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02/10/76 GOOD v. DETROIT AUTOMOBILE INTER-INSURANCE

February 10, 1976

GOOD
v.
DETROIT AUTOMOBILE INTER-INSURANCE EXCHANGE



Appeal from Macomb, George R. Deneweth, J.

Bashara, P. J., and D. F. Walsh and W. S. White,* JJ.

SYLLABUS BY THE COURT

1. Insurance -- Statutes -- Notice of Cancellation -- Mailing of Notice -- Presumption of Receipt.

The effect of a statutory provision that the mailing of an insurance cancellation notice to the insured is prima facie proof of notice is to codify the common law presumption that a letter mailed is presumed received by the addressee (MCLA 500.3020; MSA 24.13020).

2. Evidence -- Mailing of Letter -- Business Custom.

Evidence of the business custom or usage of an established business is sufficient to show the fact of mailing of a letter without further testimony by an employee regarding compliance with the custom, because such testimony would be merely cumulative of a description of the office practice.

3. Evidence -- Mailing of Letter -- Business Custom -- Receipt by Addressee -- Rebuttal Presumptions.

Upon proper evidence of business custom and habit of a commercial house as to addressing and mailing, the mere execution of a letter in the usual course of business raises a rebuttable presumption of subsequent receipt by the addressee, and the fact that a letter was mailed with a return address but was not returned lends strength to this presumption.

4. Evidence -- Insurance -- Presumptions -- Rebuttal Evidence -- Notice of Cancellation -- Mailing of Notices -- Receipt by Addressee.

A presumption becomes only a permissible inference when competent evidence is offered in rebuttal, but if the trier of fact cannot decide upon which side the evidence preponderates, then the presumption governs as a matter of law; therefore, a plaintiff insured was properly presumed to have received notices of cancellation of an insurance policy where evidence was presented to show that such notices were mailed and where the trial court, sitting without a jury, found that the plaintiff failed to establish by a preponderance of the evidence that she had not received the notices.

The opinion of the court was delivered by: Bashara

Complaint by Frances Good against the Detroit Automobile Inter-Insurance Exchange for a declaratory judgment that an insurance policy had not been cancelled. Judgment for defendant. Plaintiff appeals.

This is an appeal of a judgment for the defendant in a declaratory judgment action. GCR 1963, 521. The plaintiff sought a determination of whether her automobile policy covering a family car was cancelled on January 11, 1972, after the car was involved in an automobile collision on March 18, 1972. The issues presented all revolve around whether the plaintiff received the notices canceling her insurance policy.

The first issue raised on appeal is whether the insured must have actually received the notice of cancellation. We recognize that there is a split of opinion on this issue between two panels of our Court. Gooden v Camden Fire Insurance Assoc, 11 Mich App 695; 162 NW2d 147 (1968), lv den 381 Mich 775 (1968), held that the notice of insurance cancellation statute, MCLA 500.3020; MSA 24.13020, required actual receipt of notice to effectuate cancellation of the insurance contract. Raptis v Safeguard Insurance Co, 13 Mich App 193; 163 NW2d 835 (1968), interpreted the ...


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