United Services Auto. Ass'n v. Gillen
| Decision Date | 06 July 1973 |
| Docket Number | No. 71--1096,71--1096 |
| Citation | 280 So.2d 52 |
| Parties | UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellant, v. Marie GILLEN, Individually, et al., Appellees. |
| Court | Florida District Court of Appeals |
W. Marvin Hardy, III, of Gurney, Gurney & Handley, P.A., Orlando, for appellant.
Terrell Griffin, of the Law Offices of Russell Troutman, P.A., Winter Park, for appellees.
Appellant insurer appeals from a declaratory judgment holding that the 'other insurance' clause of the uninsured motorist coverage of its policy (delivered to its insured in New Hampshire while a resident of that state) is void as against the public policy of Florida.
On December 16, 1969, appellant delivered to Mr. and Mrs. Gillen, residents of the State of New Hampshire, two automobile liability insurance policies, No. 29 describing a Karmann Ghia and No. 28 a Volkswagen bus. Both policies provided for uninsured motorist coverage of $10,000 per person and $20,000 per accident, with a separate premium paid for this coverage on each policy. The policy period was for one year.
In July, 1970, the Gillens moved to Florida, notifying appellant. In August, 1970, Mr. Gillen sold the Volkswagen bus on which Policy No. 28 was written and bought a 1969 Volkswagen Squareback. He notified appellant, which issued Policy No. 31 covering the Volkswagen Squareback, and cancelled Policy No. 28. On September 7, 1970, the Gillens, while riding in the Volkswagen Squareback, were involved in a serious accident in Orange County, Florida, in which Mr. Gillen was killed and Mrs. Gillen seriously injured. The automobile collision was due solely to the negligence of an uninsured motorist.
Mrs. Gillen and the personal representative of her husband's estate joined in bringing this suit for declaratory judgment against the insurer after the latter took the position that the 'other insurance' clause of Policy No. 29 1 (insuring the Karmann Ghia) was applicable because similar insurance coverage was available to the insureds under Policy No. 31 (insuring the Volkswagen Squareback). The trial court held that because at the time of the accident the Gillens were residents of Florida, and the cars were licensed and garaged in Florida, all of which was known to the insurer, the uninsured motorist coverage of Policy No. 29 was subject to the law of Florida (which holds such 'other insurance' clauses in uninsured motorist coverage are void as contrary to public policy 2) rather than to the law of New Hampshire (which recognizes the 'other uninsurance' clauses as valid and enforceable 3). The final judgment determined the plaintiffs entitled to the benefits of the uninsured motorists coverage on both policies. 4 It also awarded attorney's fees.
The question is whether Policy No. 29 is to be governed by the law of Florida, where the accident occurred and where the insureds resided at the time of the accident, or whether it is to be governed by the law of New Hampshire where the policy was delivered and where the insured resided at the time of issuance of the policy.
Both parties to this appeal refer to the 'center of gravity' or 'grouping of contacts' test of choosing the state law that should be applied, and both cite and rely upon Section 188, Restatement of the Law, Second, Conflicts of Law (1969). They disagree, however, as to whether the contacts which are to be taken into account are those which existed at the time of entering in the contract, or those which existed at the time of the accident. If the former, New Hampshire has the more significant relationship to the transaction and the parties. If the latter, Florida has the more significant relationship to the transaction and the parties.
We think that the contract should be governed by the laws of the state in which the policy was delivered and in which the insured resided at the time of delivery. This would be the State of New Hampshire. The rights and obligations of the respective parties under the contract, once entered into, should not vary or fluctuate from state to state depending upon fortuitous circumstances of where an accident might occur, or the arbitrary decision of where the insured might elect to thereafter reside. In the case of Aetna Casualty & Surety Co. v. Enright, Fla.App.1972, 258 So.2d 472, the Third District Court of Appeal, in a somewhat similar factual situation reached a similar conclusion, and the opinion by Judge Pearson sets forth the general principles of law which would be applicable and which we need not repeat here. While the insured in the Enright case had not become a Florida resident, as distinguished from the insureds in the instant case, we feel that this fact alone should not cause us to reach a conclusion contrary to that reached in the Enright case.
Appellant also complains of the award of attorney's fees to the insureds' attorneys. The evidence shows and the court found that it was necessary for the insureds to bring this suit to obtain the benefits under Policy No. 31, and thus it was proper to award an attorney's fee to plaintiffs' counsel. However, in determining the amount to be awarded, the court may have taken into consideration a successful recovery under Policy No. 29. Upon remand the court is directed to reconsider the award of attorney's fees in light of our decision as to Policy No. 29, and award to plaintiffs reasonable attorney's fees as the circumstances of the case may require.
The judgment is reversed and this cause remanded for further proceedings consistent herewith.
Reversed and remanded.
In my humble opinion, the majority decision is in direct conflict with the public policy of Florida regarding 'other insurance' provisions, as enunciated in Sellers v. United States Fidelity & Guaranty Co., Fla.1966, 185 So.2d 689, and reaffirmed in Allstate Insurance Co. v. Dairyland Insurance Co., Fla.1972, 271 So.2d 457. 1 In Allstate, supra, the Supreme Court of Florida, in restating what it held in Sellers, supra, observed, 271 So.2d at p. 458:
'' (Emphasis added.)
A well established limitation upon the recognition and enforcement of foreign laws under the doctrine of comity is the principle that where the enforcement of the foreign law would contravene the public policy of the forum, the foreign law will not be enforced; the rule of comity does not require the forum state to give effect to a foreign law where to do so would prejudice the state's own rights or the rights of its citizens. 16 Am.Jur. Conflict of Laws § 6; 6 Fla.Jur. Conflict of Laws, § 4. See also Hartford Accident and Indemnity Co. v. Thomasville, 1930, 100 Fla. 748, 130 So. 7.
To apply the law of New Hampshire which recognizes the 'other insurance' clauses as valid and enforceable would, in my opinion, do violence to the positive decisional law of Florida which has declared such 'other insurance' clauses as void and unenforceable.
The fact that the insureds, in the case sub judice, were Florida residents not only distinguishes the instant situation from that which was present in Aetna Casualty & Surety Co. v. Enright, Fla.App.1972, 258 So.2d 472, but serves to underscore the limitations on the rule of comity where citizens of the forum are concerned. See also Trammel v. Brotherhood of Locomotive Firemen, etc., 1953, 126 Mont. 400, 253 P.2d 329.
Furthermore, the circumstances of the instant case present a stronger argument militating against the recognition of 'other insurance' clauses than was present in Sellers and Allstate. In those cases the court was dealing with a question of the proration of claims between Different insurers. In the instant case we have the Same insurer on two separate policies. Cf. Government Employees Insurance Company v. Sweet, Fla.App.1966, 186 So.2d 95.
This distinction is quite vividly delineated in a recent decision rendered by the Supreme Court of a sister state. In United Services Automobile Association v. Dokter 1970, 86 Nev. 917, 478 P.2d 583, 584--585 (1970), the Supreme Court of Nevada held:
'The other insurance clause is not free of ambiguity when considered within the context of this case. Its purpose is twofold--to prorate the loss and to fix the limit thereof. Obviously, there is no purpose in proration unless the 'other insurance' was written by another company, since the provision is designed to preclude payment of a disproportionate amount of a loss shared with another company. Deterding v. State Farm...
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Gillen v. United Services Auto. Ass'n
...ADKINS, Chief Justice. By petition for writ of certiorari, we have for review a decision of the District Court of Appeal, Fourth District (280 So.2d 52), which allegedly conflicts with the decision of this Court in Sellers v. United States Fidelity & Guaranty Company, 185 So.2d 689 (Fla.196......