Confederation of Canada Life Ins. Co. v. Vega y Arminan, 31739

• Decision Date: 19 September 1962
• Docket Number: No. 31739,31739
• Citation: 144 So.2d 805
• Parties: CONFEDERATION OF CANADA LIFE INSURANCE COMPANY, a/k/a Confederation Life Association, Petitioner, v. Manuel Antonio VEGA Y ARMINAN, Respondent.
• Court: Florida Supreme Court

Page 805

144 So.2d 805

CONFEDERATION OF CANADA LIFE INSURANCE COMPANY, a/k/a Confederation Life Association, Petitioner, v. Manuel Antonio VEGA Y ARMINAN, Respondent.

No. 31739.

Supreme Court of Florida.

Sept. 19, 1962.

Shutts, Bowen, Simmons, Prevatt & Boureau and Cotton Howell, Miami, for petitioner.

Helliwell, Melrose & DeWolf and David P. Karcher, Miami, for respondent.

O'CONNELL, Justice.

The District Court of Appeal, Third District, certified the subject case to be one involving a matter of great public interest. Accordingly, this Court has jurisdiction of the cause in certiorari proceedings under Florida Constitution, Art. V, Sec. 4(2), F.S.A. See Susco Car Rental System of Florida v. Leonard, Fla.1959, 112 So.2d 832.

The respondent, Manuel Antonio Vegary Arminan, instituted these proceedings in the Circuit Court for Dade County against the petitioner, Confederation of Canada Life Insurance Co., a Canadian insurance corporation. Respondent, a citizen of Cuba but residing in Florida, alleged that he had purchased an insurance policy from the petitioner in 1958, paid all the required premiums, and had demanded payment of the cash surrender value thereof, but the petitioner had refused to make such payment. He prayed for judgment against the petitioner in the amount of the cash surrender value plus a reasonable attorney's fee.

Petitioner filed a motion to dismiss the complaint on the ground, among others, that the court lacked jurisdiction over the subject matter and over the respondent.

The trial court entered an order denying the motion to dismiss, whereupon the respondent sought review by the district court of appeal through an interlocutory appeal. That court affirmed, writing the opinion herein reviewed, which opinion is reported in Fla. App., 135 So.2d 867.

It was noted by the district court that the policy was issued to respondent while he was a resident of Cuba and was accepted by the petitioner at its home office in Canada.

That court also observed that service of process was obtained upon the petitioner, who had qualified to do business in this state, by perfecting service on the Commissioner of Insurance of the State of Florida, pursuant to Sec. 624.0221, F.S.A., which reads in part as follows:

'(1) Each insurer applying for authority to transact insurance in this state, whether domestic, foreign or alien, shall file with the commissioner its appointment of the commissioner and his successors in office, on a form as furnished by the commissioner, as its attorney to receive service of all legal process issued against it in any civil action or proceeding in this state, and agreeing that process so served shall be valid and binding upon the insurer. The appointment shall be irrevocable, shall bind the insurer and any successor in interest as to the assets or liabilities of the insurer, and shall remain in effect as long as there is outstanding in this state any obligation or liability of the insurer resulting from its insurance transactions therein.

'(2) * * *

'(3) Service of process upon the commissioner as the insurer's attorney pursuant to such an appointment shall be the sole method of service of process upon an authorized domestic, foreign or alien insurer in this state.'

The district court said that petitioner had contended its registration under the above statute did not make it amenable to process in an action based upon a policy not written in the State of Florida. The court's reply was that the action was transitory and thus the action could be brought by the respondent against the petitioner in any jurisdiction where service of process could be made on the petitioner.

Petitioner argued that the language in the concluding sentence of subsection (1) of the above statute ('as long as there is outstanding in this state any obligation or liability of the insurer resulting from its insurance transactions therein') limited the authority of the insurance commissioner to accept service only as to causes of action arising out of the petitioner's activities in this state. The court expressed its conviction that this language limited the duration of the express agency but did not limit the authority granted to the agent.

It was also argued before the court by the petitioner that the test as to whether or not it was amenable to process issuing out of the courts of this state was the 'minimum contact' rule. The court determined that such rule applied to true substituted service statutes, such as Sec. 626.0505, F.S.A., and not to those cases where process is served upon an expressly designated agent of the corporation pursuant to statutes such as Sec. 624.0221, F.S.A., supra.

Finally, the court commented upon petitioner's assignment of error pertaining to the doctrine of forum non conveniens. It found the doctrine had not been presented to the trial court as ground for the motion to dismiss. The appellate court stated that, nevertheless, it had examined the record in the light of the discretion vested in the trial judge under the doctrine of forum non conveniens and had found no abuse of discretion, even had the issue been brought to his attention.

The district court of appeal thereupon affirmed the order of the trial judge denying the motion to dismiss the complaint.

Petitioner on this review by writ of certiorari raises two primary points for consideration. In addition, it reiterates its position that the Florida court was a forum non conveniens.

In this review, wherein the question was certified to us by the district court of appeal as being one of great public interest, we are interested in the entire decision of that court and not just in the 'question' certified. Zirin v. Charles Pfizer & Co., Fla. 1961, 128 So.2d 594.

In its opinion the district court of appeal expressed the view the trial judge had not abused his discretion on the question of forum non conveniens, even had the issue been presented to him. Quite obviously this question was not properly before the district court. Therefore that part of its opinion dealing therewith is obiter. Accordingly, under the facts of this case we are not privileged to consider and decide the question. We will not discuss it.

Although we have assumed jurisdiction in this cause under the certification by the district court, petitioner advances the theory that the instant decision is one which is in direct conflict with a decision of this Court, to-wit: Zirin v. Charles Pfizer & Co., Fla., 128 So.2d 594, supra.

Disposal of this last mentioned point will facilitate our disposition of the major points on this review; hence, we will first treat this contention.

The instant case involves the amenability of a foreign insurance corporation which has qualified to do business in this state (and thus has expressly appointed the insurance commissioner as its agent to receive service of process in any civil action or proceeding brought in this state) to service of process relating to a cause of action not arising within this state. The statute applicable is Sec. 624.0221, supra, which is subsection (3) provides that service upon the commissioner shall be the sole method of service of process upon an authorized insurer, domestic or foreign.

The Zirin case, on the other hand, involved a foreign corporation, not an insurer, which had not qualified to do business within this state. The applicable statute was Sec. 47.171, F.S.A.

The two cases involve two different kinds of corporations (qualified and non-qualified) and two different statutes (Sec. 624.0221 and Sec. 47.171). The instant case pertains to an expressly designated agent for the receiving of service of process where the sole method of obtaining service upon the corporation is by serving that agent. The Zirin case pertains to an agent impliedly authorized to receive such service and service upon him was not the sole method of obtaining service upon the foreign corporation.

The two cases are not in conflict.

Petitioner's major points on this review are that (1) Sec. 624.0221 cannot be construed to extend to service of process in a cause of action not arising out of the corporation's activities in this state and (2) if so construed, the statute is violative of constitutional due process.

Petitioner's brief and argument reflects confusion as to the applicable law. The statute and cases pertaining to service of process upon an actual representative or an impliedly appointed agent of a foreign corporation not authorized to do business within the state wherein the suit is brought are not applicable to the instant issue. The issue before us is restricted to those cases wherein the foreign corporation, as a condition precedent to its operations within the state, has expressly designated a public official as its agent for the purpose of receiving service of process. The question is whether that designation incorporates causes of action arising without the state and, if so, does the corporation thereby suffer a denial of due process of law.

Much has been written on this issue and while there is some conflict, the decided weight to authority is to the effect such a foreign corporation qualifying to do business in the state becomes amenable to process even as to causes of action not arising out of its transactions therein and thereby suffers no denial of...