This appeal presents a question of the application of the public policy of the State of Florida. The trial court held that the public policy of the State of Florida as expressed by Florida statute voided the "other insurance" or "excess coverage" clause contained in an uninsured motorist provision of an automobile insurance policy issued in New York to a New York resident when the enforcement of the uninsured motorist provision was to be in Florida. We hold that the trial court incorrectly applied the public policy of the State of Florida and we reverse.
The plaintiff-appellant insurance company commenced suit by filing a complaint for declaratory judgment in the trial court. The complaint alleged that the insured defendant-appellee had made a claim for arbitration under the uninsured motorist provision of appellant company's policy and that the company was in no way indebted to the appellee under the terms of the policy. The court entered its final declaratory judgment ruling for the insured, holding that the "other insurance" clause was contrary to the public policy of the State of Florida.
The appellee was injured in an automobile accident in Dade County, Florida, on February 24, 1970. At the time of the accident appellee was operating an automobile owned by one Ruth Lehman. The operator of the other car involved in the accident was not protected by an automobile liability insurance policy. Ruth Lehman and defendant were each covered by automobile liability policies, which provided uninsured motorist coverage. Appellee made a claim under Ruth Lehman's policy and settled said claim under the uninsured motorist provision for the policy limits. Appellee then sought further recovery by processing a claim under the uninsured motorist provision of his own policy issued by the appellant. Appellant relied upon the following clause contained in the uninsured motorist provision to deny further recovery.
The appellee and Ruth Lehman are both permanent residents of the State of New York; their policies of insurance were issued and purchased in the State of New York and each policy provided identical limits of coverage. The appellant and the appellee agree and the trial court noted in its opinion that the law would ordinarily require the application of New York law to the disputed contract insofar as that contract expresses the extent of the liability of the insurance company. See Northwestern National Casualty Co. v. McNulty, 307 F.2d 432 (5th Cir.1962); Century Indemnity Co. v. United States Casualty Co., 306 F.2d 956 (5th Cir.1962); Brown v. Case, 80 Fla. 703, 86 So. 684 (1920); Confederation Life Association v. Ugalde, Fla.App. 1963, 151 So.2d 315.
The trial court held:
The public policy of the State of Florida relative to uninsured motorist coverage is initially expressed in a statute:
In addition, this public policy has been followed in the Florida case law. It is expressed by the Supreme Court of Florida in Sellers v. United States Fidelity and Guaranty Co., Fla. 1966, 185 So.2d 689,
Furthermore, in Travelers Indemnity Co. v. Powell, Fla.App. 1968, 206 So.2d 244, the District Court of Appeal, First District, expressed this public policy of the State of Florida as applicable to that case as follows:
The trial judge concluded that these expressions of public policy applied in the instant case where the insurance policy in question was issued in New York to a New York resident. We think that by so holding he has improperly extended statutory expressions of public policy regulating insurance policies issued in Florida to the point where he has overruled the general law of contracts. The expressions of the legislature in the statute clearly apply only to contracts issued in the State of Florida. In both Sellers and Travelers the policy against limiting uninsured motorist coverage was applied to policies issued to Florida residents.
The question then is whether or not the operation by a nonresident of an automobile on Florida highways coupled with a subsequent attempt to enforce a foreign insurance contract in the courts of Florida constitutes a sufficient basis to activate the state policy regarding Florida contracts. We hold that it does not and that the trial court mistakenly applied the public policy expressed in the Sellers and Travelers Indemnity cases.
In the past, the Florida courts have applied New York law to contracts of insurance, including automobile liability insurance, where the contract of insurance was written in New York for a resident of New York, but an action upon that contract was instituted in a Florida court. In Quarty v. Insurance Company of North America, Fla.App. 1971, 244 So.2d 181, the court held that where a homeowners policy was issued in New York to a New York resident by a New York insurer, where the premiums were paid in New York and the property was located in New York and where the loss by burglary occurred in New York, the mere fact that the insured moved and became a resident of Florida within twelve months after the loss did not give Florida sufficient contact with the transaction and the parties to justify the application of Florida Statute § 95.03, F.S.A., voiding any contractual provision fixing the time in which suits may be instituted at a period less than that provided by the Statute of Limitations. The fact that the insurance carrier was licensed to do business in Florida was deemed irrelevant when the action was based upon a contract
In a more significant case, this court determined in State-Wide Insurance Company v. Flaks, Fla.App. 1970, 233 So.2d 400, that when a liability indemnity automobile policy had been issued in New York and the insurer was obligated to pay all interest accruing after entry of judgment until the insurer had paid or tendered or deposited in court such part of the judgment as did not exceed the limits of the policy, the insurer was obligated to pay interest only on the policy limits plus the costs and it was not liable for interest on the full amount of a damage suit judgment. In that case a judgment for $150,000.00 was entered against the insured of State-Wide Insurance Company. The insured-judgment debtor was a resident of New York and was insured by State-Wide under a policy issued to him in New York. The circuit court in entering judgment in favor of the judgment creditor determined that State-Wide was obligated for interest upon the entire amount of the judgment. In reversing, this court stated:
The court then agreed in that case with the general principle that matters bearing upon the execution, validity, interpretation, and obligations of contracts are determined by the laws of the place where the contract is made, whereas matters connected with performance are regulated by the law of the place where the contract is to be performed; matters relating to procedure are dependent upon the law of the forum. See Confederation Life Association v. Ugalde, supra. In Herron v. Passailaigue, 92 Fla. 818, 110 So. 539 (1926), the court stated that a court may not depart from the rules of comity, except in certain cases, for the purpose of protection of Florida citizens or for the purpose of enforcing some paramount rule of public policy. In this case, no Florida citizen is involved nor is the public policy of this State as expressed in its statutes and interpreted by its courts altered in any respect by a reversal of the trial court's decision.
Reversed and remanded for the entry of judgment in accordance with the views expressed above.
Reversed and remanded.