Foremost Insurance Co. v. Peoples Trust of New Jersey 344 So. 2d 1289

PER CURIAM.

This appeal questions the correctness of a summary final judgment rendered in favor of appellee in an action for breach of an aircraft insurance contract.

The sole question presented in this appeal is whether the trial court erred in granting appellee’s motion for summary judgment and ruling as a matter of law that appellant insurance company’s notice of cancellation was ineffectual to cancel the insured risk.

From our examination of the record on appeal, we are convinced that it conclusively establishes the absence of any genuine triable issue of material fact and that appellee was entitled to judgment as a matter of law. Therefore the judgment appealed is affirmed. Graves v. Iowa Mutual Insurance Company, 132 So.2d 393 (Fla.1961).

Affirmed.

PEARSON, Judge

(dissenting).

I agree that the language of Graves v. Iowa Mutual Insurance Company, 132 So.2d 393 (Fla.1961), appears to be controlling, however, the factual situation there, in one important respect, is different from the present case.

In Graves, the insured was depending upon continued coverage and, therefore, the notice of cancellation was necessary in order to enable the insured the opportunity to obtain insurance elsewhere before being subjected to risk without protection. In the present case, however, such necessity did not arise. The loss that occurred was well in excess of thirty days after the notice that the insurance would be terminated, and the termination itself was due entirely to the insured’s own delinquency in premiums. Therefore, we are presented here with a case distinguishable from the Graves case, where the insured did nothing to contribute to the termination of coverage.

Accordingly, I would hold that the Graves case is not controlling here.