O'Malley v. Florida Ins. Guaranty Ass'n

• Decision Date: 16 December 1971
• Docket Number: No. 41732,41732
• Parties: Thomas D. O'MALLEY, etc., Appellant, v. The FLORIDA INSURANCE GUARANTY ASSOCIATION, Inc., etc., et al., Appellee. The FLORIDA INSURANCE GUARANTY ASSOCIATION, Inc., etc., Appellant, v. Thomas D. O'MALLEY, etc., et al., Appellee.
• Court: Florida Supreme Court

Page 9

257 So.2d 9

Thomas D. O'MALLEY, etc., Appellant, v. The FLORIDA INSURANCE GUARANTY ASSOCIATION, Inc., etc., et al., Appellee.

The FLORIDA INSURANCE GUARANTY ASSOCIATION, Inc., etc., Appellant, v. Thomas D. O'MALLEY, etc., et al., Appellee.

No. 41732.

Supreme Court of Florida.

Dec. 16, 1971.

Ciravolo & Feldman, Miami, and Robert E. Gibson, Tallahassee, for Thomas D. O'Malley, etc. and others.

Raymond Ehrlich, Jacksonville, of Mathews, Osborne & Ehrlich, for The Florida Insurance Guaranty Association, Inc., etc.

ERVIN, Justice.

We here consider an appeal from a decision of the Circuit Court of Leon County, Florida, invalidating Ch. 70--20, Laws of Florida 1970, which appears as F.S. Sections 631.50 to 631.67 F.S.A., inclusive, 1970 Supplement to the Florida Statutes, 1969. Ch. 70--20 created the Florida Insurance Guaranty Association, Inc., a non-profit corporation, as the mechanism for the payment of covered claims under certain classes of insurance policies of insurers which have become insolvent.

To raise the funds necessary to administer and pay covered claims and other expenses, the statute provides for an assessment on certain casualty insurers doing business in the state and selling the class of insurance policies involved.

First American Insurance Company, pursuant to order of the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, dated February 23, 1971, was adjudicated insolvent and the Insurance Commissioner of Florida as Receiver was directed to liquidate the assets of said insurer.

Pursuant to the aforesaid adjudication, and the provisions of Chapter 70--20, an assessment was made on all insurers doing business in Florida and writing the classes of business written by the said First American Insurance Company.

Some affected insurers failed to pay the said assessment while others made payment alleging the unconstitutionality of the Act pursuant to which the assessment was made. A dispute arose between the Receiver and the Guaranty Association as to what constituted a covered claim as well as other questions involving the interpretation of the provisions of Chapter 70--20.

The failure of the insurers to pay the assessment and the dispute between the Receiver and the Guaranty Association culminated in an action for declaratory judgment being filed by both parties.

Thomas D. O'Malley, as Treasurer and ex-officio Insurance Commissioner of the State of Florida and as Receiver of First American Insurance Company, together with The Florida Insurance Guaranty Association, Inc., a non-profit corporation, as appellants, on appeal here seek reversal of the Circuit Court judgment invalidating Ch. 70--20.

We reverse for the reasons hereinafter set forth.

The Circuit Court held Ch. 70--20 unconstitutional for several reasons, first, because Section 11(a)(12) of Article III of the State Constitution, F.S.A., provides there shall be no special law or general law of local application pertaining to a private corporation or granting any privilege to a private corporation.

We agree with appellants that Florida Insurance Guaranty Association, Inc., a non-profit corporation, created pursuant to Ch. 70--20, is not a special private corporation within the meaning of the above-referred to constitutional prohibition. It is a public corporation of statewide authority created for public purposes relevantly connected with the administration of government. Compare Forbes Pioneer Boat Line v. Board of Com'rs. (1919) 77 Fla. 742, 82 So. 346, and 8200 Realty Corporation v. Lindsay, Opinion of Court of Appeals, State of New York (1970) New York Law Journal, Volume 163--No. 127, July 2, 1970, p. 1.

Private corporations are those which have no official duties or concern with the affairs of government, are voluntarily organized and are not bound to perform any act solely for government benefit, but the primary object of which is the personal emolument of its stockholders. See McKim v. Odum (Md.) 3 Bland. 407, 418. Duval County v. Charleston Lumber Co., 45 Fla. 256, 33 So. 531.

Examples of public corporations in Florida are: the rural electrical cooperatives, city housing authorities, The Inter-American Cultural and Trade Center Authority, the Soil and Water Conservation Districts, and the Jacksonville Expressway Authority. Their business ordinarily is stipulated by the Legislature to fill a public need without private profit to any organizers or stockholders. Their function is to promote the public welfare and often they implement governmental regulations within the state's police power. In a word, they are organized for the benefit of the public.

The Guaranty Association considered here falls within the category just described. It is a public or quasi-public corporation. It is a legislatively declared 'mechanism' to aid and benefit numerous citizens many of whom comply with state requirements in obtaining casualty and other insurance coverage for themselves and have suffered loss of the insurance protection they obtained because of the insolvency of their insurors.

Chapter 70--20 by reason of its described nature and purpose is a general law of statewide application in its operative effects and is not a local or special law. Compare State ex rel. Buford v. Shepard, 84 Fla. 206, 93 So. 667; State ex rel. Landis v. Harris, 120 Fla. 555, 163 So. 237; and Milk Commission v. Dade County Dairies, 145 Fla. 579, 200 So. 83. Being a general law for a statewide purpose although under it a public corporation has been created and functions as such, notice of intention to seek its enactment was not required by Sections 10 and 11(b) of Article III of the State Constitution since it has general and not limited application affecting only a particular locality.

The Circuit Court appears to have found Ch. 70--20 violative of several other specific provisions of the State Constitution, i.e. (1) Section 4(d) and (e) of Article IV which provides the comptroller as the state's fiscal officer shall settle and approve accounts against the state; and the treasurer shall keep all state funds and disburse the same only upon order of the comptroller countersigned by the governor; (2) Section 1(c) and (d) of Article VII which provides no money shall be drawn from the treasury except in pursuance of appropriations made by law and that provision shall be made by law for raising sufficient revenue to defray the expenses of the state for each fiscal period; (3) Section 11 of Article VII which prohibits the issuance of state bonds pledging the...