Code section 9054 provides the policy may be canceled by the association giving five days written notice thereof to the insured. The bylaws of the association recite, "notice mailed to the address of the assured stated in the representations shall be a sufficient notice." The majority opinion states the question:"Does this provision of the policy conflict with the statute?" (Italics supplied.)
Having stated the question, the opinion proceeds to decision, not upon that question, but upon a different proposition to wit, the validity and effect of such provisions in the policy or bylaws, in the absence of statutory limitations. The opinion concludes that, while the authorities are in conflict, various holdings sustain the view that provisions similar to those in the aforementioned bylaws are not illegal and void. None of the outside cases cited as sustaining the holding discuss the effect of a statutory provision similar to ours. Not one bears upon the question: "Does this provision of the policy conflict with thestatute?"
The opinion quotes from the Virginia case of Wolonter v. United States Casualty Co., supra. That case makes reference to a statute which expressly provides for cancellation by "notice delivered to the insured or mailed to him at his last address." *Page 1327 Other cited authorities turn upon the principle that the parties to a contract may legally agree as to the method of its cancellation provided such method is not unreasonable nor unfair.
The only cited authority based upon a statute similar to ours is Galkin v. Lincoln Mutual Casualty Co., 279 Mich. 327,272 N.W. 694, 696. That decision was rendered in the following language:
"We are not in accord with appellant's contention that under the terms of its policy mailing notice of cancellation to the last-known address of the insured in and of itself canceled the policy. Instead, because of the statutory requirement hereinabove quoted, cancellation could not be effected by the insurer untilnotice thereof was received by the insured." (Italics supplied.)
No other decision directly in point is mentioned in the majority opinion. That other authorities have not been discovered may be due to the infrequency of like statutory provisions elsewhere. In a number of states the statutes detail the requirements relative to notice of cancellation. Obviously compliance with such statutes is sufficient. The Iowa statute requires giving written notice to the insured. Therefore, strict statutory compliance requires that the insured actually receive such written notice. The statute is a declaration of public policy upon this proposition. The majority holding that this statutory requirement may be contracted away, in effect abrogates the statute.
Nor is it sufficient answer to say that to "show the actual receipt of notice, would in many cases require an impossibility". Various other provisions of the Code require giving written notice and the occasional practical difficulty of compliance has not heretofore been recognized as obviating such requirements. Therefore, we respectfully dissent. *Page 1328