Orlando Candy Co. v. New Hampshire Fire Ins. Co.

• Decision Date: 10 July 1931
• Docket Number: No. 3222.,3222.
• Citation: 51 F.2d 392
• Parties: ORLANDO CANDY CO. v. NEW HAMPSHIRE FIRE INS. CO. OF MANCHESTER.
• Court: U.S. District Court — Southern District of Florida

51 F.2d 392 (1931)

ORLANDO CANDY CO. v. NEW HAMPSHIRE FIRE INS. CO. OF MANCHESTER.

No. 3222.

District Court, S. D. Florida.

July 10, 1931.

Frank J. Heintz, of Jacksonville, Fla., for the motion.

Cockrell & Cockrell, of Jacksonville, Fla., opposed.

STRUM, District Judge.

In an action at law upon a fire insurance policy, instituted in the state court and removed to this court, plaintiff moves to amend its declaration so as to properly claim attorney's fees pursuant to section 6220, Comp. Gen. Laws Fla. 1927. Defendant objects upon the ground that under the terms of the Florida statute such attorney's fees are not recoverable when judgment is rendered in a federal court.

The question presented is purely one of statutory construction, it having been held heretofore that the statute violates neither the due process nor the equal protection clause of the Constitution. Hartford Fire Ins. Co. v. Wilson & T. Fert Co. (C. C. A.) 4 F. (2d) 835; Tillis v. Liverpool, etc., Ins. Co., 46 Fla. 268, 35 So. 171, 110 Am. St. Rep. 89; U. S. Fire Ins. Co. v. Dickerson, 82 Fla. 442, 90 So. 613.

The statute provides in effect that upon the rendition of a judgment or decree "by any of the courts of this State" against any insurer and in favor of the beneficiary under any policy or contract of insurance, there shall be adjudged or decreed against such insurer and in favor of the beneficiary a reasonable sum as fees or compensation for the beneficiary's attorneys prosecuting the suit in which the recovery is had. Section 6220, Comp. Gen. Laws Fla. 1927.

Defendant's contention is that the statute by its terms is limited to judgments or decrees rendered "by any of the courts of this state," that is, the state of Florida; and that the statute, therefore, is inapplicable to judgments rendered by federal courts.

No case has been cited specifically construing the phrase above quoted in a statute of this character. Substantially the same phrase has been construed by the Supreme Court (David Lupton's Sons Co. v. Automobile Club, 225 U. S. 489, 32 S. Ct. 711, 56 L. Ed. 1177, Ann. Cas. 1914A, 699) and by the Court of Appeals of the Fifth Circuit (Industrial Finance Corp. v. Community Finance Corp., 294 F. 870), as found in statutes relating to foreign corporations, and providing in effect that no action shall be maintained "in the courts of the state" by any foreign corporation as plaintiff until such corporation shall have qualified itself to do business in that state pursuant to the statutes of such state. In the cases last cited it was held that such a statute was inapplicable to actions in federal courts. That is necessarily true. Obviously, it is beyond the power of a state Legislature to impose an added condition or limitation upon the exercise by the federal courts of the powers committed to them by federal statutes, nor to impose upon suitors in those courts an added qualification not prescribed by federal statute.

The statute here under consideration, however, is of a vitally different character. The statute imposes a liability for judicially determined delinquency on the part of an insurer in the payment of its obligation. U. S. Fire Ins. Co. v. Dickerson, supra. A corresponding right of recovery necessarily arises in favor of the beneficiary. The right thus created in favor of the beneficiary is a substantive right, and a remedy for its enforcement in the state courts is clearly provided. The question here is whether or not the statutory liability and the corresponding right in the beneficiary may be enforced in a court of the United States.

By executing the policy, the insurance company assumes the statutory liability and acquiesces in the corresponding right created in the beneficiary. The statute in effect becomes a part of the contract, because the parties contract subject to the terms of the statute. The liability imposed by the statute upon the insurer is in effect an incident of the insurer's wrongful refusal to pay, not a mere procedural incident to the entry of the judgment.

In imposing the statutory liability, from which flows the substantive right under consideration, the Florida Legislature used the most comprehensive and expansive language it could, with propriety, employ. It would have added nothing to the effect of the statute had the Legislature added after the phrase in question "or by any court of the United States." Such a provision would have been incongruous.

The parties having contracted with reference to the statute, the substantive right clearly exists in a prevailing plaintiff to recover reasonable attorney's fees, and...