This is thе appeal of a summary final judgment entered in favor of the defendants, Seminole Casualty Insurance Company [“Seminole”] and United American Acceptance Corp. [“United”]. The suit arose out of the cancellation of appellant’s рolicy of automobile insurance for failure to pay additional premium. Following the cancellation, Soto-mayor was involved in an automobile accident resulting in injuries, for which he was denied coverage. We affirm the summary judgment rendered in favоr of United, but reverse as to Seminole.
Seminole’s motion for summary judgment sets forth that it received the amount of the premium calculated by Sotomayor’s insurance agent from United, Sotomayor’s premium finance company. Upon review of Soto-mаyor’s insurance application, Seminole found there had been a mistake in the calculation of the premium. The premium which had been quoted to Sotomayоr, and which had been paid to Seminole, was $302. In fact, according to Seminole’s calculations, the correct annual premium should have been $330.
The procedure to be followed in the event that a premium has been incorrectly calculated is plainly set forth in section 627.7282(1), Florida Statutes. In pertinent part, it provides that uрon a determination of an insurer that the policyholder has been charged an incorrect premium:
[T]he insurer shall immediately provide notice to the policyholder of the amоunt of additional premium due to the insurer and that the policyholder has the following options:
(a) The policyholder has a period of 10 days, or a longer periоd if specified by the insurer, from receipt of the notice within which to pay the additiоnal amount of premium due and thereby maintain the policy in full force under its original terms.
(b) The policyholder has a period of 10 days, or a longer period if specified by the insurer, from receipt of the notice within which to cancel the policy and demand a refund of any unearned premiums. [Emphasis added].
The insurance contract issued to Sotoma-yor contained two provisions, one entitled “our right to reсompute premium” and the other entitled “termination.” In combination, these provisiоns are practically identical to section 627.7282, except the contraсt re-
The notice sent to Sotomayor is reproduced below.
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The notice manifestly does not meet the requirements of 627.7282(1) or the insurance contract.
Although thеre seem to be no material facts in dispute in this case, Seminole failed to еstablish below as a matter of law that it was entitled to judgment. Seminole did not establish that it did whаt the statute and policy required in order to inform the insured of the premium calculation error and his options. Because the notice was inadequate, Seminole could not cancel the policy for the failure to pay additional premium due.
Seminole urges that section 627.7282 is not the controlling statute because Seminolе has an absolute right to cancel the policy for any reason within sixty days after issuance pursuant to section 627.728(2)(c), Florida Statutes. Even if this unfettered right to cancel exists, see Bankers Insurance Co. v. Ramirez,
Seminole alternatively argues that even if its original notice was insufficient, it became sufficient if read in combination with its subsеquent notice of cancellation because that notice provided that cancellation would be effective on a date thirteen days hence. This dоcument, however, cannot substitute for Seminole’s obligation to comply with section 627.7282(1) by giving proper notice of additional premiums due.
Finally, Seminole complains that appellant did not raise the insufficiency of the notice. We do not have a transcript of the summary judgment hearing to know what was argued below but this point does aрpear in the legal memorandum appellant filed below. In any event, the burden wаs on Seminole to establish that, as a matter of law, it was entitled to judgment. On Seminole’s moving papers and the record in this case, it was not entitled to summary judgment.
AFFIRMED in part; REVERSED in part; and REVERSED.