7 Fla. L. Weekly Supp. 703a
Insurance — Cancellation of policy — Evidence — Hearsay — Business records — Error to permit insurer to introduce into evidence a notice of cancellation with insured’s name and address on it and a computer-generated log purporting to show that notice had been sent where insurer’s witness did not prepare the documents, was not records custodian, and did not know usual procedure for preparing documents — No merit to insured’s claim that there is higher standard of proof that insurer has to meet to establish that cancellation notice has been sent — Statute providing that postal proof of mailing or certified or registered mailing of notice of cancellation shall be sufficient proof of notice does not mandate certified or registered mail as exclusive way of mailing notice of cancellation
BRENDA TORGERSON, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 98-6203 CI-88B. Opinion filed August 7, 2000. David A. Demers, Judge. Appeal from a judgment entered by the Pinellas County Court, Judge Michael Andrews. Counsel: Timothy Patrick, for appellant. Anthony Parrino, for appellee.
ORDER AND OPINION
THIS MATTER is before the Court on Brenda Torgerson’s appeal from an adverse judgment entered by the Pinellas County Court following a jury trial. After reviewing the briefs and record, this Court reverses the judgment.
This appeal arises out of a dispute over insurance coverage. The appellant, the insured in this case, sued the appellee, Allstate, claiming that it improperly refused to pay her claim for medical expenses incurred as a result of an automobile accident. Allstate claimed that the policy was canceled. The insured claimed that she never received notice of the cancellation of the policy. The case went to a jury trial, and Allstate prevailed. The insured has appealed.
Initially, the insured claims that there is a higher standard of proof that an insurance company has to meet to establish that a cancellation notice has been sent. In support of his argument the insured cites Bowman v. State Farm Mutual Automobile Insurance Co., 505 So.2d 445 (Fla. 1st DCA 1987). Bowman does not construe §627.728(5) Fla. Stat. (1999) as mandating certified or registered mail as the exclusive way of mailing notice, but rather it construes it as the only way that a presumption of mailing can be established. It specifically permits other evidence of mailing and says that in the absence of evidence of the statutory method, there is a genuine issue as to whether the notice was sent, and summary judgment would be inappropriate.
Next, the insured argues that the trial court erred in admitting into evidence Allstate’s notice of cancellation and its computer-generated log. At trial, the insured claimed that she was the only person who received the mail at her address, and that she never received a copy of the cancellation. Allstate, however, introduced over objection a notice of cancellation with the insured’s name and address on it and a computer-generated log purporting to show that the notice had been sent. Both the notice and the log were made in Texas. Allstate’s witness did not actually make the documents. Instead, the witness tried to rely upon them as business records. The witness, however, was not the records custodian and did not know the usual procedure for preparing the documents. She had never been to the Texas facility and had virtually no knowledge of how they were generated. The witness only knew that they were in her file. The knowledge of her own file does not establish how they were prepared — only that they are in her file.
As noted in the insured’s brief, the case of Specialty Linings, Inc. v. The B.F. Goodrich Co., 532 So.2d 1121 (Fla. 2d DCA 1988) is similar. In Specialty Linings the general manager of a creditor was testifying about a bill. On cross-examination, he admitted that he knew nothing about the actual preparation of the computer-generated bill. He stated that a separate department, computer services, was actually responsible for generating the bill. The Court of Appeal found that the manager’s testimony was insufficient because he was not the custodian of the record, and he was not otherwise a qualified witness. Neither he nor anyone under his supervision prepared the statement. He was not in charge of the activity constituting the usual business practice. He was not well enough acquainted with the activity to give testimony.
Similarly, Allstate’s witness did not prepare the documents nor was she sufficiently acquainted with the activity to competently testify. The appellate court in Specialty Linings held that under similar circumstances a new trial was necessary. In the case at bar, this Court must reach the same conclusion. Although the trial judge seemed to recognize the insufficiency of the foundation when he struck the witnesses’ testimony as to what occurred in the mailroom in Texas, this did not cure the problem.
This Court’s ruling on the second issue renders the third and fourth issues moot. Nevertheless, this Court will address the jury instruction issue for the benefit of the trial court and parties on re-trial. The appellant claims the trial court erred in not giving a particular jury instruction. The trial judge did not err in declining to give the instruction. There is no higher burden. The statute establishes a presumption, but, as noted previously in this opinion, other methods of proof are acceptable.
IT IS THEREFORE ORDERED that the judgment is reversed, and this matter is remanded to the trial court for action consistent with this opinion.
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