Tuesday, November 17, 2015

Appellate Division holds that lienholder gets free insurance

Source One was a lienholder on a vehicle owned by Eric Santos.  On January 28, 2013, Progressive Insurance issued a "verification of insurance," or binder, that was provided to Source One. 

Santos's first premium payment bounced.  On February 8, 2013.  Source One received a notice of rescission from Progressive.  The notice was dated February 1, 2013 and was purportedly effective on January 28, 2013.

On March 3, 2013, the vehicle was towed as a result of a loss and Source One received possession of the vehicle.  Progressive refused to pay the claim filed by Source One on the ground that the policy had been rescinded. 

In Source One Financial Corp. v. Progressive Direct Ins. Co., 2015 WL 6739184 (Mass. App. Div.), the Massachusetts Appellate Division held that Progressive did not follow the cancellation procedure required by Mass. Gen. Laws ch. 175 § 113(A)(2).  Under the statute, "no cancellation of the policy . . . shall be valid unless written notice thereof is given by the party proposing cancellation . . . at least twenty days in each case prior to the effective date thereof."  The statute does not provide for rescission.

The court held that failure to comply with the requirements for cancellation means that the parties are in the same position as if no notice were ever sent.

The court rejected Progressive's argument that the insurance policy was a nullity due to failure of consideration.  "The promise to purchase the policy made by Santos at the time the binder was issued" satisfied the consideration requirement.  "The failure of consideration is not available to Progressive to avoid this policy.  The failure of performance, that is, Santos's failure to pay the promised premium, is different even under contract law than utter lack of consideration." 

The court held that the policy could not be rescinded because there was no fraud, accident, mistake, or gross inequity. 

I understand this case in principle.  By retroactively cancelling (or "rescinding") the insurance, Progressive failed to comply with the statutory requirement of giving twenty days notice.  Therefore, the insurance was never cancelled.

But what if Progressive had complied with the statutory requirements, and the accident had happened within the twenty day notice period?  A policy that was never paid for would nevertheless provide coverage. 

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