Filed: Feb. 28, 2012
Latest Update: Feb. 22, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 11-14659 ELEVENTH CIRCUIT FEBRUARY 28, 2012 Non-Argument Calendar JOHN LEY _ CLERK D. C. Docket No. 3:10-cv-00289-TJC-JRK UZONWA J. UMERAH, an individual, Plaintiff-Appellant, versus JOHN HANCOCK LIFE INSURANCE COMPANY (USA), Defendant-Appellee. _ Appeal from the United States District Court for the Middle District of Florida _ (February 28, 2012) Before CARNES, WILSON and BLACK, Cir
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 11-14659 ELEVENTH CIRCUIT FEBRUARY 28, 2012 Non-Argument Calendar JOHN LEY _ CLERK D. C. Docket No. 3:10-cv-00289-TJC-JRK UZONWA J. UMERAH, an individual, Plaintiff-Appellant, versus JOHN HANCOCK LIFE INSURANCE COMPANY (USA), Defendant-Appellee. _ Appeal from the United States District Court for the Middle District of Florida _ (February 28, 2012) Before CARNES, WILSON and BLACK, Circ..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-14659 ELEVENTH CIRCUIT
FEBRUARY 28, 2012
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 3:10-cv-00289-TJC-JRK
UZONWA J. UMERAH, an individual,
Plaintiff-Appellant,
versus
JOHN HANCOCK LIFE INSURANCE COMPANY (USA),
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 28, 2012)
Before CARNES, WILSON and BLACK, Circuit Judges.
PER CURIAM:
Uzonwa J. Umerah appeals the district court’s entry of summary judgment
in favor of John Hancock Life Insurance Company (USA) (John Hancock) and
against Umerah on her claim for benefits arising out of her deceased husband’s
life insurance policy. On appeal, Umerah contends the district court erred by
concluding the language of the insurance policy was unambiguous, such that
actual receipt of the notice of termination was unnecessary. After careful review,
we affirm the district court.1
I. BACKGROUND
John Hancock issued a Flexible Premium Adjustable Life Insurance Policy
(Policy) to Umerah’s late husband, Gabriel Umerah (Mr. Umerah), effective
November 4, 2005. Mr. Umerah provided a Harpers Glen Court address, his
residence at the time, on his Policy application. In May 2006, the Umerahs moved
a few miles away, but retained ownership of the Harpers Glen Court property.
John Hancock was not notified of a change of address.
From November 2005 through August 2008, premium payments in the
amount of $1,283.50 were automatically withdrawn from Mr. Umerah’s checking
account on a monthly basis. On September 3, 2008, however, Mr. Umerah
1
We review the district court’s grant of summary judgment de novo. Hudgens v. Bell
Helicopters/Textron, 328 F.3d 1329, 1333 (11th Cir. 2003).
2
executed a document revoking John Hancock’s authorization for automatic
withdrawal of the premium payments. The Umerahs did not make any more
premium payments for the Policy.
On April 6, 2009, John Hancock’s records indicate it generated a
“Termination Warning Notice,” notifying Mr. Umerah that the premium payments
to date were insufficient to maintain coverage beyond April 4, 2009. The notice
stated a minimum payment of $2,922.97 was due by June 4, 2009, to keep the
Policy in force. A “Termination Warning Notice Reminder” dated May 4, 2009,
contained essentially the same information. John Hancock’s records also indicate
a “Lapse Termination Notice” was generated on June 15, 2009, indicating that as
of June 4, 2009, Mr. Umerah’s policy was terminated due to insufficient payments.
All three notices were addressed to Mr. Umerah’s “last known address” at Harpers
Glen Court. Although there is nothing in Mr. Umerah’s file indicating the notices
were returned as undeliverable, Umerah denies receiving these notices.2
Mr. Umerah died suddenly on September 30, 2009, and a statement of claim
for death benefits was subsequently filed under the Policy. In correspondence
dated November 11, 2009, John Hancock denied the claim due to nonpayment of
2
On appeal, Umerah does not argue John Hancock failed to mail the notices.
3
the premiums, which had resulted in termination of the Policy effective June 4,
2009.
II. DISCUSSION
On appeal, Umerah contends the district court erred in concluding the
provision “send a notice to your last known address” was unambiguous. Rather,
Umerah claims the language is ambiguous, such that actual receipt of the notice of
cancellation was necessary.
The insurer bears the burden of proving the insurance contract was
cancelled in accordance with the terms of the policy.3 Auvil v. Nationwide Mut.
Fire Ins. Co., 222 So. 2d 46, 48 n.1 (Fla. 3d DCA 1969). If a policy provides for
a written cancellation notice, “but does not specify the m[e]thod of giving the
written notice, and the notice is given by mail, the effective date of cancellation
generally is to be determined based on the date of receipt of the notice by the
insured.” Aetna Ins. Co. v. Settembrino,
324 So. 2d 113, 114 (Fla. 3d DCA 1975).
If, however, the policy states that mailing notice is sufficient, Florida courts deem
the notice “to be complete upon mailing, even if the insured does not actually
receive the notice.” Best Meridian Ins. Co. v. Tuaty,
752 So. 2d 733, 735 (Fla. 3d
DCA 2000).
3
The parties agree Florida law applies in this diversity action.
4
The Policy provided that 30 days prior to termination of coverage, John
Hancock would “send a notice to your last known address, specifying the amount
you must pay to bring the policy out of default.” This language is distinguishable
from the Florida cases requiring actual notice of cancellation when the insurance
companies merely state that they will “give” notice, but do not specify the means
by which they will provide the notice. See, e.g., Nunley v. Fla. Farm Bureau Mut.
Ins. Co., 494 So. 2d 306, 307 (Fla. 1st DCA 1986). Rather, this language is more
analogous to the Florida “mail” cases, where the destination—here, the “last
known address”—is specified. See Best
Meridian, 752 So. 2d at 735 (providing
that notices would be mailed to the “last known address as contained in [the
insurer’s] records”); see also Burgos v. Indep. Fire. Ins. Co.,
371 So. 2d 539, 541
(Fla. 3d DCA 1979) (noting “[t]he well established principle of law with regard to
the issue of cancellation is that proof of mailing a notice of cancellation to a
named insured at the address stated in the policy is sufficient compliance with the
policy provision requiring notice to the insured”). Here, John Hancock complied
with the Policy by “send[ing] a notice to [the] last known address,” language that
shifted the risk of delivery to the insured. Under the facts and circumstances of
this case, the district court did not err in concluding that the Policy’s termination
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provision was unambiguous, and that John Hancock complied with the terms of
the policy, resulting in termination of the Policy before the insured’s death.
AFFIRMED.
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