Barrios v. Dade County of State of Florida, 69 Civil 2428.

• Decision Date: 07 January 1970
• Docket Number: No. 69 Civil 2428.,69 Civil 2428.
• Parties: Juana BARRIOS, Maria Rosado and Candido Rosado, Plaintiffs, v. DADE COUNTY OF the STATE OF FLORIDA, the Dade County Port of Authority, and The Travelers Insurance Company and The Travelers Indemnity Company a/k/a The Travelers, Defendants.
• Court: U.S. District Court — Southern District of New York

310 F. Supp. 744

Juana BARRIOS, Maria Rosado and Candido Rosado, Plaintiffs, v. DADE COUNTY OF the STATE OF FLORIDA, the Dade County Port of Authority, and The Travelers Insurance Company and The Travelers Indemnity Company a/k/a The Travelers, Defendants.

No. 69 Civil 2428.

United States District Court S. D. New York.

January 7, 1970.

Melvin W. Knyper, New York City, for plaintiffs, Howard Schaerf, New York City, of counsel.

Haight, Gardner, Poor & Havens, New York City, for defendants, Douglas B. Bowring, New York City, of counsel.

OPINION

EDWARD WEINFELD, District Judge.

This case in one aspect presents still another variant of the much-discussed and oft-criticized Seider v. Roth decision¹ of the New York Court of Appeals — here a direct action against the insurer in the absence of a direct action statute either in New York or the state of occurrence of the accident.

Plaintiffs, residents of New York, commenced this action in the New York State Supreme Court to recover damages for personal injuries sustained as a result of an accident which occurred at the Miami International Airport, Florida. The defendants Dade County of the State of Florida and The Dade County Port of Authority, the owner and operator respectively of the airport, are charged with negligent conduct in its maintenance and operation. The defendants The Travelers Insurance Company and The Travelers Indemnity Company (hereafter referred to collectively as The Travelers or the insurer) issued a policy of liability insurance to Dade County and The Dade County Port of Authority covering claims or actions for personal injuries such as those advanced by plaintiffs.

The Travelers, which is licensed to do business in New York State and maintains an office in this city, was served with process by service upon the Superintendent of Insurance of the State of New York.² The validity of this service and jurisdiction over that defendant is not challenged.

In rem jurisdiction was acquired over Dade County and The Dade County Port of Authority under an order of attachment and a levy made in this state upon the debt arising under the policy of insurance issued by The Travelers. Each defendant was served with a summons and complaint in furtherance of the attachment. The service and attachment procedure conformed to that approved by the New York Court of Appeals in Seider v. Roth, and subsequently upheld as constitutionally valid by that court in Simpson v. Loehmann³ and by our Court of Appeals in Minichiello v. Rosenberg.⁴

The action was removed to this court upon a removal petition alleging diversity of citizenship between the plaintiffs and the defendants. The respective defendants thereafter filed their answers and the matter is now before the court on the plaintiffs' motions (1) to remand the action to the state court, and (2) to dismiss various affirmative defenses interposed by the defendants. All the defendants cross-move (1) to transfer the action to the Southern District of Florida pursuant to 28 U.S.C., section 1404(a), and The Travelers cross-moves (2) to dismiss the action against it pursuant to Rule 12(b) (6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted, thus presenting the novel aspect of the Seider v. Roth concept.

Plaintiffs' motion to remand must be denied. Despite plaintiffs' contention that no diversity exists, the facts are otherwise. The Travelers was and is a Connecticut corporation with its principal place of business at Hartford, Connecticut.⁵ Plaintiffs' feeble assertion that because it maintains an office in this city it has its principal place of business here is without substance.⁶ As to the Dade County defendants, it is undisputed they are corporate entities or political units of the State of Florida.⁷ Diversity jurisdiction exists, and consequently the motion to remand must be denied.

The plaintiffs next move to strike the first affirmative defense of the Dade County defendants, which alleges the complaint fails to state a claim against them upon which relief can be granted. This affirmative defense appears to be frivolous: the complaint contains the usual allegations charging the defendants with negligent breach of duty in the maintenance and operation of the airport, proximate cause, resulting damages, and plaintiffs' freedom from contributory negligence, and further alleges compliance with the statutory notice requirements upon these defendants and their failure to adjust the claim. The plaintiffs' motion to strike the first affirmative defense of the Dade County defendants is granted.

The plaintiffs also move to strike the third, fourth and fifth affirmative defenses interposed by the Dade County defendants, which in substance challenge the constitutional validity of the Seider v. Roth procedure upon the grounds of (1) denial of due process of law, (2) undue burden upon interstate commerce, and (3) impairment of the validity of the contract of insurance. Precisely these three claims of constitutional infirmity have been advanced before and rejected by the New York Court of Appeals⁸ and our Court of Appeals.⁹ Nonetheless, the issue is not free from doubt¹⁰ and has not been finally resolved by the highest court of the land. In this circumstance, it would appear that to preserve the constitutional claim, these defenses should be permitted to stand even though, as long as Simpson and Minichiello remain undisturbed, the defenses will be of no avail to the defendants.

Next, we reach the latest ramification of Seider v. Roth. Plaintiffs allege a claim directly against The Travelers based upon the essential allegations of the negligence claim against the Dade County defendants, "in the event that a direct action against the insurance company is sanctioned * * *." The Travelers seeks dismissal of the action against it on the ground that under existing New York law, which is controlling on this issue under Erie R.R. v. Tompkins,¹¹ an insurance company may not be sued directly for the negligence of its insured absent a "direct action" statute such as the Supreme Court upheld in Watson v. Employers Liability Assurance Corp.¹² It emphasizes that neither New York nor Florida has a direct action statute and accordingly contends that New York would not countenance this action. Plaintiffs cross-move to strike The Travelers' affirmative defense.

There is no decision by the New York courts on this precise point; thus, the Court is called upon to forecast whether New York would be hostile to the maintenance of the direct claim against the insurer. The underlying rationale of Seider v. Roth and related cases which followed it indicate that no public policy of the state would prohibit the maintenance of this suit and indeed to the contrary that it would be favored.¹³ Even more direct support for the present action is found in Oltarsh v. Aetna Insurance Co.,¹⁴ decided one year before Seider, where the New York Court of Appeals permitted New York residents injured in Puerto Rico to bring a direct action against the insurer in the New York courts. Puerto Rico had a direct action statute. New York applied that statute under a conflict of laws doctrine, enforcing a substantive right of the injured person to sue the insurer directly.¹⁵ Although New York had no similar law permitting the direct suit, it held such a suit was not offensive to any public policy of the state.

While it is true that Florida has no such statute, its highest court, in Shingleton v. Bussey,¹⁶ recently permitted a direct action against the insurance company despite the absence of a state law authorizing such a suit. In so doing, the Florida Supreme Court overruled prior decisions and stated: "We conclude a direct cause of action now inures to a third party beneficiary against an insurer in motor vehicle liability insurance coverage cases as a product of the prevailing public policy of Florida."¹⁷ The actual holding of Shingleton is limited to direct actions against automobile liability insurers, whereas the present action involves a general indemnity insurer. Although the peculiar role of automobile liability insurance and the state's Financial Responsibility Law played some role in the Florida court's reasoning, other aspects of its reasoning are sufficiently generalized to permit a direct action in the present context as well.

The Travelers seeks to overcome the force of Shingleton by claiming that the holding there was procedural and hence unenforceable in this Court, particularly since New York's substantive law authorizes a direct action against the insurer only where a judgment against the insured remains unsatisfied for thirty days.¹⁸ But its arguments are not persuasive. First, a fair reading of the Florida holding indicates that it recognizes a substantive right in an injured person as a third party beneficiary of the insurance policy to recover directly from the liability insurer of the tortfeasor. Florida, no less than Puerto Rico, created "a separate and distinct right of action against the insured where no such right had previously existed and thus effected a radical change in the rights accorded injured persons."¹⁹ Once having created this substantive right, the Florida court decided that under its practice and procedure the injured person could join the insurer as a codefendant in the action against the claimed tortfeasor. But the basic holding created a substantive right. That the right was "judicially" rather "legislatively" created does not detract from its force.²⁰

Second, as to the contention that absent a judgment against the assured unpaid for thirty days, New York's Insurance Law would prohibit this suit, the New York Court of Appeals in Oltarsh explicitly rejected such an argument where a direct action was otherwise authorized by applicable foreign law.²¹ Thus, with New York receptive to direct actions by its residents against insurers arising from out-of-state accidents, at...