 5, 1995 was applied retroactively by Merchants to the policy so that coverage under the original payment was for a much shorter time period.
CONCLUSIONS OF LAW
Plaintiff seeks to bring a declaratory action in Counts 1 (underwriting delay), 4 (cancellation interval), 7 (gross v. net), 10 (late net refund), and 13 (late refund). Declaratory actions are intended to afford relief from insecurity and uncertainty with respect to rights, status, and other equitable or legal relations. Travelers Ins. Co. v. Emery, 579 So.2d 798 (Fla.App. 1 Dist. 1991). The parties in this case are no longer seeking enforcement of contractual obligations or clarification of rights that pertain to them in their present dealings. The contract for insurance is terminated, and the parties have adequate remedies at law to redress any proven wrongs. There are no future rights to be determined between these parties. Therefore, the Court grants the Motion to Dismiss said Counts.
In Counts 2, 5, 8, 11, and 14, Plaintiff alleges actions for indebitatus assumpsit, or what is now typically referred to as unjust enrichment. A claim for unjust enrichment is not available when there is an adequate remedy at law, such as breach of contract. Unjust enrichment is an equitable remedy that implies a contract between the parties. Here, there is an actual contract, as well as applicable statutory and code provisions that give Plaintiff an adequate legal remedy. Bowleg v. Bowe, 502 So.2d 71 (Fla.App. 3 Dist. 1987). See also, Martinez v. Weyerhaeuser Mortg. Co., 959 F. Supp. 1511 (S.D.Fla., Aug. 30, 1996). Therefore, the Court grants the Motion to Dismiss said Counts.
Defendant also asserts that Counts 1, 2 & 3 should be dismissed. These Counts allege an underwriting delay by Merchants. Florida Administrative Code, Section 4-167.002 requires an Insurance Company to complete the underwriting of the policy and make a final determination of the correct premium within 60 days after the effectuation of coverage. Coverage was initiated in this case on July 5, 1995. Florida Rule of Civil Procedure 1.090(a) provides the method for calculating time periods under rules and statutes. When a time period imposing a legal obligation on a party ends on a weekend or legal holiday, it is the next business day that becomes the final day of the time period. The 60th day in this case would have fallen on Sunday, September 3, 1995. Since Monday September 4, 1995 was Labor Day, the next business day would be Tuesday, September 5, 1995. In fact, that is the day that the Insurance Company made the final determination of the correct premium. Accordingly, the Insurance Company is in compliance with the time requirements of the Florida Administrative Code. The Court also notes that the Defendant Merchants sent notice of the correction to the Plaintiff policyholder the very next day, which satisfies the “immediately” notice requirement of Florida Statutes, Section 627.7282. The Motion to Dismiss the claims for underwriting delay is therefore granted.
Defendant next asserts that Counts 4, 5, & 6 (excessive cancellation interval claims) should be dismissed because the insurance company in fact complied with the “three option letter” requirement of Florida Statutes, Section 627.7282. The Defendant admits that the letter is technically deficient in that Option C of the letter says that a notice of cancellation will be sent to the policy holder at a later date, rather than specifying the cancellation date in the option letter as required by the statute. Essentially, Defendant argues that the letter complies with the spirit of the law, and that Plaintiff was not prejudiced by the nonconformity because the subsequent cancellation notice in fact canceled the policy with the specified time period of not less than 14 days and not more than 45 days. Florida Statutes §627.7282(1)(c); Florida Administrative Code §4-167.002(3). Florida courts have consistently held that the requirements of Florida Statutes, Section 627.7282 are clear and unambiguous. The statute must be given its plain and ordinary meaning. The option letter must provide a specified cancellation date. It cannot provide for a separate, future cancellation notice. Aries Ins. Co. v. Aleman, 695 So.2d 910 (Fla.App. 3 Dist., 1997); Sotomayor v. Seminole Cas. Ins. Co., 650 So.2d 663 (Fla.App. 5 Dist. 1995); Pierson v. State Farm Mut. Auto. Ins. Co., 621 So.2d 576 (Fla.App. 2 Dist. 1993). The absence of prejudice is not a defense to strict compliance with the statutory notice requirement.
In summary, the Court Grants the Motion to Dismiss as to all Counts in the Complaint seeking declaratory relief. All Counts seeking damages for unjust enrichment and underwriting delay are also dismissed. The dismissals are with prejudice. The Motion to Dismiss is Denied as to Counts alleging an excessive cancellation interval for failure to comply with the notice requirements of Florida Statutes §627.7282.
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