Loiselle v. Barsalow
Annotate this Case
Loiselle v. Barsalow (2005-149); 180 Vt. 531; 904 A.2d 1168
2006 VT 61
[Filed 26-Jun-2006]
ENTRY ORDER
2006 VT 61
SUPREME COURT DOCKET NO. 2005-149
NOVEMBER TERM, 2005
Tamie Loiselle } APPEALED FROM:
}
} Chittenden Superior Court
v. }
}
Charles Barsalow dba Barsalow } DOCKET NO. S0730-01 CnC
Insurance Agency and }
New Hampshire Indemnity Company }
Trial Judge: Matthew I. Katz
In the above-entitled cause, the Clerk will enter:
¶ 1. This interlocutory appeal turns on whether defendant-appellee
New Hampshire Indemnity Company (insurer) properly provided notice to its
insured, plaintiff Tamie Loiselle, of the cancellation of plaintiff's
automobile insurance policy under 8 V.S.A. §§ 4224(a) and 4226. The trial
court held that insurer did comply with the statutes and granted summary
judgment in insurer's favor. We affirm and remand.
¶ 2. Plaintiff purchased automobile insurance from insurer through
defendant-appellant Barsalow Insurance Agency (Barsalow) beginning in July
1998. The parties agree that insurer attempted to cancel the policy in
April 2000 for nonpayment of the premium. Insurer claims that it mailed
Loiselle a cancellation notice dated March 17, 2000, at her then-current
address. The notice stated that insurer would cancel the policy if it did
not receive the delinquent premium payment on or before April 9, 2000.
Loiselle testified that she never received the notice.
¶ 3. Loiselle testified that she learned of the cancellation in
early June 2000, when she called Barsalow after her husband received notice
from the State of Vermont that his driver's license was going to be
suspended for lack of insurance coverage. Loiselle asked Barsalow about
the status of the policy, and Barsalow advised her that insurer had
canceled the policy in April and would refund the payment Loiselle had
tendered in May. Barsalow advised Loiselle that she would have to apply
for new insurance in order to obtain coverage.
¶ 4. On June 9, after the above-described interactions with
Barsalow, Loiselle had an accident with an uninsured motorist. Insurer
denied coverage because, in its view, it had already canceled the policy.
Loiselle sued Barsalow and insurer. As to Barsalow, she claimed that the
agency had agreed to provide insurance coverage from the time of their
conversations prior to the accident until her husband was able to go to
Barsalow's office and sign an application for a new policy and pay the
initial premium. As to insurer, she claimed that the purported policy
cancellation was invalid.
¶ 5. Barsalow moved for summary judgment, arguing that insurer had
to cover plaintiff's damages because it did not provide proper notice of
cancellation as a matter of Vermont law. Specifically, Barsalow argued
that insurer did not comply with 8 V.S.A. § 4226, which requires an insurer
to send a notice of cancellation by certified mail or to obtain a
certificate of mailing to prove it was sent. Insurer moved for summary
judgment against plaintiff and opposed Barsalow's motion, arguing that the
cancellation was effective as a matter of law because it did obtain a valid
certificate of mailing.
¶ 6. The superior court denied Barsalow's motion and granted
insurer's, holding that the certificate of mailing provided by insurer
satisfied § 4226, and that insurer proved as a matter of law that it had
sent proper notice under 8 V.S.A. § 4224(a), thus effectively canceling
plaintiff's policy. The court granted Barsalow's motion to take the
instant interlocutory appeal. Barsalow advances two points on appeal: (1)
insurer failed to prove a valid certificate of mailing under § 4226; and
(2) insurer did not use a proper method of providing notice under §
4224(a). We reject both arguments and affirm.
¶ 7. We review a decision on a motion for summary judgment de
novo, employing the same standard as the trial court. Hardwick Recycling &
Salvage, Inc. v. Acadia Ins. Co., 2004 VT 124, ¶ 14, 177 Vt. 421, 869 A.2d 82. To prevail on a motion for summary judgment, the moving party
must show there is no genuine issue as to any material fact and that it is
entitled to judgment as a matter of law. V.R.C.P. 56(c)(3). Where a
genuine issue of material fact exists, summary judgment may not serve as a
substitute for a determination on the merits. Human Rights Comm'n v.
Benevolent & Protective Order of Elks, 2003 VT 104, ¶ 11, 176 Vt. 125,
839 A.2d 576.
I.
¶ 8. First, the trial court correctly concluded that insurer
properly provided notice by mail under Vermont law. Under § 4226, "[w]hen
notice required under section 4224 or section 4225 of this title is
provided by mail, such notice shall be by certified mail, except that in
the case of cancellation for nonpayment of premium notice shall be by
certified mail or certificate of mailing." The statute does not define the
term "certificate of mailing."
¶ 9. To prove compliance with § 4226, insurer proffered a two-page
document dated March 16, 2000 and entitled "certificate of mailing." Each
page consists of eleven rows of information. Each row contains an item
number, a policy number, an addressee's name, address, and ZIP code, an
effective cancellation date, and a fee. One page contains an entry for
Loiselle. The other page, in addition to the information described above,
bears several metered postmarks and a box at the bottom of the page
indicating 2331 "Total Number of Pieces Listed by Sender" and 2331 "Total
Number of Pieces Received at Post Office" and bearing a signature under
"Postmaster Per (Name of Receiving Employee)".
¶ 10. Copies of this document were attached to two affidavits from
Bill Conlin, an employee of insurer whose duties included maintaining
records of cancellations of insurance policies for nonpayment. Conlin
stated that he was familiar with the procedures and documents used by
insurer to notify insureds of insurer's intent to cancel due to nonpayment.
He also explained the genesis of the two-page document. He stated that
documents of that kind were prepared at or near the time indicated with
information transmitted by a person with knowledge of the facts contained
in the documents. They were kept in the ordinary course of insurer's
business, and it was insurer's regular practice to create them. He also
described the procedure for mailing out cancellation notices: all of the
notices being sent out on a given day would be delivered to the post office
with a certificate of mailing. The postal service would customarily stamp
the first page of the certificate as confirmation that the notices were
mailed.
¶ 11. The trial court was well within its discretion in concluding
that, taken together, Conlin's affidavits laid a proper foundation for the
two-page document by explaining that it was produced in the regular course
of insurer's business using information collected from persons with
knowledge of the relevant facts. See USGen New England, Inc. v. Town of
Rockingham, 2004 VT 90, ¶ 22, 177 Vt. 193, 862 A.2d 269 ("[T]he general
standard for review of evidentiary rulings is abuse of discretion . . .
."). Thus, the court properly determined that the affidavits proved "a
standard office practice or procedure designed to ensure that items are
properly addressed and mailed," thereby giving rise to a presumption that
the items reflected on the document, including Loiselle's cancellation
notice, were received by the addressees. Residential Holding Corp. v.
Scottsdale Ins. Co., 729 N.Y.S.2d 776, 778 (App. Div. 2001). This reliance
on insurer's custom and practice in mailing out cancellation notices makes
sense because "no one can be expected to have independent recall of all the
correspondence mailed out by a business of any size." Olson v. Hardware
Dealers Mut. Fire Ins. Co., 156 N.W.2d 429, 432 (Wis. 1968). Barsalow's
only evidence to the contrary, Loiselle's denial of receipt, is
insufficient. See Donegal Mut. Ins. Co. v. Pa. Dep't of Ins., 694 A.2d 391, 394 (Pa. Commw. Ct. 1997) (holding that when insurer has demonstrated
custom as to mailing of cancellation notices, "[a] mere denial that the
item was received is not sufficient to overcome the presumption that the
item was received"). Therefore, the trial court properly concluded that
the two-page document and Conlin's affidavits demonstrated that insurer
properly sent Loiselle's notice by certificate of mailing under § 4226.
¶ 12. We reject each of Barsalow's arguments to the contrary.
First, Barsalow claims the document is deficient because no postmark or
signature appears on the page bearing Loiselle's entry. The page that the
post office stamped bears six postmarks: five indicating postage of $99.99
and one indicating postage of $82.80. Given that the page contains only
eleven pieces, it stands to reason that the postage reflected by the six
postmarks pertains to the entire mailing, not just the pieces listed on
that page. Additionally, the postmarked page contains items one through
eleven, reflecting Conlin's statement that the post office customarily
stamped only the first page of the multipage certificates of mailing
generated by insurer.
¶ 13. Barsalow also argues that a certificate of mailing must be a
United States Postal Service (USPS) form. Neither the applicable statutes
nor the insurance policy at issue here define the term "certificate of
mailing." Moreover, USPS guidelines expressly permit the use of USPS Form
3877 or a "facsimile" that "contain[s] the same information as the
postal-provided form" as a certificate of mailing for three or more pieces.
Postal Bulletin S914, Certificate of Mailing, S914.1.4 (Oct. 30, 2003).
Thus, we decline Barsalow's invitation to read into § 4226 a requirement
that a valid certificate of mailing must be on a USPS-provided form.
Because the document proffered by insurer contains the same operative
information as USPS Form 3877-item number, address, and postage-and differs
only in its omission of spaces to check off when buying various optional
postal services, it is a proper facsimile of Form 3877.
¶ 14. Finally, Barsalow argues that the court erred in considering
the two-page document submitted by insurer because the pages were pulled
out of a larger document, rendering them untrustworthy. The trial court,
however, enjoys broad discretion in making evidentiary rulings, and those
rulings will stand on appeal unless the court abused or withheld its
discretion. State v. Hemond, 2005 VT 12, ¶ 7, 16 Vt. L. Wk. 64, 868 A.2d 734 (mem.). Here, the trial court reasoned that the corresponding titles
and headers at the top of each page created a presumption that the two
pages were part of the same form. That presumption was bolstered by
Conlin's statement that the pages were part of a certificate confirming
that 2331 pieces were mailed on or about March 17, 2000. Thus, the record
supported the court's consideration of the two-page document, and no abuse
of discretion occurred. Accordingly, the trial court correctly held that
insurer's proffer of the document and Conlin's affidavits proved compliance
with § 4226. See Donegal Mut. Ins. Co., 694 A.2d at 394 (holding that
insurer proved mailing of cancellation notices by offering computer
printouts showing dates of notices, certificates of mailing corroborating
those dates, and testimony that it was insurer's custom to obtain
certificates of mailing and that the documents at issue were created in the
normal course of business).
II.
¶ 15. The trial court also properly interpreted 8 V.S.A. § 4224(a)
in holding that insurer gave valid notice of its intent to cancel the
policy. Under § 4224(a),
[n]o notice of cancellation of a policy of insurance . . . shall
be effective unless mailed or delivered by the insurer to the
named insured at least 45 days prior to the effective date of
cancellation, provided, however, that where cancellation is for
nonpayment of premium at least 15 days' notice of cancellation
shall be given.
The question is the meaning of the word "given." Barsalow argues that it
means actual receipt by the insured, citing Rocque v. Cooperative Fire
Insurance of Vermont, 140 Vt. 321, 438 A.2d 383 (1981), for the proposition
that proof of actual receipt is necessary when the policy does not
stipulate the method of notice.
¶ 16. As the trial court aptly explained, however, the phrase
"mailed or delivered" in the first clause of § 4224(a) "informs the term
'given' and limits its possible meaning. 'Mail or delivery' defines the
method of notice. '[F]ifteen days notice . . . given' merely shortens the
time requirement in cases of nonpayment." The court also observed that
Barsalow's reading would "afford an ambiguous term ('given') precedence
over a specific one ('mailed or delivered')." Indeed, Barsalow's reading
of § 4224(a) would redefine "notice" to mean actual receipt by the insured
instead of "certified mail or certificate of mailing" as provided by §
4226, thus rendering § 4226 a nullity. We presume that the Legislature
does not enact meaningless legislation, Chittenden v. Waterbury Ctr. Cmty.
Church, Inc., 168 Vt. 478, 491, 726 A.2d 20, 29 (1998), and that it chooses
its language advisedly so as not to create surplusage. State v. Carroll,
2003 VT 57, ¶ 7, 175 Vt. 571, 830 A.2d 89 (mem.). Accordingly, we reject
Barsalow's reading of § 4224(a).
¶ 17. Further, Rocque is inapplicable here because it involved a
fire insurance policy not subject to §§ 4224 and 4226. See 8 V.S.A. §
4222(1) (defining "Policy" as "an automobile liability policy" for purposes
of subchapter containing §§ 4224 and 4226). Instead, the decision rested
on the
general rule that where an insurance policy . . . provides that
the policy may be cancelled by giving notice to the insured in a
specified number of days, without stipulating any particular form
or way in which such notice must be given, actual receipt by the
insured of such notice is a condition precedent to a cancellation
of the policy by the insurer.
140 Vt. at 325, 438 A.2d at 385 (emphasis added). The policy in Rocque did
not so stipulate, stating only that it could "be cancelled at any time by
this Company by giving to the insured a five days' written notice of
cancellation." Id. By contrast, in the instant case, § 4226 does
stipulate a particular method of delivering a notice of cancellation,
stating that "in the case of cancellation for nonpayment of premium notice
shall be by certified mail or certificate of mailing." Thus, the rule
applied in Rocque is inapplicable here.
¶ 18. Accordingly, because insurer obtained a valid certificate of
mailing of the notice of cancellation under § 4226, and it is undisputed
that insurer placed that document in the mail more than fifteen days prior
to the cancellation date, it follows as a matter of law that insurer
complied with § 4224(a)'s requirement that "15 days' notice of cancellation
shall be given." In light of the above, we need not address insurer's
argument concerning whether Loiselle received actual notice of cancellation
or its procedural arguments concerning Barsalow's summary judgment motion
and opposition.
Affirmed and remanded.
BY THE COURT:
_________________________________________
Paul L. Reiber, Chief Justice
_________________________________________
John A. Dooley, Associate Justice
_________________________________________
Denise R. Johnson, Associate Justice
_________________________________________
Marilyn S. Skoglund, Associate Justice
_________________________________________
Brian L. Burgess, Associate Justice
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