Opinion
Nos. 74-27, 74-28.
October 29, 1974. Rehearing Denied December 9, 1974.
Appeal from the Circuit Court, Dade County, Jack M. Turner, J.
Richard Karl Goethel, Coral Gables, for appellant.
Stephens, Magill, Thornton Sevier and Stephen J. Keating, Miami, John L. Hartnett and David C. Arnold, Coral Gables, for appellees.
Before HENDRY and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
Appellant, plaintiff in the trial court, appeals an adverse summary final judgment in her action against Atlantic Mutual Fire Insurance Company, Hartnett Insurance Agency and Langley Insurance Agency to recover on an insurance claim growing out of a fire at her Golden Beach, Florida, home.
The policy sold to appellant by Hartnett and Langley, and issued by Atlantic Mutual, contained two pertinent clauses: ". . . this company shall not be liable for loss occurring . . . (b) while a described building, whether intended for occupancy by owner or tenant, is vacant or unoccupied beyond a period of sixty consecutive days . . .;" and ". . . This policy may be cancelled at any time by the Company by giving to the insured a five days' written notice of cancellation with or without tender of the excess of paid premium above the pro-rata premium for the expired time, which excess, if not tendered, shall be refunded on demand . . ."
From review of the record, it is uncontroverted that the policy had been cancelled before the loss took place; that Atlantic and Langley each notified appellant of the cancellation in writing and that Atlantic had issued a credit memorandum and check to appellant as and for a return of the premium of the policy.
Appellant denies receiving the notice of cancellation which was mailed to her Golden Beach address, but she testified on deposition that she had been residing in New Jersey for a period of more than three months continously, during the time period material hereto, without arranging to have her mail forwarded to her, and without notifying any of the defendants of her New Jersey address.
We conclude, therefore, that there was no material issue of fact that proper notice was given to appellant and that because the premises had been unoccupied for a period of more than sixty consecutive days prior to the date the loss occurred, the policy, by its own terms, was not in force.
The appellees have successfully met their burden of conclusively proving the nonexistence of a genuine issue of material fact, and have overcome all reasonable inferences which may be drawn in favor of the non-moving party, viz., the appellant.
For the reasons above stated, the judgment, therefore, is affirmed.
Affirmed.