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Life Investors Ins. Co. v. Johnson

District Court of Appeal of Florida, Fourth District.

September 15, 1982.

No. 81-1126.

Opinion

 [*33]  DOWNEY, Judge.

Appellee Eartha L. Johnson purchased an automobile from Fred Coyne Chevrolet Company, Inc. In conjunction with the car sale, Johnson also purchased a credit disability insurance policy issued by appellant, Life Investors Insurance Company of America. The policy provided that if the insured were totally disabled and under the care of a doctor for more than 14 days the company would pay the insured creditor a daily benefit for the period of disability and medical treatment. Written notice of the claim was required to be given the company at its home office "or to any authorized agent" within 30 days of the occurrence or as "soon thereafter as… reasonably possible" and proof of loss within 90 days thereafter. Claims were to be paid monthly subject to written proof of loss.

Johnson received a disabling injury at work. The company was eventually notified but, Johnson claims, did not pay [**2]  according to its contract and as a result her car was repossessed. Johnson sued appellant for damages for breach of the contract. The trial judge directed a verdict on liability at the close of the defendant's case. The jury returned a verdict in the amount of $ 3,500.

The two points presented on appeal involve the direction of the verdict for Johnson and the inclusion of various improper elements of damage in the award.

Without detailing all of the evidence regarding notice to the company, suffice to say that reasonable men could differ on whether Johnson complied with the notice requirements of the policy. She was injured on March 7 but the company did not receive the notice at its home office until June 22. The reason for the delay was that Johnson obtained a claim form from Fred Coyne Chevrolet and mailed it to an address in West Palm Beach, Florida, furnished to her by Coyne Chevrolet. When payment was not forthcoming Johnson called the West Palm Beach office and was advised that the form should have been mailed to the company's home office. Apparently, the West Palm Beach office had sent the form on to appellant. Thereafter, correspondence between Johnson and appellant [**3]  became confused because Johnson had an automobile accident in July and the proof of loss form sent to the company began to show conflicting disability periods. Johnson finally stopped sending proofs of loss, appellant stopped paying anything and Johnson's car was repossessed. It appears to us that there were issues for the jury relative to compliance with the notice requirements of the policy and, if notice was late, whether the company was prejudiced by the late notice. Also, a fact issue exists regarding the agency of Fred Coyne Chevrolet in furnishing claim forms for purposes of binding appellant. Therefore, it was reversible error to direct a verdict for Johnson on the question of liability.

The trial court instructed the jury to consider as damages the loss of value and use of the automobile, transportation expenses incidental to the loss of use of her car and long distance telephone calls. The trial court did not instruct the jury to consider the amount due on the policy as appellant contends.]

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422 So. 2d 32 *; 1982 Fla. App. LEXIS 22132 **

LIFE INVESTORS INSURANCE COMPANY OF AMERICA, Appellant, v. Eartha L. JOHNSON, Appellee.

CORE TERMS

disability, notice, repossessed, telephone, distance, monthly, mailed

Civil Procedure, Jury Trials, Jury Instructions, General Overview, Contracts Law, Breach, Remedies