Erie Ins. Exch. v. Larose

• Decision Date: 19 October 2016
• Docket Number: No. 2D15–5750.,2D15–5750.
• Citation: 202 So.3d 148
• Parties: ERIE INSURANCE EXCHANGE, Appellant, v. Albert Christopher LAROSE, Appellee.
• Court: Florida District Court of Appeals

202 So.3d 148

ERIE INSURANCE EXCHANGE, Appellant,

v.Albert Christopher LAROSE, Appellee.

No. 2D15–5750.

District Court of Appeal of Florida, Second District.

Oct. 19, 2016.

Jennifer J. Kennedy, Jeremy D. Bailie, and David J. Abbey of Abbey, Adams, Byelick & Mueller, L.L.P., St. Petersburg, for Appellant.

Andrew M. Bennett, Hendrik Uiterwyck, and Tomas L. Gacio of Abrahamson & Uiterwyck, Tampa, for Appellee.

VILLANTI

, Chief Judge.

Erie Insurance Exchange appeals the trial court's order that denied its motion to dismiss Albert Christopher Larose's complaint, which was based on the argument that the Florida courts did not have personal jurisdiction over Erie, an out-of-state insurance company that does no business in Florida.¹ While the trial court properly found that Larose had established a statutory basis for long-arm jurisdiction, the trial court erred in concluding that Erie had the requisite sufficient minimum contacts with Florida to satisfy constitutional due process. Therefore, we reverse and remand for dismissal.

The relevant facts are not in dispute. Erie is a Pennsylvania insurance company that is not licensed to issue insurance policies in Florida, has no office in Florida, and does not write policies or otherwise seek out business in Florida. In 2013, Erie issued an automobile insurance policy to Lake Geneva Indoor Toy Storage, a Wisconsin company. The policy was issued in Wisconsin, where Erie is licensed to do business, and it provided that the insured vehicles would be principally garaged in Wisconsin. However, Erie's policy did provide coverage, including uninsured motorist (UM) and underinsured motorist (UIM) coverage,² for automobile accidents occurring anywhere in the United States and Canada.

Sometime in 2013, someone from Lake Geneva drove one of its vehicles, insured by Erie, to Florida. While here, someone gave permission to Larose, a Florida resident, to drive the insured vehicle. There appears to be no dispute that Larose was driving the insured vehicle in Florida with the permission of the insured.³

While Larose was driving the insured vehicle in Pinellas County, Florida, he was involved in an automobile accident, during which he allegedly suffered injuries. Larose subsequently made a demand to Erie for payment of first-party UIM benefits under Lake Geneva's policy. Erie denied the claim on the ground that Larose's damages did not exceed the limits of the tortfeasor's liability coverage. Larose disagreed with this assessment and filed suit against Erie in Florida, seeking to recover the claimed UIM benefits.

In response to Larose's complaint, Erie moved to dismiss, arguing that the Florida court did not have personal jurisdiction over it. In support of its motion, Erie filed a sworn affidavit asserting that its conduct in issuing a Wisconsin automobile insurance policy to a Wisconsin insured did not satisfy any of the subsections of Florida's long-arm statute, section 48.193, Florida Statutes (2013)

, and that it did not have sufficient minimum contacts with Florida to satisfy constitutional due process.

Faced with this motion and the allegations of Erie's sworn affidavit, Larose was required to establish two criteria to pursue his action against Erie in Florida. First, Larose was obligated to produce evidence that Erie engaged in conduct that fell within one of the provisions of section 48.193

; and second, Larose was obligated to show that Erie had sufficient minimum contacts with Florida so that subjecting it to the jurisdiction of the Florida courts would not offend constitutional due process. See

Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989) (outlining the required criteria for establishing personal jurisdiction over an out-of-state defendant). Failure to prove either one of these criteria would be fatal to Larose's jurisdictional claim. Id.

To meet his evidentiary burden, Larose filed a sworn memorandum of law arguing that Erie's failure to pay UIM benefits to him in Florida constituted a breach of the contract occurring in Florida, which would provide long-arm jurisdiction under section 48.193(1)(a)(7)

. Larose also argued that the provision in Erie's policy providing coverage for accidents that occurred anywhere in the United States operated, in essence, as its consent to jurisdiction in all states for purposes of constitutional due process. After an extended hearing on the matter, the trial court denied Erie's motion to dismiss, which ruling it now appeals. In the appeal, Erie once again contends that Larose failed to prove both of the required criteria for establishing jurisdiction over it in Florida.

Long–Arm Statute

Addressing first Erie's argument that Larose did not establish that Erie's conduct fell within any of the provisions of section 48.193

, we must disagree. Section 48.193 sets forth requirements for both specific and general jurisdiction, either of which is sufficient to satisfy the first step of long-arm jurisdiction analysis. Larose did not attempt to establish general jurisdiction, which would require proof that Erie had “engaged in substantial and not isolated activity within this state.” § 48.193(2). Instead, he relied on specific jurisdiction, which requires proof of a causal connection between the plaintiff's claim and the defendant's activity in the state. See Walden v. Fiore, ––– U.S. ––––, –––– n. 6, 134 S.Ct. 1115, 1121 n. 6, 188 L.Ed.2d 12 (2014)

(“ ‘Specific’ ” or ‘case-linked’ jurisdiction ‘depends on an “affiliatio[n] between the forum and the underlying controversy” ’ (i.e., an ‘activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation.’)” (alteration in original) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011) )). Section 48.193(1) lists the various ways in which this causal connection can be established and includes subsection 48.193(1)(a)(7), which provides specific jurisdiction when a defendant “breach[es] a contract in this state by failing to perform acts required by the contract to be performed in this state. ” (Emphasis added.) Hence, the determinative issue on this point in this case is whether Erie's refusal to pay UIM benefits to Larose in Florida constituted the failure to perform an act in Florida that was required by the contract to be performed in Florida.⁴

As an initial matter, we agree with Erie that nothing in the plain language of the policy specifically requires it to perform any act in Florida. We also agree that Larose's mere presence in Florida, without more, is insufficient to establish jurisdiction under section 48.193(1)(a)(7)

. See, e.g.,

Royal Acquisitions 001, LLC v. Ansur Am. Ins. Co., No. 14–20914–Civ., 2015 WL 1437689, at *3 (S.D.Fla. Mar. 27, 2015) (holding that foreign insurer that insured Georgia property owned by a Florida LLC was not subject to long-arm jurisdiction under section 48.193(1)(a)(7) simply because the insured was in Florida); see also

Posner v. Essex Ins. Co., Ltd., 178 F.3d 1209, 1218 (11th Cir.1999) (holding that “a contractual duty to tender performance to a Florida resident is not in itself sufficient to satisfy” section 48.193(1)(a)(7) ; instead, there must be a duty to perform an act in Florida) (emphasis added). But those two facts do not mean, ipso facto, that Larose failed to prove jurisdiction under section 48.193(1)(a)(7). Instead, the relevant question is whether payment of the claimed first-party policy benefits is due to Larose in Florida when the contract is silent as to the place of payment.

To answer this question, we note that the general rule is that when no place of performance is specified in an insurance policy, the insurer must make payment in the state where the insured resides. 2 Couch on Insurance § 24.13 (3d ed.2016). This general rule is the law in both Florida and Wisconsin. See, e.g., Venetian Salami Co., 554 So.2d at 502

(quoting Osborn v. Univ. Soc'y, Inc., 378 So.2d 873, 874 (Fla. 2d DCA 1979) (holding that Florida law provides that the debtor must seek the creditor and so a breach of contract based on failure to pay occurs where the creditor is domiciled)); Best Price Plumbing, Inc. v. Erie Ins. Exch., 340 Wis.2d 307, 814 N.W.2d 419, 423–24 (2012) (quoting State v. Kenosha Home Tel. Co., 158 Wis. 371, 148 N.W. 877, 878 (1914) (holding that when a contract for the payment of money is silent as to the place of payment, the law will imply that payment is to be made at the residence, office, or place of business of the creditor)). And under that general rule, Erie's refusal to pay first-party policy benefits to Larose, if such conduct is found to constitute a breach of the policy, would be a breach of the contract in Florida— where Larose resides—that would trigger long-arm jurisdiction under section 48.193(1)(a)(7)

.

Erie's argument that the debtor's place of business—rather than the creditor's place of residence—is the place of payment arises from a misreading or misapplication of authority. Erie's argument is based on language from Couch on Insurance relating to the place of the accident not being the place of payment. And while this is true, it ignores the precedent which holds that it is the location where payment is due rather than the location of the insurer that is the determinative factor.

Further, no reading of Best Price Plumbing could reach the conclusion advocated by Erie that the Wisconsin court held that the place of payment was the insurer's location. The dispute in that case centered on whether payment under an insurance policy for property repairs was properly sent to the insured rather than to the contractor that made the repairs. 814 N.W.2d at 423

. Thus, the question there was whether the proper place of payment was the insured's location or the contractor's location. The court noted the general rule that when a contract is silent as to the place of payment, payment is usually due at the place of business of the...