State Ex Rel. Travelers' Indem. Co. v. Knott

• Decision Date: 02 March 1934
• Citation: 153 So. 304,114 Fla. 820
• Court: Florida Supreme Court
• Parties: STATE ex rel. TRAVELERS' INDEMNITY CO. v. KNOTT, Insurance Com'r.

153 So. 304

114 Fla. 820

STATE ex rel. TRAVELERS' INDEMNITY CO. v. KNOTT, Insurance Com'r.

Florida Supreme Court

March 2, 1934

En Banc.

Original mandamus proceeding by the State, on the relation of the Travelers' Indemnity Company, against W. V. Knott, as Insurance Commissioner of the State of Florida.

Peremptory writ granted.

COUNSEL Francis P. Whitehair and Hull, Landis &amp Whitehair, all of De Land, for relator.

Cary D. Landis, Atty. Gen., and H. E. Carter and Robert J. Pleus Asst. Attys. Gen., for respondent.

Waller & Pepper, of Tallahassee, amicus curiae.

OPINION

BUFORD Justice.

The Travelers' Indemnity Company proposed to issue a policy of indemnity insurance containing the coverage clauses known as clauses A and B, in the following language:

'(A) To pay on behalf of the assured all sums which the assured shall become obligated to pay by reason of the liability imposed upon him by law for damages because of bodily injury, including death at any time resulting therefrom, accidentally sustained by any person or persons and caused by the ownership, maintenance or use of the automobile; and

'(B) To pay on behalf of the assured all sums which the assured shall become obligated to pay by reason of the liability imposed upon him by law for damages because of accidental injury to or destruction of property, including the loss of use thereof, caused by the ownership, maintenance or use of the automobile.'

The state treasurer as ex officio insurance commissioner declined to permit the insurance company to issue the policy, without the insurance company would first deposit with the state treasurer as ex officio insurance commissioner bonds of the United States or bonds of some state of the United States which amount according to their market value to $75,000 in compliance with the provisions of section 4339, Rev. Gen. St. of Fla., as amended by chapter 12321,§ 4, Acts of 1927, appearing as section 6302, C. G. L. of Fla.

Relator instituted original mandamus proceedings in this court to coerce the state treasurer, as ex officio insurance commissioner, to permit the respondent to issue the policy without making the deposit above referred to.

Section 4329, Rev. Gen. St., section 6292, Comp. Gen. Laws, provides as follows:

'No surety company, whether incorporated under the laws of this State or of any other State or Country, nor its agents, either directly or indirectly, shall transact any surety business in this State, or procure or secure applications for suretyship upon the bonds of any person or corporation, unless such company has first obtained a certificate of authority from the State Treasurer, and before obtaining such certificate such company shall furnish the State Treasurer with a statement, under the oath of the president and secretary of the company, which statement shall conform to the form of statement from time to time adopted by the National Convention of Insurance Commissioners and contain such other information as the State Treasurer shall reasonably prescribe.'

Section 6302, Comp. Gen. Laws, being section 4 of chapter 12321, Acts of 1927, provides in part as follows:

'Companies herein described, chartered by this State, or other States or foreign Governments, now doing business in this State, or hereafter doing business in this State, which offer or undertake to become surety upon any bond, or surety contract, before being accepted as surety thereon, shall be required to deposit with the Treasurer of this State bonds of the United States, or bonds of any State of the United States, and which amount according to their market value, to seventy-five thousand dollars which bonds shall be receipted for by the State Treasurer and held or deposited by him.' The remainder of this section has no application to this case.

Now, the sole question for us to determine is whether or not under the provisions of the sections of the statute last quoted the relator must deposit bonds of the value of $75,000 before it could lawfully issue the policy which it seeks to issue.

If this is a surety bond or surety contract, then the relator must deposit this amount of bonds with the state treasurer; but if it is not a surety bond or a surety contract, it is not required to do so, it having complied with other insurance laws of the state applicable to that sort of business which it transacts.

Respondent relies with confidence on the opinion and judgment of this court in the case of State ex rel. Union Indemnity Co. v. Knott, State Treasurer, in which opinion was filed May 25, 1932, reported in 105 Fla. 569, 107 Fla. 770, 143 So. 221, 143 So. 296.

It must be borne in mind that the opinion in that case was written with the facts in that case in view. It was shown there, as is stated in the opinion, that New York Indemnity Company had deposited bonds in the value of $75,000 with the state treasurer as required by section 6302, Comp. Gen. Laws of Fla., and that pursuant to the depositing of the bonds it had written a certain surety contract on the application of Florida Motor Lines, and by that contract it assumed certain liabilities which had been later assumed by Union Indemnity Company. The contract of New York Indemnity Company was not all included in the written policy, but a part of its contract and that part which made it a surety contract arose from statute. Chapter 14764, Acts of 1931, in section 6 thereof, provides in part:

'The Commission shall, at the time of granting a certificate or permit to any auto transportation company for transporting persons or property, fix and determine the amount of the bond to be given by the applicant for the protection, in case of passenger vehicle of the passengers and baggage carried in said vehicle and of the public against injury caused by negligence of the person or corporation operating the said vehicle, and in case of the vehicle transporting freight, for the protection of the said freight so carried if in common carriage, and of the public against injuries received through negligence of the person or corporation operating said freight carrying vehicle; and it shall be the duty of the applicant to procure and file with the Commission the said bond for liability and property damage, including loss of baggage when same has...