8 Fla. L. Weekly Supp. 485a
Insurance — Fire — Cancellation of policy — Breach of contract action against insurer which canceled policy after premium finance company sent notice of cancellation for nonpayment of premium — Valid power of attorney executed by insured authorizing finance company to cancel policy was condition precedent to cancellation — Premium financing agreement and second version of agreement which insurer claims gave finance company authority to cancel the policy are defective — Where record contains no valid power of attorney executed by insured authorizing finance company to cancel policy, and there is no reason to assume that further discovery would uncover such document, partial summary judgment is entered for insured on the issue of coverage
BAMBOO GARDEN OF ORLANDO, INC. d/b/a BAMBOO GARDEN, a Florida corporation, Plaintiff, vs. OAK BROOK PROPERTY & CASUALTY COMPANY, a foreign corporation, Defendant. Circuit Court, 9th Judicial Circuit in and for Orange County, Civil Division. Case No. CI 96-2640, Division 37. May 10, 2001. Jeffords D. Miller, Judge. Counsel: James J. Dowling, Law Offices of Berger and Dowling, Palm Harbor; and C. Richard Newsome, Overchuck, Newsome & Denault, Orlando, for Plaintiff. Andrew P. Rock, Kingsford & Rock, P.A., Maitland, for Defendant.
JUDGMENT FOR PLAINTIFF ON ISSUEOF INSURANCE COVERAGE
THIS CAUSE came before the Court on Plaintiff’s Motion for Partial Summary Judgment upon the issue of liability on April 4, 2001. The Court finds that judgment should be entered in favor of Plaintiff, BAMBOO GARDEN OF ORLANDO, INC. d/b/a BAMBOO GARDEN, a Florida Corporation (hereinafter “BAMBOO”) upon the issue of coverage and against Defendant, OAK BROOK PROPERTY & CASUALTY COMPANY, a foreign corporation, (hereinafter “OAK BROOK”). On the uncontroverted facts and issues of law presented the court finds as follows:
This action is based upon OAK BROOK’s failure to provide coverage to BAMBOO under a policy of insurance for a fire that occurred at Plaintiff’s restaurant on December 12, 1995.
Under controlling Florida law, including the law of this case, the power of attorney employed by Premium Assignment Corporation (hereinafter “PAC”) to cancel Plaintiff’s insurance policy, is defective.
The Fifth District Court of Appeal in Bamboo Garden of Orlando v. Oak Brook Prop. & Casu. Co., 25 Fla L. Weekly D2089 (5th DCA Aug. 31, 2000), ruled that a valid power of attorney executed by Bamboo Garden authorizing PAC to cancel the policy was a condition precedent to cancellation. The District Court also found that the record did not include a power of attorney executed by Bamboo Garden. This decision was filed by the District Court of Appeal on August 31, 2000 and is binding upon this Court.
At this point no new document has been filed of record or produced by Defendant purporting to be a valid power of attorney executed by OAK BROOK. Indeed none has surfaced during the five years this litigation has been pending.
In its responses to Plaintiff’s Request for Admissions No. 17, OAK BROOK admitted that the document attached was a true and correct copy of the Premium Financing Agreement which Defendant claims gave Premium Assignment Corporation the authority to cancel the policy of insurance. This document was previously found by Judge Sprinkle to be defective and was part of the record on appeal. A second version of this financing agreement was also part of the record on appeal and is likewise defective. In any case Defendant has never moved for relief from its admissions which were filed over four years ago. In their same admissions, OAK BROOK admitted that the only reason it canceled the policy was because PAC directed it to do so, (Admissions No. 12).
The Fifth District Court of Appeal found that the power of attorney plays a pivotal role in the overall scheme of Section 627.848, Florida Statutes. That it is the essential document that gives the finance company the authority to act on behalf of the insured in canceling an insurance policy under this statutory scheme.
At this point there is no valid power of attorney of record and there is no reason for this Court to assume that further discovery would uncover such a document.
Under Florida law, OAK BROOK has the burden of proving the affirmative defense of cancellation. Anvil v. Nationwide Mutual Fire Ins. Co., 222 So. 2d 46 (Fla. 3d DCA 1969).
In the absence of a document, executed by BAMBOO and prepared in conformance with the statute showing PAC’s authority to cancel the policy, OAK BROOK’s defense must fail as a matter of law. There is nothing for a jury or trier of fact to determine on this issue.
Accordingly, partial summary judgment is hereby entered in favor of Plaintiff on the issue of coverage in this case. The Court reserves jurisdiction over the issues of damages, costs and attorney fees, including the amount of appellate fees, to be assessed for future determination.
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