John W. Meeks v. State Farm Mutual Automobile Insurance Company, 460 F.2d 776

John W. Meeks v. State Farm Mutual Automobile Insurance Company

460 F.2d 776

5th Cir.

1972

Check Treatment

*1 Plainly, was no abuse of benefits. there Secretary’s decision

discretion and supported by evidence. substantial we find that

For these reasons found-

district court was well currently exists. ed under law as it affirmed.

Said will be MEEKS, Plaintiff-Appellee, W.

John MUTUAL AUTOMOBILE

STATE FARM COMPANY, Defendant- ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍INSURANCE Appellant. 71-2137,

Nos. 71-2293. Appeals,

United States Court Fifth Circuit.

May 22, 1972.

JONES, Judge: Circuit Edris Diane Moss owned and was driving an automobile which was in a appellee, collision with another car. The Meeks, injured John W. acci- dent. Meeks recovered a Mrs. Moss. This being unpaid, brought an action appellant, State Farm Mu- tual Company, Automobile Insurance claiming it was the insurer of Mrs. Moss’ contended policy that it had issued to Mrs. Moss force at the time of the injury to Meeks. At a trial a ver- dict was returned for Meeks. The dis- persuaded trict court was that an erro- given neous instruction had been granted Upon a new trial. the second trial Meeks obtained a verdict and $24,608.33 the verdiсt for was entered. Meeks then submitted a petition fees with affida- vits as to the value the services ren- dered. The court entered the amount of appealed State Farm has from each of judgments. appeals have been consolidated.

It was and is the contention of State Farm that it had issued to Mrs. Moss had been cancelled and had not been reinstated at the time of the accident. It was and is the contention Meeks that the had not been cancelled, that if it had been cancelled it reinstated, had been and that if it had been cancelled and had not been rein- stated, estopped Farm was Randall, Atkins, Carey A. Edward J. that the was in force at the time Miami, Fla., defendant-appellant; of the accident. Walton, Lantaff, Schroeder, Carson & urges that the evi Miami, Fla., Wahl, of counsel. dence support insufficient Dixon, Bradford, McKay Williams, & finding, implicit verdict, Kimbrell, Frates, Hamann, Warren D. policy ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍was in effect and afforded cover Floyd, Steward, Larry Pearson & S. age at the time the accident. There Stewart, Richman, Miami, Gerald F. was evidence1 from which the Fla., plaintiff-appellee. could have found: JONES, (a) Before AINSWORTH Mrs. Moss and her husband had GODBOLD, Judges. Circuit cаrried automobile questions testimony credibility Conflicts resolved favor of the verdict. upon receipt They state this some time. Farm for with State delinquents. of the amount due.” were chronic policies sent notices (c) On payments would be cancelled Florida, Miami, a check advised when due. Haven, Florida, Farm at Winter policies be reinstated envelope and fur in an addressed pаy- upon receipt past due nished it. *3 envelopes ments. addressed It furnished by Farm.2 remittance was received State making premium remittances. for January occurred collision judg was source the Meeks credited which Farm On occasions State ment Mrs. Moss. pe- accruals for amount of and due date riod between (d) included State Farm payment made. late the date the depоsit check Mrs. Moss in its bank February 7, no such credit made letter On other occasions its 1966. April 1966, 15, to Mrs. it sent Moss given. a to her “refund” of the amount which 1965, January.3 (b) 7, Farm she had to it in On December poli- Moss that her a to Mrs. sent (e) Flori Mrs. Moss sent 21, cy on December cancelled be report da Insurance Commissioner your remit- saying, “Please forward by required of the accident the Florida delay, Responsibility rein- and we will Financial tance without Law4 on its 638, ing past premiums. 2. Mrs. testified that she mailed 18 Fla.Jur. January envelope Insurance 663. check on § in bears the check was mailed operator in an Each involved owner stamp “Miami, Fla. the cancellation accident purview conviction case within the or P M 14 Jan 1966”. State Farm chapter of this shall furnish identifying in its ticket” evidence “cash liability insur- of automobile еvidence ance, having on it the date remittance liability insurance, vehicle motor wrote thirty days surety within from or bond April a dated Mrs. Moss letter mailing of notice of acci- date by copy is shown a from its as in such form dent the commissioner file it. and introduced evidence may designate. Upon as he and manner letter State Farm denied cov- this receipt an automobile evidence that erage Meeks collision stated liability liability policy, motor vehicle among things, that, other “On surety policy, bond was effect or received to reinstate the we or accident convic- time policy.” decide We whether need case, shall for- tion the commissioner the letter creates an statement mail, postage by United States ward prepaid, only estoppel is an admission or surety insurer to the insurer or post- can We assume interest. mark copy as- and shall a of such information mailing evidence of the time a is bond sume that such or processed employees postal but surety or effect insurer unless any we not assume that it creates ir- do notify the commissioner insurer shall question presumption. The rebuttable twenty days otherwise within jury to the time the as mailing the insurer or of the notice to check reached State Farm. surety insurer; provided that if delinquent premium 3. The of a retention shall later ascertain commissioner right liability is a waiver of the to can- motor an automobile surety liability policy, or to reinstatement. bond cel a refuse or vehicle 661-662; provide 18 Fla..Tur. did not §§ Insurance in effect and 13 Fla.Law and Practice Insurance both the owner and 302; operator, Ins. Industrial Life & Health shall at time take such he Cofield, Co. Fla. 148 So. he is authorized action as otherwise mailing particularly applicable chapter. rule Proof do under this may here, long surety where, been be as there has a or insurer insurer making accept- any or continued custom of the commissioner em- giving report specific questions propound- col- form RS naming ed to the theo- as to each of Meeks’ lision liability The In- ries Such as her insurer. as (cid:127)Farm judge copy of the was too late conclusion of the surance Commissioner sent presided who, It made no who over the first R 21 form to State Farm. S trial, said, response by other- the order a new or denial “The in this verdict of the case em- wise.5 using phasizes more once the value special intеrrogatories.” The admoni- its brief has stat judge tion was unheeded who categorically ed its had been presided But, over second trial. cancelled been revived. and had not conclude, there was evidence sufficient accepted ipse a matter dixit pose question each of the both, law, or of there would fact then posed by Meeks, theories each of question have been predicated such theories was Stating position in different its *4 judgment principle. sound manner, perhaps Farm a State better based on State Farm’s insurance liabili- evi insufficient contends that there was ty, Appeal 71-2137, No. is affirmed. question of dence to submit the better, It would have been court entered district he particularly succeeded $19,000 attorneys’ since if Meeks to be fees undisputed the of Meeks’ under a the amount services counsel would recover says Florida statute.6 that Moss, Meeks the be retained if it had denied or in by naming ployee the his office deny liability. Although the tended to surety whom such insurer or insurer to precisely specified proof specifying mailing and was made Florida it was nevertheless mailing. statute time, place manner of and 43(a) under Rules Fed. admissible аnd 324.091(1). F.S.A. § and the Federal business Rules Civ.Proc. It 21 form was received 5. The S statute, 1732. Mar § records 28 U.S.C.A. office of Insurance Commissioner States, 1970, 422 cus v. United 5th Cir. May 7, The form the file 1966. DeGeorgia, 752; United States v. F.2d The custodian Commissioner. 889; F.2d 9th Cir. 420 McClanahan that a of his office testified records States, Cir., 1961, F. v. United 5th 292 copy ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍form was transmitted of each such McCormick, 630; Evidence, p. 2d 609, see twenty-four hours to the insurer within (3d 289; Wigmore, 5 Evidence § being received. State Farm chal- after lenges Ed.), p. There are two 1531. proof sending of the S as to the effect of Florida decisions 21 form to Farm from the office State deny liability failure of an insurer Florida Insurance Commissioner receiving R 21 notice. The earlier the S by response the lack of State compa holds that decision ny proof ground that asserted liable as a matter of law. Ameri testimony by the should have been made Illing v. Fire Insurance Co. can Mutual of a witness who mailed the form to State worth, Dist.Ct.App.1968, 213 So. Fla.2d relying Farm rather than indirect case it is held 2d In the more recent 747. upon the Commissioner’s evidence based company that the failure of an insurance testimony file and the members of respond an R 21 notice with a de S respect the Commissioner’s staff with presump сoverage raises a rebuttal nial of thereto. This evidence showed that tion Phoenix Insurance Co. copy form, S E 21 of which was in the Dist.Ct.App.1970, McQueen, v. Fla.1st file, May 7, had been received on The conflict between 240 So.2d 79. mailed to Farm not later than the State Appeals decisions these District Court testimony following day. showed that informed, not, so far as we has file contained no Commissioner’s Suрreme of Florida. resolved sponse from Farm. The lack of State Upon any response the rendition indicated by any deny coverage, the courts of this or decree not intend to did It 21 an insurer and in favor of not state file did contain S Farm’s beneficiary employees un- an insured or the named and one of its testified form executed it or contract when a form was received would der court, or, insurer, trial in the event but Farm had discarded entry pur- After the of 5th F.2d is excessive. Cir. the fee trial, judgment following pose punishment one the first but to en- courage pay applied insurers valid claims delay. lawyers put without undue The fee allowed who submitted affidavits Fidelity must then rendered. be reasonable. American values on the service Greyhound Casualty Company v. service Meeks’ $10,000. Others, counsel valued Corporation, supra. other addition to affidavits whose range matters, consider, Meeks, courts should in fix- had a between ing attorneys’ involved, fees, $10,250. $9,565.38 amount thought lawyer $4,000 ample results the suit and the care diligence Mutual lawyer Berkshire affidavit of exhibited. submitted an another Moffett, Insurance Co. 5th Cir. fixed the amount at After who Stuyvesant following In- F.2d And entry see Company Nar- York v. surance New concludеd first the district court delli, 5th 286 F.2d Cir. of one of issues submission award is requested amount of the district court’s to the by an instruction nearly eighty per requir- the amount of Meeks, cent of error counsel for minimizing recovery. request Meeks’ Without trial. Another new complexity issues, both of law the sec- made for fees after might fact, said think it well be of Meeks’ counsel ond Affidavits trial. that, involved, $9,660 amount $9,750 measured an additional said brought allowed is more than the traffic the fee in affidavits been earned. He gave lawyers opinions for should bear. other who *5 ranging $8,920 to additional fees looking at results $9,500. attorney said ob achieved Meeks’ counsel first $2,000 an for the second trial and overall tried serve that case twice. enough. figure $5,000 be of would apparent is the amount no be- district court made breakdown attorneys’ fees included serv award for The award first and second trial. tween at second trial was ices both trials. The $19,000 dis- of indicate that the required an because of the Meeks’ trict had shaded the claim court re which had erroneous instruction quested $10,000 to even thousands allowed not Meeks’ It would counsel. $9,000 trial and for the sec- for first improper counsel consider whether be to ond trial. comрensated by ad his client’s should be versary in which was for second trial not the occasion This is first matter be duced him. If this be a the rea of this consideration of Court’s some then there be reckoned should In the sonableness fees. thought question devoted to the legal liti usual abrasions each course of expense to State whether gant lawyer. require pays his own the second should be shared trial ment insurer shall that the unsuccessful factors would Meeks’ counsel? These pay the fee of successful bene reasonableness. seem be elements of ficiary in of a of its the nature penalty. Fidelity determining and Casual the amount American fees,, Greyhound Corporation, con- ty Company attorney’s are be affidavits attorney contracts, appeal or shall insured such fee

оf an in which the beneficiary prevails, appellate commenced court suit was be allowed sixty days expiration prior adjudge in- or shall decree proof duly with filed in insured or ben- claim was surer and favor eficiary fees com- a reasonable sum as or insurer. pensation or benefi- the insured’s compensation attorney awarded, ciary’s prosecuting (3) in the suit so Where attorney recovery shall be included or which the is had. fees arising rendered on claims or decree As to suits based annuity policies under life insurance or case. F.S.A. 627.0127. binding. Looking sidered but Lumber record entire considering Casualty men’s Mutual Co. v. Renuart- all elements that go Co., Bailey-Cheely Supply make-up Lumber & 5th into the reasonable fee, may Fees we conclude Cir. F.2d 556. services knowledge based the Court’s district court Meeks’ counsel should have ago experience. $9,500. an award Some while Appeal held: district court 71-2293 No. is reversed and the is reversed and cause court, appellate, either trial or entry remanded of a (of expert question an itself on the for the amount of findWe attorneys’ fees) may consider its reasonable fee for services of knowledge expеrience own con- attorneys $1,500 Meeks’ in this Court is cerning proper reasonable and fees for which will be entered. may judg- independent form an Appeal No. 71-2137 affirmed. ment either or with ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍without the aid Appeal No. 71-2293 reversed testimony of witnesses as to value. manded. Campbell Green, et al. v. 5th Cir. Judgment F.2d appeal. fee on quoted principle statement of AINSWORTH, Judge (dis- Circuit approved by this Court in a recent case senting) : where was said : This twice in case tried the Dis- courts, appellate as trial trict Court. On the first the ver- courts, experts plaintiff are themselves as to dict of the in favor of attorneys’ fees, (Judge the reasonableness of set aside the District Court may, justice, Atkins) interest fix and a new trial ordered because disagree- Judge counsel albeit in sub- the Trial felt he erred mitting

ment the еvidence views the issue whether of the trial court. B-M-G Investment State Farm’s had been cancelled Gordin, Inc., Co. v. nonpayment as December 1965 for Continental/Moss premiums. (R. 1000-1004.) 5th Cir. 437 F.2d 892. *6 Judge Responsibility requiring The full text of Atkins’ “Memo the Division Opinion respond days, randum and Order on Post Trial to carrier within 30 other coverage Motions” reads as follows: wise have deemed to jury jury The verdict of the in this case in effect. of bеen The was aware emphasizes again ques once the of us- three shown value these issues as the special interrogatories. they tion which submitted to tire Court plaintiff’s requesting thrust to be re-instructed. the carrier of his January 14, The critical was date upon debtor was based three conten- day 1966 on which the accident oc- (1) : tions a course of the conduct coverage curred. thе was not effec- permitting defendant insured its date, recovery possible tive on that pol Diane Edris Moss to reinstate her plaintiff in this the action unless icy (2) cancellation,1 after notice of re (3) issue under above defendant is es- husband, The insured Edward deny topped coverage. to Moss, policy who also held a the with (1) spurious. (2) Issues defendant, testified in effect The third was bona fide have could every premium payment on their been the foundation for an unassailable policies was late and several were de jury special Unfortunately, verdict. linquent. premium last, except No the interrogatories were not submitted to days which was made 24 cancel after impossible jury, making the it to de- lation of Mrs. Moss’ ever was termine the basis the verdict. paid in full. tention, satisfactory exрlana sure, my imprimatur without To be I on tion, premium by charges given submitted after all three issues to the proper cancellation, (3) to failure I also them instructed a second deny recovery receipt request. Shortly after of an SR time at their there- 21 Form after, from the Florida Financial the verdict was returned. 782 present the the the District Court which suit is based and as second by Judge pointed (Judge King) again out some same Atkins “was submitted the Judge days 45 it jury, Atkins hours to after was due

issue policy after Even was cancelled.” believed erroneous and sufficient was setting premium had verdict the insured’s check for warrant aside the received, plaintiff, as contended new trial. 14, January unlikely on most 1966 —a grant I would in this case and reverse event under the evidence herein —the in- of erroneous a new trial becаuse policy would not have been reinstated submission; because also struction and practice under the uniform the insur- strongly points so the evidence company ance until 12:01 a. m. policy can- was fact that State succeeding day, e., January 15, next i. 21, celled effective December 1966, my In after accident sued on. payment premium by delinquent company view defendant 15, check wаs not received until being upon unjustly required pay day accident one after day specious quality in 12 :01 A.M. ing follow- issue assumption genesis the accident. its Moss, charged (2), insured, I on inter was ei- issue Edris Diane alia, liad believe she at all times as follows: ther led to “Receipt policy reinstated and retention of an insur- or the was policy pre- premium ance viously reinstate date. the canсellation practice, cancelled, ac- the absence State Farm followed the superintendent, satisfactory explanation cording reason to its service Wayne retention, Vancil, payment constitutes a waiver when for such by past premium right it the insurer cov- was made after was erage.” due, reinstating policy 12 :01 at so, upon day following posting doing I relied m. Johnson a. Georgia, premium. v. Ins. Co. of 52 So.2d When Life (Fla.1951) Enfinger September on $68.40 Sep- Travelers (Fla.App. Order of United Commercial notice 28, cancelling America, 156 So.2d 38 tember 1963). these, payment 12:01 m. on October 11. The each of a. your prior re- also stated: “Please forward the retained was received delay, giving will and we rise to mittance without occurrence claim. Here the was received rеinstate ceipt Payment day accident out of which of the amount due.” judgment against plaintiff’s 14 and October Edris ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Deane $40.25 was received was reinstated as October Moss arose. legitimate was allowed for The third issue was a one. Credit days it out force. could have believed defend- three reciting payment, an in the amount of ant received SR last When was insured defend- on December аccident, day received, and failed of cancella- ant on the *7 so, coverage. tion, tills was a December As shown a verdict defend- mailed December basis for Exhibit ant. American Mutual Fire Insur- Defendant’s check Illingworth, (Fla.App. vs. amount of ance Co. 1968) Miami, of Jan- Florida “P.M.” 213 So.2d 747. uary 14, light Farm in Winter of the above erroneous sub- 1966 to State days jury, Haven, This was some 45 mission to instruction Florida. days motion new trial after the after it was and 24 the defendant’s hereby granted. bal- was not be and was cancelled. The must although is denied. reinstated ance of the motion Miami, placement tained, pending possible DONE AND ORDERED day July, subsidiary in a of the defend- Florida this 17th April However, (Signed) ant, C. ATKINS constru- CLYDE until every provision, DIS- and action UNITED STATES custom issue, JUDGE TRICT the defendant on reinstatement effective date of damages under occurred

effect when the accident

any evi- reasonable construction

dence.

I, therefore, dissent. Plaintiff-Appellant, McCORMICK,

John R. Secretary RICHARDSON,

Elliot L. Welfare, Health, Education and America, States of Defendants- United Appellees.

No. 71-1009. Appeals, States

United

Tenth Circuit.

April 14, 1972.

Rehearing Denied June