Edens v. South Carolina Farm Bureau Mutual Insurance

Harwell, Justice

(dissenting):

The evidence in the case at bar was ample to submit to the jury the issue of whether the insured received the cancellation notice. In ruling on a motion for a directed verdict, the judge views all the evidence and reasonable inferences from the evidence in the light most favorable to the party resisting the motion. Jones v. Broome, 277 S. C. 295, 286 S. E. (2d) 664 (1982).

Respondent’s agents testified at trial that on August 13, 1974 a cancellation notice and a refund check for the unearned premium were sent to appellant by its normal cancellation procedure. That procedure included entering appellant’s name and address in respondent’s mailing book, taking appellant’s cancellation notice and refund check to the post office, paying the postage, giving the envelope to the post office, and receiving a post office receipt for the envelope. Respondent’s mailing book contained appellant’s correct address.

Although appellant testified he never received the cancellation notice or check and respondent’s records reflect that the refund check has not cleared the bank, two mortgage holders on the premises received notices of cancellation. Agents of the Federal Land Bank and the National Bank of South Carolina testified that they received the cancellation notices.

The trial court adequately charged the law of this state to the jury. The trial court presented the issue as two equally weighted questions for the jury: (1) whether the insured mailed the notice properly addressed with postage prepaid, and (2) whether the insurer received the notice. The jury charge correctly stated the law as espoused in Glenn v. Western Union Telegraph Co., 84 S. C. 155, 163, 65 S. E. 1024, 1027 (1909). This Court stated in that decision:

Evidence that (it was) mailed, properly addressed with postage prepaid, raises a presumption that (it was) received by the addressees, but when receipt of (it) is denied, it raises as strong a presumption that (it was) never mailed, and it was for the jury to say whether they were or not. (Emphasis added.)

The jury in the case at bar found that appellant had received the cancellation notice. Moreover, our law does not require an insurer to prove the insured received a cancellation notice; it merely requires the insurer to prove it properly mailed the notice to the insured’s address. The policy in question provides that it may be cancelled by giving the insured a five days’ written notice. This court has held that where a cancellation clause provides that the insurer may cancel by mailing the notice to the insured’s address or where the clause contains substantially similar language, the mere mailing is sufficient to effect a cancellation. The actual receipt is not a condition precedent to cancellation. Moore v. Palmetto Bank, 238 S. C. 341, 120 S. E. (2d) 231 (1961).

Admittedly, respondent could have alleviated the problem by sending the notice by registered or certified mail. However, our legislature does not require fire insurers to use any particular medium for notifying insureds that their policies have been cancelled.¹ The policy of construing ambiguities in favor of the insured does not allow us to legislate.

Accordingly, I would affirm.

Littlejohn, J., concurs.

1 Our legislature has addressed cancellation of accident and health insurance (S. C. Code Ann.§ 38-35-110 (1976)) and automobile insurance (Code § 38-37-1450). In neither area does our legislature require the use of registered or certified mail. Written notice mailed to the insured’s last known address is sufficient.