8 Fla. L. Weekly Supp. 388a
Insurance — Automobile — Cancellation of policy — Where insurer informed insured that it needed written proof that insured auto had anti-lock brake system and that, in absence of such proof, it could terminate policy for non-payment of an additional premium, and insurer ultimately sent insured a “three-option” letter which gave insured the option of paying the additional premium and maintaining the policy in effect, canceling the policy and receiving a premium refund, or doing nothing, in which case policy would cancel on certain date; and insured was involved in accident on the date specified as the automatic cancellation date, that accident was covered — Where no time of day is specified, agreement contemplates coverage for the entire day — Subsequent notice of cancellation which did include a specific time cannot substitute for the “three-option” letter required by statute — Further, conflicting notices issued by insurance company are resolved in favor of coverage — Any attempt at cancellation by insurer was improper in that no additional premium was owed — Insurer was required by statute to provide premium discount if vehicle was equipped with ABS, it is uncontroverted that vehicle was equipped with ABS, and there is no requirement in the statute that insured provide written proof of ABS
Affirmed at 8 Fla. L. Weekly Supp. 749a
RONALD BELL, Plaintiff, vs. SOUTHERN GROUP INDEMNITY, INC., Defendant. County Court, 6th Judicial Circuit in and for Pinellas County, Civil Division. Case No. 97-8935-CO-42. March 13, 2001. Stephen D. Rushing, Senior Judge. Counsel: Barry E. Berger and James J. Dowling, Law Offices of Berger and Dowling, Palm Harbor, for Plaintiff. J. Emory Wood, Wood and Associates, P.A., St. Petersburg, for Defendant.
JUDGMENT FOR PLAINTIFF ON ISSUE OF INSURANCE COVERAGE
COMES NOW Plaintiff, RONALD BELL, and states that this action was heard on Plaintiff’s Motion for Partial Summary Judgment upon the issue of liability at the pre-trial conference on February 20, 2001. On the uncontroverted facts and issues of law presented the court finds as follows:
1. There is no genuine issue of material fact and upon the undisputed facts Plaintiff is entitled to judgment as a matter of law.
2. This is a first party insurance litigation over coverage under a policy of automobile insurance issued by Defendant, SOUTHERN GROUP INDEMNITY COMPANY, to Plaintiff, RONALD BELL.
3. The policy was applied for on August 30, 1997. Mr. Bell financed the premium and the policy was issued on September 5, 1997. The premium for the policy was calculated based upon information in the application including Mr. Bell’s assertion that his 1994 Ford Mustang had an anti-lock brake system (ABS).
4. Subsequent to issuing the policy Defendant informed Mr. Bell that it needed further proof that the auto had ABS. As it happens, it is now uncontroverted that the car had ABS. Nevertheless, Defendant contends it was entitled to compel Mr. Bell to furnish written proof of ABS and, in the absence of such proof, it could terminate the policy for non-payment of an additional premium in the amount of $17.00.
5. In October 1997, Defendant sent Mr. Bell what is referred to as a “three-option” letter. This letter is required by Section 627.7282, Florida Statutes, when an insurer determines it is owed a higher premiumthan it initially charged. In this case, Defendant determined that without written proof of ABS, Mr. Bell owed it an additional $17.00.
In the “three-option” letter, Defendant informed Mr. Bell that he had the option to pay the $17.00 and maintain the policy in effect, or he could cancel the policy and receive a premium refund. His final option was to do nothing in which case his policy would cancel on November 22, 1997. The letter does not indicate a time of day for cancellation.
6. As it happens Mr. Bell did not pay the $17.00 and he was involved in an accident on November 22, 1997. Defendant took the position that the policy was not in force when the accident occurred. This suit followed.
7. The policy was in effect when the accident occurred because, by its own terms, the “three-option” letter represents Defendant’s agreement that the policy would not terminate until November 22, 1997. Under Florida law, where no time of day is specified, such an agreement contemplates coverage for the entire day of November 22, 1997. Silvernail v. American Fire and Casualty, 80 So.2d 707 (Fla. 1955).
8. Defendant claims that its subsequent notice of cancellation which does include a specific time (12:01 a.m. on November 22, 1997) should be given effect over the “three-option” letter. This argument was rejected in Sotomyer v. Seminole Casualty Ins. Co., 650 So.2d 663 (Fla. 5th DCA 1995) where the District Court found that a subsequent notice of cancellation cannot substitute for the “three-option” letter required by Section 627.7282(1), Florida Statutes.
9. Also, under Florida law, conflicting notices issued by an insurance company are resolved against the company and in favor of coverage. Pike v. National Fidelity Life Ins. Co., 377 So.2d 973 (Fla. 3d DCA 1979); Aries Ins. Co. v. Aleman, 695 So.2d 910 (Fla. 3d DCA 1997).
10. Also, any attempt at cancellation by Defendant was improper in that no additional premium was owed. Under Section 627.0652, Florida Statutes, Defendant was required to provide a premium discount if Mr. Bell’s vehicle was equipped with ABS. It is uncontroverted that this was the case. There is no requirement in the Statute that an insured must provide written proof of ABS.
It is therefore,
ORDERED AND ADJUDGED as follows:
1. Plaintiff’s policy was in full force and effect of the date of the accident.
2. Pursuant to the agreement of the parties, the court reserves jurisdiction over the issues of damages, attorney’s fees and costs for future determination by the Court.
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