Aetna Cas. & Sur. Co. v. Enright
| Decision Date | 29 February 1972 |
| Docket Number | No. 71--900,71--900 |
| Citation | 258 So.2d 472 |
| Parties | The AETNA CASUALTY AND SURETY COMPANY, Appellant, v. Thomas E. ENRIGHT, Appellee. |
| Court | Florida District Court of Appeals |
Kates, Ress, Gomez & Rothenberg and David Howland, North Miami, for appellant.
Headley & Sudduth, Bolles, Goodwin, Ryskamp & Ware, Miami, for appellee.
Before SWANN, C.J., and PEARSON and CHARLES CARROLL, JJ.
This appeal presents a question of the application of the public policy of the State of Florida. The trial court held that the public policy of the State of Florida as expressed by Florida statute voided the 'other insurance' or 'excess coverage' clause contained in an uninsured motorist provision of an automobile insurance policy issued in New York to a New York resident when the enforcement of the uninsured motorist provision was to be in Florida. We hold that the trial court incorrectly applied the public policy of the State of Florida and we reverse.
The plaintiff-appellant insurance company commenced suit by filing a complaint for declaratory judgment in the trial court. The complaint alleged that the insured defendant-appellee had made a claim for arbitration under the uninsured motorist provision of appellant company's policy and that the company was in no way indebted to the appellee under the terms of the policy. The court entered its final declaratory judgment ruling for the insured, holding that the 'other insurance' clause was contrary to the public policy of the State of Florida.
The appellee was injured in an automobile accident in Dade County, Florida, on February 24, 1970. At the time of the accident appellee was operating an automobile owned by one Ruth Lehman. The operator of the other car involved in the accident was not protected by an automobile liability insurance policy. Ruth Lehman and defendant were each covered by automobile liability policies, which provided uninsured motorist coverage. Appellee made a claim under Ruth Lehman's policy and settled said claim under the uninsured motorist provision for the policy limits. Appellee then sought further recovery by processing a claim under the uninsured motorist provision of his own policy issued by the appellant. Appellant relied upon the following clause contained in the uninsured motorist provision to deny further recovery.
'With respect to bodily injury to an insured while occupying an automobile not owned by the named insured, the insurance under Part IV (Uninsured Motorist Provision) shall apply only as excess insurance available to such automobile as primary insurance, and this insurance shall then apply only in the amount by which the limit of liability for this coverage exceeds the applicable limit of liability of such other insurance.'
The appellee and Ruth Lehman are both permanent residents of the State of New York; their policies of insurance were issued and purchased in the State of New York and each policy provided identical limits of coverage. The appellant and the appellee agree and the trial court noted in its opinion that the law would ordinarily require the application of New York law to the disputed contract insofar as that contract expresses the extent of the liability of the insurance company. See Northwestern National Casualty Co. v. McNulty, 307 F.2d 432 (5th Cir. 1962); Century Indemnity Co. v. United States Casualty Co., 306 F.2d 956 (5th Cir. 1962); Brown v. Case, 80 Fla. 703, 86 So. 684 (1920); Confederation Life Association v. Ugalde, Fla.App.1963, 151 So.2d 315.
The trial court held:
'This Court agrees that under the general provisions of conflict of laws, the laws of New York would ordinarily govern the disposition of the issues in this cause. However, recognition of foreign lay may be claimed only as a courtesy and not as a matter of right. This Court is not, therefor, absolutely obligated under the doctrine of comity to recognize and apply the law of the State of New York. Thus, the doctrine of comity does not require this Court to enforce any law of New York which is repugnant to the law or public policy of Florida.
'It appears quite clear that under the laws of New York the exclusionary clause above quoted is valid. On the other hand, a similar exclusionary clause has been held void under Florida law . . .
Therefore, the law of Florida and the law of New York on this issue being in Direct conflict, the doctrine of comity must yield.' (Emphasis added.)
The public policy of the State of Florida relative to uninsured motorist coverage is initially expressed in a statute:
'627.0851 Automobile liability insurance; uninsured vehicle coverage; insolvent insurer protection.--(1) No automobile liability insurance, covering liability arising out of the ownership, maintenance, or use of any motor vehicle, shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than limits described in § 324.021(7), under provisions filed with and approved by the department, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, however, that the coverage required under this section shall not be applicable where any insured named in the policy shall reject the coverage; provided further that, unless the named insured requests such coverage in writing, the coverage need not be provided in or supplemental to a renewal policy where the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer.'
In addition, this public policy has been followed in the Florida case law. It is expressed by the Supreme Court of Florida in Sellers v. United States Fidelity and Guaranty Co., Fla.1966, 185 So.2d 689 ...
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