6 Fla. L. Weekly Supp. 467a

Insurance — Cancellation of policy — Action against insurer which refused to pay claim for stolen vehicle on ground that policy had been canceled — Evidence presented by insured was sufficient to create jury issue as to whether or not insured actually received notice of cancellation which insurer contended it had mailed

SECURITY NATIONAL INSURANCE COMPANY, Appellant, vs. THE VILLOLDO GROUP, INC., Appellee. 11th Judicial Circuit in and for Dade County, Appellate Division. Case No 97-270AP. County Court Case No. 95-1802 CC25. Opinion filed April 23, 1999. An Appeal from the County Court of Dade County, Jeffrey Swartz, Judge. Counsel: Eduardo J. Serer, Rosner & Simon and Jeanne Heyward, for Appellant. Leo Benitez, Leo Benitez, P.A., for Appellee.

(Before KAHN, SIEGEL and LANGER, JJ.)

(MARTIN KAHN.) A vehicle owned by the Appellee, The Villoldo Group, Inc. (Villoldo), was stolen, and a claim was made to the insurer, Appellant, Security National Insurance Company (Security). Security refused to pay, claiming that it had earlier canceled the policy, and had sent the required notice per Fla. Stat. 627.728(3)(a). Villoldo claims never to have received the notice, and the jury agreed. It is from the judgment based on the jury verdict that Security brings this appeal.

Security argues that Section 627.728(5) states that U.S. Postal proof of mailing “shall be sufficient proof of notice.” Security provided that proof, and posits that an irrebuttable presumption was thereby created, and that it was entitled to prevail as a matter of law.

The learned trial judge disagreed, and permitted the matter to be decided by the jury. At the trial Villoldo presented evidence to support its contention that notice was not received. In addition to denial of receipt by Villoldo’s representative, the evidence included testimony of the postal service employee that although the proof of mailing was signed, there was no independent verification that Villoldo’s notice was included in the several notices that were mailed at the time. Other evidence showed that a copy of the notice sent to the insurance agent was not received. Also not received was a copy sent to the lien holder.

It is clear that denial of receipt of notice, without more, is insufficient to overcome the presumption that notice was received. Ruiz v. Fortune Ins. Co., 677 So.2d 1335 (Fla. 3d DCA 1996). We conclude, however, that the presumption can be rebutted if there is evidence beyond mere denial of receipt. See e.g. Malone v. City of Satellite Beach, 716 So.2d 857 (Fla. 5th DCA 1998); Liberty Mutual Ins. Co. v. Lyons, 622 So.2d 621 (Fla. 5th DCA 1993); Migliore v. Migliore, 717 So.2d 1077 (Fla. 4th DCA 1998). It is acknowledged that these three cases do not involve Section 627.728(5), but we find that the distinction is of no significance. In this case, there was substantial evidence beyond mere denial of receipt, and we agree with the trial judge that it was appropriate for the jury to make the determination as to whether or not the notice was actually received.

We find the Appellant’s other points to be without merit.

Affirmed. (LESTER LANGER, J., concurs. PAUL SIEGEL, J., dissents, with written opinion.)

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(Siegel, J. dissenting.) An auto insurance policy cannot be canceled unless a notice of cancellation is mailed to the named insured Fla. Stat. § 627.728(3)(a). United States postal proof of mailing of a notice of cancellation to the named insured at the address shown in the policy shall be sufficient proof of notice. Fla. Stat § 627.728(5). The latter statute is clear on its face, but the trial judge amended the statute to add a provision that the United States postal proof of mailing can be rebutted by clear and convincing evidence. It is apodictic that a court cannot amend a statute. Notwithstanding the magnificent proofs offered by the plaintiff that the notice of cancellation was not received, the defendant insurance company was entitled to a summary judgment and a directed verdict of no liability. See Glenny v. The Service Insurance Co., 660 So. 2d 1132 (Fla. 4th DCA 1995). The majority admits, and I agree, that the cases it relies on have nothing to do with section 627.728(5) and, thus, the present dispute. The judgment below should be reversed.

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