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This proceeding arose upon a request for hearing made by Andrew Atripaldi (the “Insured”) to contest the pending cancellation of automobile insurance coverage provided by Concord General Mutual Insurance Company (the “Company.”) On October 15, 2004, the Company mailed a notice of cancellation effective November 4, 2004, on policy number B764011 citing “payment that was returned by your bank because of insufficient funds.” as the grounds for cancellation. Pursuant to 24-A M.R.S.A. § 2920, the Insured's hearing request was made within the statutory time period.

A hearing in this matter was held on December 1, 2004, pursuant to 24-A M.R.S.A. § 2920 with Connie Mayette sitting as designated hearing officer. See 24-A M.R.S.A. § 210. The purpose of the hearing was limited to establishing the existence of proof or evidence given by the Company to support its reason for policy cancellation. Carla Aversa, Customer Service Manager of the Company, submitted a sworn statement on behalf of the Company in lieu of appearance at the hearing. The Insured did not appear at the hearing or submit a statement in lieu of appearance.

FINDINGS OF FACT
The following facts have been proven by a preponderance of evidence submitted:

1. The Company provides automobile insurance coverage to the Insured under Policy #B764011. The policy term is unknown. A previous term under the same policy number was July 21, 2001, to July 21, 2002.
2. The Insured made a payment of $164.25 to the Company with a check dated August 16, 2004. The due date of the payment is unknown.
3. The check was subsequently rejected by the financial institution upon which it was drawn, and returned to the Company stamped “Account Closed.”
4. The Company issued a notice of cancellation dated October 15, 2004, as a result of the rejected check. The actual mailing date of the certified mailing is unknown. The notice was delivered to the Insured on October 20, 2004.

ANALYSIS AND CONCLUSION OF LAW
Title 24-A M.R.S.A. § 2914 permits cancellation for nonpayment of premium. Section 2912(3) defines “nonpayment of premium” as "failure of the named insured to discharge when due any of his obligations in connection with the payment of premium on the policy, or any installment of a premium." Section 2914(1) provides that no notice of cancellation for nonpayment of premium is effective unless deemed received under section 2915 after the premium due date.

Ms. Aversa stated in her affidavit her belief that the Company’s nonpayment cancellation notice met the statutory requirements in 24-A M.R.S.A. §§ 2914, 2915. She submitted copies of the rejected check, the cancellation notice, and confirmation of delivery. She also submitted a certified copy of the subject policy showing a policy term that expired more than two years ago.

The Superintendent of Insurance has jurisdiction over this matter pursuant to 24-A M.R.S.A. § 2920. The Company bears the burden of proof for establishing that the statutory grounds for policy cancellation exist. Based on the evidence presented at the hearing, the Superintendent hereby concludes that the Company has not established adequate grounds for policy cancellation.

The Company demonstrated that the notice of cancellation was received by the Insured on October 20, 2004, but it failed to establish the due date of the premium in question. Section § 2914(1) specifically requires that in order to be effective, the cancellation notice must be received by the Insured after the premium due date. No payment due date can be discerned from the outdated, expired policy documents presented. As the validity of the notice cannot be established without information demonstrating that the Insured received the cancellation notice after the premium due date, the Company has failed to meet the requirements of section 2914(1) for cancellation due to nonpayment of premium.

INDEX OF RECORD:
Company Exhibit 1 – Affidavit of Carla Aversa
Company Exhibit 2 – Notice of Cancellation
Company Exhibit 3 – Undated Mail Receipt, Delivery Confirmation
Company Exhibit 4 – Rejected check
Company Exhibit 5 – Certified copy of 2001 Policy term

ORDER AND NOTICE OF APPEAL RIGHTS
The intended cancellation is not approved. Concord General Mutual Insurance Company is directed to continue coverage under Policy # B764011 without lapse. Coverage shall continue unless and until a subsequent valid notice of cancellation or nonrenewal of the policy is effected in accordance with applicable law. If a subsequent termination has taken effect, the policy will terminate on the date stated in the subsequent cancellation or nonrenewal notice.

This Decision and Order is a final agency action within the meaning of the Maine Administrative Procedure Act. It is appealable to the Superior Court in the manner provided in Title 24-A M.R.S.A. § 236 and M.R. Civ. P. 80C. Any party to the hearing may initiate an appeal within 30 days after receipt of this notice. Any aggrieved nonparty whose interests are substantially and directly affected may initiate an appeal within 40 days of the date of this Decision and Order. There is no automatic stay pending appeal; application for stay may be made in the manner provided in 5 M.R.S.A. § 11004.

Dated December 8, 2004                                             Alessandro A. Iuppa
                                                                                    Superintendent of Insurance

                                                                                    ____________________________________
                                                                                    by Connie Mayette
                                                                                    Designated Hearing Officer

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