Confederation Life Ass'n v. Conte, No. 71--24
| Decision Date | 26 October 1971 |
| Docket Number | No. 71--24 |
| Citation | 254 So.2d 45 |
| Parties | CONFEDERATION LIFE ASSOCIATION, a Canadian corporation, Appellant, v. Reyes Arida CONTE, Appellee. |
| Court | Florida District Court of Appeals |
Shutts & Bowen, and Phillip G. Newcomm, Miami, for appellant.
Gary F. Canner, Lyons, Canner & Smith, P.A., Miami, for appellee.
Before SWANN, C.J., and CHARLES CARROLL and BARKDULL, JJ.
Confederation Life Association, a Canadian corporation, appeals from a summary final judgment for plaintiff, Reyes Arida Conte.
Conte sued the Association and alleged it issued to him in Havana, Cuba, a 20 year endowment policy in the sum of $4,000.00; that he made the yearly payments for twenty years to the association; that he was now a resident of Miami, Dade County, Florida; that he demanded payment of $4,000.00 (the matured value of the policy) but the defendant refused and still refuses to pay except in Cuban pesos in Havana, Cuba. He alleged that because a communist revolutionary government seized power in Cuba in 1959 and because plaintiff was classified as an enemy of the state by that government, by reason of his democratic ideals, the plaintiff was forced to flee Cuba; that plaintiff could not return to Cuba because of fear for his life or imprisonment as an enemy of the state; that any sum payable to him in Cuba would be immediately confiscated by the Cuban government and it would be a futile act to attempt to accept payment in Cuba; that plaintiff had no adequate remedy at law and, therefore, prayed that the court of equity order defendant to pay him the sum of $4,000.00 U.S. dollars, together with attorneys' fees, in the United States, pursuant to the subject insurance policy in order to prevent the defendant from being unjustly enriched.
The motion of the Association to dismiss the complaint for failure to state a cause of action was denied. In its answer the defendant admitted the policy was issued to plaintiff in Havana, Cuba but generally denied the rest of the allegations in the complaint and set forth various affirmative defenses. Plaintiff filed a motion for final summary judgment, together with a supporting affidavit. Defendant filed opposing affidavits, showing certain facts in support of its answer and certain of its affirmative defenses.
The trial court heard argument on the motion for final summary judgment and entered a summary final judgment for plaintiff and against the defendant, in the amount of $4,000.00 U.S. dollars, together with court costs. The court reserved jurisdiction for the purpose of awarding attorneys' fees to counsel for the plaintiff. The defendant's motion for rehearing and modification of final summary judgment was denied. The defendant filed its notice of appeal and the cause is now before us.
Our examination shows this insurance policy was issued to a Cuban resident, in Cuba, and that all premium payments were made in Cuba. There is some dispute as to whether the premium payments were made in pesos or in dollars but this would not create a material issue of fact because even if it were established that the insured paid and the company accepted dollars after the passage of certain Cuban currency laws, this would be insufficient to invoke an estoppel as each party would have been guilty of a violation of law. See Montsdoca v. Highlands Bank & Trust Co., 85 Fla. 158, 95 So. 666 (1923); and Northwestern National Casualty Company v. McNulty, 307 F.2d 432 (5 Cir. 1962).
The insured moved to Florida and demanded the association pay him the matured value of the endowment policy in dollars in Florida. It refused but offered to pay him only in pesos in Havana, Cuba. He sued in equity and recovered a judgment for the matured value of the policy in dollars.
We are unable to discover a second contract with a situs in the United States under these facts. See Confederation Life Association v. Vega y Arminan, Fla.App.1968, 207 So.2d 33, aff'd Fla.1968, 211 So.2d 169. We hold the second contract theory pronounced in Vega does not apply to the facts herein.
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