Blanchet v. Assurance Company
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 40
Docket:	Yor-00-343	
Submitted
on briefs:	December 13, 2000	
Decided:	February 26, 2001

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER,  and CALKINS, JJ.

DORI BLANCHET

v.

ASSURANCE COMPANY OF AMERICA

CLIFFORD, J.

	[¶1]  Dori Blanchet appeals from a summary judgment entered in the
Superior Court (York County, Fritzsche, J.) in favor of Assurance Company of
America (Assurance), and denying her motion for a partial summary
judgment.  We agree with Blanchet that there is a genuine issue of material
fact as to whether Assurance complied with the notice provisions of
24-A M.R.S.A. § 2915 when it canceled the automobile policy under which
Blanchet seeks coverage, and that a summary judgment was entered
inappropriately.  Accordingly, we vacate the judgment.
	[¶2]  Aaskov Insurance Agency, a local agent for Assurance, issued
Richard Blanchet an automobile policy from Assurance that covered Richard
and Dori, his then wife, for the operation of each of their motor vehicles
from March 1995 through September 1995.  Dori requested and received
her own individual policy for the period of June 1995 through December 6,
1995, and removed herself from Richard's policy.  In September of 1995,
Assurance again amended Richard's policy at Dori's request to add Dori and
canceled Dori's individual policy.  
	[¶3]  The Blanchets lived in Maine but used a post office box in New
Hampshire as a mailing address.  Because Assurance did not sell policies for
non-Maine addresses, Aaskov substituted its own Limington, Maine address
for that of Richard's New Hampshire address, and Aaskov's Limington
address was entered in the Assurance computer system as the mailing
address for Richard.  Aaskov's practice was to forward to Richard at his New
Hampshire address any mailings for him sent by Assurance to Aaskov's
address.  In March of 1995, Assurance sent to Richard, at Aaskov's
Limington address, a settlement check for windshield repair, and the check
was cashed by Richard before the end of March.  Richard also signed an
insurance release form for the repair of his vehicle that identified the
Limington address as his address.  The Blanchets, however, deny ever
receiving mail at Aaskov's Limington address, and deny that they consented
to having Aaskov's address serve as Richard's mailing address for purposes
of insurance coverage.
	[¶4]  Richard was issued a renewal notice for coverage effective on
September 21, 1995.  On October 11, 1995, Assurance mailed to Richard at
Aaskov's Limington address, by certified letter, a notification of cancellation
of Richard's policy, effective October 27, 1995, for nonpayment of the
premium.  In accordance with the notice, Assurance canceled the policy on
October 27, 1995, for nonpayment.  Richard denies receiving the notice,
and neither Assurance nor Aaskov has produced a certified receipt
indicating that Richard received the notice of cancellation.
	[¶5]  Dori subsequently was involved in an accident while driving her
car and brought a complaint against Assurance seeking recovery under
Richard's policy for damages pursuant to the uninsured motorist coverage of
the policy.  Assurance brought a separate declaratory judgment action
against Dori and Richard seeking a declaration that the policy Dori relies on
was canceled on October 27, 1995, pursuant to 24-A M.R.S.A. § 2915, and
that Assurance has no liability.  The two cases were consolidated.  The
Superior Court denied Dori's motion for a partial summary judgment,
entered a summary judgment in favor of Assurance, and subsequently denied
Dori's motion to reconsider.  This appeal followed.
	[¶6]  We review a grant of summary judgment for errors of law, and
examine the record independently to determine if a genuine issue of
material fact exists.  County Forest Prod., Inc. v. Green Mountain Agency,
Inc., 2000 ME 161, ¶ 32, 758 A.2d 59, 67.  An issue is genuine if there is
sufficient evidence to show a dispute about the facts that would "require a
choice between 'the parties' differing versions of the truth . . . ."  Prescott v.
State Tax Assessor, 1998 ME 250, ¶ 5, 721 A.2d 169, 171-72 (citation
omitted).  If the record reveals a material fact in dispute, a summary
judgment is inappropriate.  Burke v. Port Resort Realty Corp., 1998 ME 193,
¶ 8, 714 A.2d 837, 840.	
	[¶7]  The issue presented in this case is whether Assurance properly
canceled the policy pursuant to Maine law.  The Automobile Insurance
Cancellation Control Act governs the cancellation of insurance policies. 
24-A M.R.S.A. §§ 2911 to 2921 (2000).  An insurer may cancel a policy for
the nonpayment of a premium.  24-A M.R.S.A. § 2914(1) (2000).  Such a
notice of cancellation is not effective, however, unless the notice is actually
received by the named insured at least ten days prior to the effective date of
cancellation.  State Farm Mut. Auto. Ins. Co. v. Libby, 655 A.2d 880, 882
(Me. 1995).  A notice sent by certified mail to "the insured's last known
address [is] conclusive proof of receipt of the notice on the [fifth] calendar
day after [the] mailing."{1}  24-A M.R.S.A. § 2915 (2000).  When a statute
provides a mandatory method for canceling an insurance policy "that has
been certified under the financial responsibility law, and an insurer fails to
comply with the statutory method of cancellation, the insurer is precluded
from asserting that the policy has been cancelled."  Gov't Employees Ins. Co.
v. Concord Gen. Mut. Ins. Co., 458 A.2d 1205, 1209 (Me. 1983). 
	[¶8]  Richard denies receiving any notice of cancellation of the
automobile policy, and there is no evidence conclusively demonstrating that
he did receive actual notice.  Accordingly, a genuine issue of material fact is
generated precluding the entry of a summary judgment in favor of Assurance
on the issue of actual notice to Richard.  24-A M.R.S.A. § 2915 (2000).
	[¶9]  In support of the entry of a summary judgment in its favor,
Assurance relies on the "conclusive proof of receipt" provision in the
statute, asserting that the notice of cancellation was mailed to Richard at his
last known address.  Assurance has a certificate of mailing for the notice to
Richard at what Assurance's records show to be Richard's mailing address. 
That address is the address of the Aaskov Agency in Limington.  Although
the evidence suggests that the standard procedure followed by Aaskov when
Assurance sent mail to Richard at Aaskov's Limington address was to place
that mail in a new envelope and forward it to Richard at his New Hampshire
mailing address, there is no documented proof in the record that Aaskov
followed that procedure in this case.  Moreover, in view of Richard's denial
that he received such a notice, for Assurance to be entitled to a summary
judgment, Aaskov's Limington address would have to be Richard's last
known address for the purposes of 24-A M.R.S.A. § 2915.
	[¶10]  It is not disputed that for all other purposes Richard's mailing
address was in New Hampshire.  The New Hampshire address was the
address used by Aaskov when it forwarded Richard's mail from Assurance. 
While evidence exists to suggest that Richard was aware that Assurance was
using the address of Aaskov in Limington for Richard's mail, Richard and
Dori deny granting Aaskov the right to substitute its address for their New
Hampshire mailing address.
	[¶11]  Assurance denies knowledge of Richard's New Hampshire
mailing address, but Aaskov, Assurance's agent, acknowledges its awareness
that Richard's mailing address was in New Hampshire.  An insurance agent's
knowledge is binding on the insurance company.{2}  24-A M.R.S.A.
§ 2422(1) & (2) (2000); Sinclair v. Home Indem. Co., 193 A.2d 177, 179
(Me. 1963) (acknowledging that agent stands in place of company).  When
the name of the agent and the insurer is on the policy, the agent "shall be
regarded as in the place of the insurer in all respects."  County Forest Prod.,
Inc., 2000 ME 161, ¶ 24, 758 A.2d at 65 (reaffirming insurer charged with
knowledge of agent).  The purpose of the statute placing agents in the shoes
of the insurance company is to protect insureds and to allow them to safely
depend on agreements with an agent as fully and completely as one made
with the company itself.  Id., ¶ 23, 758 A.2d at 65; Sinclair, 193 A.2d at
179.  
	[¶12]  Here, Assurance's name is on the policy.  Aaskov was aware of
Richard's New Hampshire mailing address and knew that Assurance was
using Aaskov's address as Richard's address.  Aaskov forwarded Richard's
mail to his New Hampshire address.  Because Aaskov had knowledge of
Richard's mailing address, and because Aaskov was acting as Assurance's
agent, Assurance is charged with the knowledge of Richard's address in
New Hampshire.  See 24-A M.R.S.A. § 2422 (2000); Utica Mut. Ins. Co. v. St.
Paul Fire & Marine Ins. Co., 519 A.2d 185, 186 (Me. 1986). 
	[¶13]  There remain factual disputes about whether Richard actually
received a notice of cancellation, and whether the conclusive proof of
receipt provision set out in 24-A M.R.S.A. § 2915 precludes coverage under
Assurance's policy in view of Richard's New Hampshire mailing address, and
Aaskov's knowledge of that address.  The uncertainty of whether Assurance
had permission to use the Limington address as Richard's last known
address, and whether the notice of cancellation was sent to Richard's last
known address within the meaning of 24-A M.R.S.A. § 2915, are questions
for the factfinder.
	The entry is:
Judgment vacated.  Remanded to the Superior
Court for further proceedings consistent with
this opinion.
 Attorneys for plaintiff:

Stephen Kottler, Esq.
Michael J. Welch, Esq.
Hardy Wolf & Downing, P.A.
P O Box 3065
Portland, ME 04243-3065

Attorneys for defendant:

Kevin G. Libby, Esq.
Cornelia Fuchs Fisher, Esq.
Monaghan, Leahy, Hochadel & Libby, LLP
P O Box 7046
Portland, ME 04112-7046

FOOTNOTES******************************** {1} . 24-A M.R.S.A. § 2915 provides in pertinent part: No notice of cancellation of a policy shall be effective unless received by the named insured at least 20 days prior to the effective date of cancellation, or, when the cancellation is for nonpayment of premium, at least 10 days prior to the effective date of cancellation. . . . A postal service certificate of mailing to the named insured at the insured's last known address shall be conclusive proof of receipt on the 5th calendar day after mailing. 24-A M.R.S.A. § 2915 (2000). {2} . The Maine Insurance Code provides: 1. An agent authorized by an insurer, if the name of such agent is borne on the policy, is the insurer's agent in all matters of insurance. Any notice required to be given by the insured to the insurer or any of its officers may be given in writing to such agent. 2. The authorized agent of an insurer shall be regarded as in the place of the insurer in all respects regarding any insurance effected by him. The insurer is bound by his knowledge of the risk and all matters connected therewith. Omissions and misdescriptions known to the agent shall be regarded as known to the insurer and waived by it as if noted in the policy. 24-A M.R.S.A. § 2422 (2000).