Confederation Life Ass'n v. Vega Y Arminan

• Decision Date: 23 January 1968
• Docket Number: No. 67--695,67--695
• Citation: 207 So.2d 33
• Parties: CONFEDERATION LIFE ASSOCIATION, a Canadian insurance corporation, Appellant, v. Manuel Antonio VEGA Y ARMINAN, Appellee.
• Court: Florida District Court of Appeals

Page 33

207 So.2d 33

CONFEDERATION LIFE ASSOCIATION, a Canadian insurance corporation, Appellant, v. Manuel Antonio VEGA Y ARMINAN, Appellee.

No. 67--695.

District Court of Appeal of Florida, Third District.

Jan. 23, 1968.

On Rehearing Feb. 27, 1968.

Shutts & Bowen and Cotton Howell, Miami, for appellant.

Helliwell, Melrose & DeWolf and Michael G. Martin, Miami, for appellee.

Before PEARSON, HENDRY and SWANN, JJ.

HENDRY, Judge.

This case involves a claim in equity by a Cuban refugee against a Canadian insurance company for the cash surrender value of a policy of life insurance. The court below entered an order denying defendant's motion for summary judgment, granting summary judgment in favor of the plaintiff on the issue of liability only, and reserving jurisdiction to determine the exact amount of plaintiff's recovery, including any allowable attorney's fees. The defendant insurance company seeks review of the lower court's order by interlocutory appeal.

The material facts disclosed by the pleadings, together with the supporting affidavits, are not disputed. We quote from the chancellor's summary of those facts as contained in the order appealed:

'1. The Plaintiff is a resident of of Dade County, Florida, and is sui juris. The Defendant is a Canadian insurance corporation authorized to do business in Florida and doing business in Florida, with its principal place of business in Toronto, Canada.

'2. This court has jurisdiction of the subject matter and the parties hereto.

'3. On or about February 28, 1928, the Defendant, for a valuable consideration, executed and delivered to the Plaintiff its insurance policy No. 273630 in the City of Havana, Cuba, while the Plaintiff was a resident of Cuba. The Defendant agreed to insure the life of the Plaintiff for the sum of Five Thousand and No/100 ($5,000.00) Dollars and agreed that the value of the cash or surrender value of the policy after an interval of twenty (20) years had passed and would be a sum in the amount of Five Thousand, Eight Hundred, Twenty-five and No/100 ($5,825.00) Dollars if the Plaintiff made yearly payments from February 14, 1928, the date of issuance of the said policy, until February 14, 1947, making a total of twenty (20) yearly payments in the sum of Two Hundred, Forty-two and No/100 ($242.00) Dollars per payment. The Plaintiff duly paid all of the premiums required to be paid by the terms of the said policy of insurance, and the said policy is still in force and effect.

'4. All of the said premium payments were made in United States Dollars in Havana, Cuba.

'5. On or about July 1, 1951, the government of Cuba enacted and put into effect Decree No. 1384. Law No. 568 was enacted and became effective on or about October 2, 1959, in Cuba, and Law No. 930, was enacted and became effective in Cuba on or about February 23, 1961. The said laws and decrees are generally known as the Cuban Monetary Control Laws, and and have the effect of requiring that all obligations payable in Cuba be paid in Cuban pesos.

'6. On or about March 7, 1961, in the City of Miami, Florida, Plaintiff duly demanded of the Defendant payment of the said cash surrender value of the said policy, as of that date, according to to the schedule appearing on Page 2 of the said policy. The Defendant refused and still refuses to pay the said cash surrender value in any place other than in Havana, Cuba, and in any currency other than Cuban pesos.

'7. The plaintiff was a resident of Cuba on or about January 1959, when a violent revolution took place in Cuba by which the lawful government of Cuba was deposed and a revoluntionary government seized power and has since that time maintained its power over Cuba as the De facto government. Because of the plaintiff's opposition to the revoluntionary government, the plaintiff could no longer remain in Cuba without great fear for his life and safety, and the lives and safety of his family and did, therefore, on or about September 2, 1960, depart from Cuba and take up residency in the United States of America in the City of Miami, Florida. Plaintiff is now a permanent resident of the State of Florida and was granted permanent immigrant registration No. A--12--447--101, on or about June 2, 1964, by the United States government. The Plaintiff is prevented from entering Cuba because of fear for his life or imprisonment at the hands of Cuba.

'8. Plaintiff proceeded, at law, on or about April 27, 1961, in an action against the Defendant on the said insurance policy No. 273630 in the Circuit Court in and for Dade County, Florida, at Law, No. 61L--1651, wherein a Final Order of Dismissal, without prejudice, was entered on January 14, 1965, by the Circuit Judge, leaving the Plaintiff without remedy in a Court of Law.

'9. The Defendant has, and still maintains, that it will pay to the Plaintiff the cash surrender value of the said policy, but only in Havana, Cuba, in Cuban pesos, and has refused to pay the said sum in the United States to the Plaintiff in United States dollars.

'10. The Plaintiff was required to, and did, employ the attorneys of record in this cause to institute suit on his behalf to recover the said sums and has thereby become obligated to pay his attorneys a reasonable attorney's fee for their services.

'11. The terms of the policy provide, Inter alia, that:

(a) 'all payments under this policy will be in legal tender of the United States of America',

(b) 'all payments under this policy whether by the company or the insured shall be made in the City of Havana, Cuba; except that the insured may, with the consent of the company, make his payments elsewhere'.'

To the foregoing summary we would add only a few of the remaining pertinent parts of the insurance policy taken from the English translation which appears in the record on appeal. The first of these policy parts is a paragraph entitled, 'Residence, Travel and Occupation', which reads:

'No restriction obliges the insured under this policy regarding residence, travel or occupation, except those mentioned in the clauses covering total incapacity and double indemnity in case of accidents if these two clauses or any of them should be attached to this policy.'

Secondly, a portion of another paragraph proclaims:

'This Contract Is Integral And Invariable

'* * * This contract may not be amended or modified in any way unless such amendment or modification should be verified by writing by one of the members of the executive personnel of the Company in the home office in Toronto, Canada, * * *'

Finally, a paragraph appears on the cover of the policy stating:

'Important Notice'

'2. It is not necessary for the assured or the beneficiary of this policy to utilize any person, firm or corporation to collect this insurance or to obtain some of the benefits indicated by the policy. Write directly to the Confederation of Canada or communicate with the authorized agent of the Company which has his residence nearest the place where you are and who is obligated to attend and facilitate for you any arrangement without any expenses for you.'

It should be stressed that the Confedation Life Association does not deny that it has a contractual obligation to the plaintiff. The essence of the insurer's defense is that Cuban law, coupled with the terms of the policy, create an obligation of such a nature that it may be satisfied only by payment to the insured of Cuban pesos at Havana, Cuba.

In support of its defense, appellant contends that the issues presented in the cause sub judice are controlled by the leading Florida case of Confederation Life Association v. Ugalde ¹ and the attendant line of cases. ² We are of the opinion, however, that certain events materially affecting the applicable law have occurred since the Ugalde decision which necessitate a re-examination of this Court's position in such cases.

The lower court's jurisdiction over the person of the appellant is not contested, ³ nor is it disputed that the appellee may seek to enforce his contractual rights in the courts of this State. ⁴ The initial problem confronting the court, then, is to determine what law to apply.

The chancellor found that the contract of insurance in this case was entered into in Cuba, by and between a Cuban resident and a Canadian insurance company doing business in Cuba. Under the terms of the policy, payments were to be made in Havana. Thus, counsel for the appellant argues that the ancient maxim of lex loci contractus applies, and that the law of the place of the contract should govern, that law being Cuban law. There is substantial conflict of authority regarding the test to be used in determining what law to apply. Four separate tests are most generally recognized: (1) the 'grouping of contracts' or 'center of gravity' test; (2) the 'intent of the parties' test; (3) the 'place of the contract' test; and (4) the 'place of performance' test. ⁵ While there exist no authority in Florida which specifically rejects other tests, it has been held that the lex loci contractus is preferable. ⁶ However this may be, we are unwilling to join appellant in its contention that the situs of the contract in this case is the Republic of Cuba.

Whereas the situs of the original insurance contract may have been Cuba, it neither logically nor necessarily follows that the situs of the completed cash surrender value option is the same. Generally, a contract is considered as having been entered into in that place in which the offer is accepted, or where the last act necessary to complete the contract is performed. ⁷ It is clear that under the terms of the insurance contract as it was written initially, there existed no fixed obligation on the part of the company to pay to the insured the cash surrender value of the policy. ⁸ In other words, there is no contract in regard to the cash surrender value. Rather, the cash surrender value clause constitutes a continuing, irrevocable offer by the company, which offer matures into a...