X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:The appellant, Southern County Mutual Insurance, appeals the trial court’s grant of summary judgment to the appellee, Surety Bank N.A., a lender that provides financing for purchasers of insurance to pay premiums owed on insurance policies. The parties’ dispute centers around Southern County’s alleged duty to refund premiums to Surety Bank after the financed insurance policy was cancelled. Scotts Temple, a church in Houston, was shopping for automobile insurance. Scotts Temple contacted its insurance agent, United National Insurance Agency, who in turn contacted U.S. Risk Underwriters Inc., an agent for Southern County. Southern County agreed to issue an insurance policy to Scotts Temple, and the coverage was bound as of March 29, 2001. Scotts Temple sought financing from appellee Surety Bank. On April 6, 2001, Scotts Temple and United National signed Surety’s Premium Finance Agreement. The PFA required a cash down payment of $11,706, so the amount actually financed by Surety Bank was $34,293. Surety Bank issued a check for $34,293 to Southern County’s agent, U.S. Risk, April 13, 2001. The terms of the PFA show that the $11,706 down payment was supposed to be paid by Scotts Temple; however, Scotts Temple never paid it. Under U.S. Risk’s agency contract with Southern County, U.S. Risk was required to forward the full amount of the premium due on each policy it sold for Southern County, regardless of whether U.S. Risk was actually able to collect the full amount from the insured. The PFA provided financing for only $34,293 of the $45,999 premium, leaving an unpaid balance of $11,706 the down payment that Scotts Temple never paid. Therefore, U.S. Risk paid Southern County the balance due, $11,706, out of its own pocket. According to Surety Bank, Scotts Temple continued its history of nonpayment by failing to remit any installments due under the PFA; therefore, the insurance policy was canceled in May 2001 � less than two months after it had taken effect. Southern Country subsequently returned to U.S. Risk unearned premiums in the amount of $31,721.70, which represented the portion of the policy premium that was paid in advance but not used because the insurance was canceled before the end of the policy period. U.S. Risk then added its unearned commission, $3,094.80, and deducted $7,133.60, claiming that this amount was its pro rata share of the portion of the premium that it had paid out of its own pocket when Scotts Temple failed to make the down payment. U.S. Risk then sent the remaining balance, $27,682.90, to Surety Bank. Surety Bank sued, contending that Southern County failed to refund the unearned premiums as required by the PFA and Texas law. Surety Bank moved for summary judgment against Southern County, arguing that 1. both the PFA and the Texas Insurance Code granted it a security interest in all unearned premiums and 2. Southern County was bound under the PFA through theories of agency and ratification. According to Southern County’s discovery responses, the total unearned portion of the original $45,999 premium was $38,685. However, United National and U.S. Risk had received commissions on the sale of the insurance policy amounting to 18 percent of the $45,999 gross premium. Therefore, Southern County returned 82 percent of the total unearned premiums and expected the agents to return the remaining 18 percent, which represented their unearned commissions on the unearned premiums. However, Surety Bank asserted that Southern County owed it the total unearned premiums, $38,685 � an amount that included the down payment paid by U.S. Risk as well as the agents’ unearned commissions. Because Surety Bank had already received $27,682.90 in unearned premiums from U.S. Risk, it asked the court to award it the difference � $11,002 � as well as its attorney’s fees. The trial court so ordered when it granted Surety Bank’s motion and signed a final judgment against Southern County March 1, 2005. Southern County appeals. HOLDING:Reversed and remanded. To prevail on a breach of contract claim seeking a refund of unearned premiums, a premium finance company must establish that 1. the insurance policy provides for a refund of unearned premiums upon cancellation, 2. the premium finance company has authority to collect the refund, 3. the premium finance company gave timely notice of the financing agreement, 4. the insured defaulted on the premium finance agreement, 5. the premium finance company gave notice of the insured’s default and requested cancellation of the policy, and 6. the insurer failed to make the proper refund. The parties’ dispute centers around the sixth requirement: proof that the insurer failed to make the proper refund. Specifically, the parties disagree on what comprises the unearned premiums to be returned. Surety Bank argues that it possessed a security interest in every penny of premium that had not yet been earned by Southern County as of the policy cancelation date, regardless of the money’s source. But because Scotts Temple assigned Surety Bank the right to receive “any and all unearned premiums . . . which become payable under [the insurance policy],” Surety Bank stands in the shoes of Scotts Temple and may assert only those rights under the insurance policy that Scotts Temple itself could assert. “We cannot make this determination, however, because the summary judgment record does not contain the insurance policy or any other proof establishing the terms of the policy relating to the return of unearned premiums. Although a plaintiff who was not a party to the original insurance contract need not introduce the entire policy in evidence, it must in some way prove those terms of the policy that allow its recovery.” The record reveals only that Southern County was required to make the refund; it does not reveal that Southern County was required to return to Scotts Temple amounts paid by other parties (such as the down payment fronted by U.S. Risk), rather than to the parties who made those payments. Accordingly, a fact issue exists as to whether Southern County breached the insurance contract. OPINION:McCoy, J.; Cayce, CJ; Holman and McCoy, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.