The appellate court reversed summary judgment for an insurer when the insurer couldn’t prove it met statutory conditions for notifying the insured about cancellation of his policy.  The court determined that, because the insurer knew its evidence did not support summary judgment in its favor, attorneys fees under Section 57.105, Fla. Stat. for the insured were an appropriate sanction.

In Magee v. American Southern Home Ins. Co., a Florida Corporation, issued June 2, 2008,
the First District Court of Appeal reversed summary judgment entered for a Florida insurance company. 

In Magee, the insured filed a complaint against his insurance company, alleging breach of contract for its refusal to pay a claim made under the applicable policy.  The Florida insurer denied the insured’s claim, asserting it canceled the policy for nonpayment of premium with an effective cancellation date prior to the date of the accident.

The insurer asserted it had mailed premium notices and a cancellation notice, but the insured testified he never received any premium or cancellation notice at the appropriate address, and only received a cancellation notice by certified mail at a different address “way after” the accident occurred. Section 627.7281, Fla. Stat. requires at least 10 days notice of cancellation for nonpayment of premium prior to the cancellation effective date.

As its sole grounds for summary judgment, the Florida insurance company offered a portion of a certificate of mailing report; and (2) a certificate of bulk mailing.  In a footnote in its appellate Answer Brief, the insurance company admitted the certificates of mailing it offered were from a different day, and did not include the subject mailing.  Although it still sought affirmance of the summary judgment on appeal, the insurance company admitted it offered no proof that the insured’s cancellation documents were actually mailed.

The appellate court naturally reversed the summary judgment.  Wisely, counsel for the insured filed a motion for attorney’s fees under section 57.105, Fla. Stat.  The court noted that despite the stringent standard required to support summary judgment, and the Florida insurance company’s admission that the evidence it offered did not represent what it was purported to represent, the insurance company continued to assert on appeal that the judgment should be affirmed. The court held that clearly the insurer “knew or should have known its defense of the trial court’s order was not supported by the necessary material facts,” and it was the insurer’s “duty to timely confess error.”

This case reveals why it is important to verify the insurance company as strictly complied with notice requirements, and to seek all available recourse when the insurer advances a frivolous and unmerited position.