BANKERS INSURANCE COMPANY, A CORPORATION, APPELLANT,
v.
GENERAL NO-FAULT INSURANCE, INC., D/B/A STATE NO-FAULT INSURANCE AGENCY; MARITZA ROJAS; ADRIANO ROJAS; AND UNITED PREMIUM BUDGET PLAN, INC., A DISSOLVED CORPORATION, APPELLEES
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Bankers Insurance Company appealed the grant of summary judgment against it on claims for rescission and cancellation of an insurance policy, and against General No-Fault Insurance's counterclaim for common law indemnity. The court reversed the indemnity claim as lacking merit but affirmed the summary judgment against Bankers for failing to comply with statutory and common law requirements for rescission and cancellation.
The court reversed the grant of summary judgment on General No-Fault's common law indemnity claim because General No-Fault was not vicariously liable for any misconduct. The court affirmed summary judgment against Bankers on rescission because Bankers failed to tender all premiums paid during both affected policy periods, and on cancellation because Bankers failed to comply with statutory obligations by returning unearned premiums to the insureds rather than solely to the premium finance company.
[1] Common law indemnity requires a showing that the party seeking indemnity was not actively negligent but only vicariously, derivatively, or technically liable, and that th…
[2] An insurer seeking to rescind a voidable policy must give notice of rescission and return or tender all premiums paid within a reasonable time after discovery of the grou…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“common law indemnity requires showing that party was not actively negligent but only vicariously, derivatively or technically liable and that duty in question was actually duty of another”
Establishes the requirements for a valid common law indemnity claim, which General No-Fault failed to satisfy
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBankers Insurance Company issued an insurance policy to the Rojas insureds. The policy was renewed, and Bankers sought to rescind and cancel the polic…
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FARMER, J.
We reverse the grant of summary judgment on General No-Fault Insurance’s claim against Bankers Insurance Company for common law indemnity. There is nothing in the record to support a conclusion that General No-Fault could be held vicariously liable for any misconduct of its principal, Bankers Insurance. See Robert L. Turchin Inc. v. Gelfand Roofing Inc., 450 So. 2d 554 (Fla. 3d DCA 1984) (common law indemnity requires showing that party was not actively negligent but only vicariously, derivatively or technically liable and that duty in question was actually duty of another). Accordingly General No-Fault’s claim for common law indemnity is wholly without merit.
We affirm on all other issues. The trial court’s grant of summary judgment in favor of the insureds on Bankers’ claims for rescission and cancellation is fully supported by the record. Bankers has failed to afford the necessary condition precedent under both theories. As to rescission, it has failed to make — and in fact disclaims any obligation to do so — a tender of all premiums paid by the insureds. See Leonardo v. State Farm Fire & Cas. Co., 675 So. 2d 176, 179 (Fla. 4th DCA 1996) (Gross, J., concurring) (‘Where an insurer seeks to rescind a voidable policy, it must both give notice of rescission and return or tender all premiums paid [e.s.] within a reasonable time after discovery of the grounds for avoiding the policy.”). The basis for the rescission (as well as the cancellation) is the alleged misrepresentation in the application, which necessarily affects both the initial policy period as well as the renewal. Yet Bankers has offered to return the earned premium for only the renewal year of the policy, rather than for both policy periods the insurance was ostensibly in effect as a result of the alleged misrepresentation.
As to cancellation, Bankers failed to comply with its statutory obligations to effect a cancellation of its policy. See § 627.7282(l)(c), Fla. Stat. (2000). Bankers failed to return the unearned premium to its insured when it sent the refund instead solely to the premium finance company. The fact that the insureds had assigned the refund to the premium finance company simply means that Bankers could have made the refund check payable jointly to the insureds and the premium finance company, but it was still obligated to return the unearned premiums to its insureds.
GUNTHER and SHAHOOD, JJ., concur.
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Amstar Ins. Co. v. Cadet, 862 So. 2d 736 (Fla. 5th DCA 2003)…remium to Gold Coast pursuant to the premium finance agreement whereby Gold Coast was assigned the right to receive refunded premiums from any insurer covering Cadet. Cadet's reliance on Bankers Insurance Company v. General No-Fault Insurance, Inc., 814 So. 2d 1119 (Fla. 4th DCA), review denied, 835 So. 2d 265 (Fla.2002), is misplaced. Bankers held that pursuant to section 627.7282(1)(c), Florida Statutes (2000), the refund of premiums must be made to the insured rather than the premium finance company. Howeve…
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U.S. Sec. Ins. Co. v. Figueroa, 917 So. 2d 901 (Fla. 3d DCA 2005)…alleging that the insurance policy had not been effectively cancelled. At trial, the jury returned its verdict in favor of Figueroa and awarded him the insurance benefits. The trial court, relying on Bankers Ins. Co. v. General No-Fault Ins., Inc., 814 So. 2d 1119 (Fla. 4th DCA 2002), determined that the cancellation was ineffective because U.S. Security returned the unearned premium to Appco rather than to Figueroa. Understandably, the trial court’s reliance on Bankers made perfect sense as Bankers is the on…
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Bankers Ins. Co. v. Maritza Rojas, 855 So. 2d 1252 (Fla. 4th DCA 2003)…FARMER, C.J. This is an epilogue to our decision in Bankers Ins. Co. v. General No-Fault Ins., Inc., 814 So. 2d 1119 (Fla. 4th DCA 2002), rev. denied, 835 So. 2d 265 (Fla.2002). The subject of today’s appeal is attorneys fees. In light of our disposition of the appeal on the merits, we hereby reverse the award of fees to General No-Fault from Bankers. As to the aw…
Authorities Cited
- Carlo Leonardo v. State Farm Fire & Cas. Co., 675 So. 2d 176 (Fla. 4th DCA 1996)
- Robert L. Turchin, Inc. v. Gelfand Roofing, Inc., 450 So. 2d 554 (Fla. 3d DCA 1984)