# Appendix — Clay v. Sun Insurance Office Ltd. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0255%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1959 - **Citation:** 361 U.S. 874 ## Text Al APPENDIX “A”. / Section 95.03, Florida Statutes, 1957. “Stipulations in contract shortening period of limitation illegal.—-All pro- visions and stipulations contained in any contract what- ever entered into after May 26, 1913, fixing the period of time in which suits may be instituted under any such con- tract, or upon any matter growing out of the provisions of any such contract, at a period of time less than that pro- vided by the statute of limitations of this state, are hereby declared to be contrary, to the public policy of this state, and to be illegal and void. No court in this state shall give effect to any provision or stipulation of the character mentioned in this section. * History.—Secs. 1, 2, Ch. 6465, 1913; R.G.S. 2391; C.G.L. 4651.” 5 | : APPENDIX “B”. .. ss / Tl. Rev. Stat. 1957, Ch.. 73, Section 837. “(1) After the effective date of this code no policy of life insurance shall be issued or delivered in this state if it contain any of the following provisions: (a) A provision limiting the time within. which any action at law or in equity may be commenced to less than three vears after the cause of action shal] accrue.” ~~ ~ APPENDIX “C” Opinion of United States Court of Appeals for the / ? Fifth Circuit rendered April 8, 1959. | “4 A2 : IN THE | eieiatit ads « THE FIFTH CIRCUIT. No. 17525 SUN INSURANCE OFFICE LIMITED, j Appellant, JOHN \CLAY _ Appe aé Appeal from the United States District Court for the Southern District of Florida. (April 8, 1959.) Aa _ Before RIVES and TUTTLE, Circuit Judges and “SIMPSON, District Judge. _ TUTTLE, Circuit Judge: This is a suit on a personal property floater policy. «It was instituted in the United States District Court for the Southern District of Florida by the insured, John Ciay. A jury awarded recovery in the total amount of $6,300.00s and judgment was en- -~ tered accordingly. The insurer appeals, contending the district court erred in holding that the stipulation in the a A A3 ‘policy which forbade suit unless it was instituted within twelve months next after discovery of the loss' was rendered void and unenforceable. by Florida Revised Statute 95.03 (1957), which reads as follows: + ° “Stipulations in contract shortening period of limitation illegal.—All provisions and stipulations con- tained in any contract whatever entered into after May 26, 1913 fixing the period of time f"which suits may be instityted under any sueh contract, or upon .. any matter growing:out of the provisionstof any such tontract at a period of time less thay that provided by the statute of limitations of “this ‘state, are hereby declared to be contrary to the public policy of this state, ~ and to be illegal and void. Né’court in this state shall give effect «to any apt 00 or stipulation of the character mentioned in thi? section.” We agree with appellant’s contention as to this defense, and therefore we do not reach its other contentions. The policy was issued and delivered. to appéllee ori April 22, 1952, in Chicago, Illinois. At that ‘time appellee was a citizen of.and resided in the state of Illinois. He paid the premium in a lump sum in-Chicago when he re- ceived™the policy. Subsequently, in July 1952, appellee moved to Florida. He purchased a ranch near Lake Harbor,.. Florida, in July or August 1952 and became a resident of Florida from that time ‘on. In December, 1954' covery of any claim under this Policy shall be sustainable in any rourt of law or equity unless the same be commenced within twelve (12) months next after discovery by the Assurgd of the occurrence which gives rise to the claim. Provided, howeyer, that if by the laws of the state»within which this Policy is jssued such limitation is invalid, then any such claims shall be void nniess such jon, suit or proceeding be commenced within the shortest limit of time permitted by the laws of such state to be fixed herein.” . 1. “Suit Clause:-—No suit, action or proceeding for the re- — A4 and January, 1955, while he was living at the ranch near Lake Harbor, certain, of his insured personal property was destroyed by vandalism and other insured property was stolen. Appellee notified appellant of his losses on February 1, 1955. After investigating the claim, appellant denied liability on April 6, 1955. Suit was not instituted until May 20, 1957. ; Under the terms of the “Suit Clause” this suit was - barred-because of appellee’s failure to institute it within twelve months next after had discovered ‘the losses. According, to the law of UWinois, such a contractual pro- vision was and is valid and enforceable.” This insurance policy was issued and delivered in Illinois to a citizen of that state, and it was paid for by him while he was present and residing in that state. It insured the appellee’s personal property which was at that ‘time presumably in the same state. Accordirig to the law ° | of Florida, it was therefore an Illinois contract, the validity and interpretation of which would ordinarily be determined by the law of Illinois. Connor v. Elliott, 79 Fla. 513, 85 So. 164, cert. dismissed, 254 U.S. 665. Since the law of Illinois validates clauses limiting the time within h suit may be brought, this clause presents a good defense to appellee’s \ suit unless the Florida statute r rs in unenforceable in ‘\ any Florida court. ° 1a age: \ This presents. a question which. substantially affects - ‘he outcome of this suit,.and sinee fedegal jurisdiction in this case is based on diversity of citizenship, we must apply the law which the state courts of the forum would 2. Trichelle v. Sherman & Ellis, Inc., 259 Ill. App. 346: “Hartzell v. Maryland Cas. Co., 163 Ill..App. 221; see also Smith- tiurd Ann. St., Ch. 73, §9692(1)(k) (1958): cf Smith-Hurd Ann. Si... Ch. 73. 8§ 837(1)(a), 903(1)(a) (1958) * ( cue & A5 apply (Guaranty Trust Co. v. York, 326 U.S. 99; Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487), insofar as the state law does not violate the constitution of the ‘United States. See Sampson v. Channell, 1 Cir., 110 F.2d 754, cert. denied 310 U.S. 650. The wording of the Florida statute is quite general and broad, and it appears to apply-to all contracts, wherever made or performed, which happen to be sued upon in the courts of Florida. However, there are no reported instances where this statute has been applied under circumstances similar to those presénted here; and the jurisprudence of > Florida gives us reason to believe that the Florida state courts would construe it as being inapplicable under these circumstances. The following representative decisions demonstrate the Florida‘ cdurts’ tendency, based on their interpretation of the requirements of due process and their recognition of the general.common law rules of comity, to refrain from «attempting to apply Florida statutes or their own notiorig of public policy to foreign contracts: which. are valid where entered into: Connor v. Elligtt, supra; Sovereign Camp, Woodmen of the World v. Mixon,\79 Fla. 420, 84 So. 171; Equitable Life Assur. Soc. of U.S.A. v. McRee, 75 Fla. 257, 78 So. 22; American Fire Ins..Co. v. King Lumber & Mfg. Co., 74 Fla. 130, 77 So. 168, aff'd., 250 US. 2 _ ‘It is thus quite possible that the Florida state courts _.. would reach the same conclusion that the Kentucky court reached in Union Cent. Life Ins..Co. v. Barnes, 175 Ky. 364, 194 S.W. 339*—that the validity of a contractual ~provision Nimiting the time within which suit can be brought is to be~determined by the lex locus contractu 3. See also Brooks v. Travelers’ Protective Ass’n of America, K.D. N.Y., 47. F.2d 618. 4 0 Q vies 1- PAGE 9 >) FF —Z, | 2,7 Os UA oO i maar Pom pained Gow EAS air i 2, 7-8 2,8 a IN THE | : Supreme Court of the United States. ) October Term, 1959 No. 349 ‘~’ Joun Chay, a Petitioner, —Vi— é saa » Sun Insurance Orvice, Limirep, ; Respondent, Ox Peririon vor a Wrrr or Crrrrorant ro tik Usrrep Srates Courr’or Apreats ror tire Frerun Crrevir ——} -.-. PRE AS Oe Pe | BRIEF FOR RESPONDENT IN .OPPOSITION Question Presented Where a personal property floater insurance policy is issued and delivered in Hlinois to a citizen of Hlinois, and, thereafter, while the policy is in force, the insured becomes weizen of Florida and there sustains a loss, niust a fed- erat court sitting in Phorida uplrold a limitation contained in the contract with reypect tothe time to sue, which is valid under the law of Tiiineis. but would be invalid: if governed by Florida statute? Constitutional Provisions and Statutes Involved The constitutional provisions involved inthe case are as follows: 1. The due "process Clause ol the ourteogpy Amend ment to the Constitution of the United States which pro vides as follows: = “* * * nor shall any State Ueprive any person of life, liberty or. property, without due process of 4 aii ts bose 2. Article. T, Seetion 10, of the Constitution of the United States which provides: “No Statesshall © * * pass any * * * Law impairing the Obligation of Contracts " * 77°. 3. Article TV, Section 1, which provides as follows: “Koll Faith and Credit shall be given in each State tothe public Acts, Records, and judicial proceedings 7) ae ery bther State ** *”’ ; ; ESOS The statute involved in this case is. Section 95.03, Fiorida Statutes, 157, printed in Appendix ‘*A’’, on page Al of the Petition. “f Statement On April 22. 152 the respondent, Sun Insurance Office, Limited, «a foreign corporation, through its agent in Chi- cago, Ulineis, issued and delivered its policy of insurance to petitioner, John Clay. At the time of issuanee and delivery, John Clay was a citizen of the State of Illinois, residing at 4250 Lake Shore. Drive, Chicago, Illiteis (R. Sto 13, RL55).. The premium was paid in (see 60). The poliey on its face is designated ane 4 I}linois Personal Property Floater Policy (World Wide). Sometime later, petitioner came to Florida and Tived on his boat at various ports (RL 56), then moved to the Clewiston Inn, Clewiston, Florida’ (h. 37).° Finally, in May, PA, ho moved toa ranch near Lake Harbor, Florida (R. 18. 37). The Josses involved in this case oceurred in * g 3 | December, 1954 and January, 1955 on the aforesaid ranch and were caused by the deliberate acts of petitioner's wife CR. 84, 91-94), with whom he was having marital difficullies (R. 40). She burned his clothes CR. S84, 91-94) and inten- tionally slashed a valuable family portrait (ft. 28). Other property was deliberately withheld from: petitioner by his wife (Rt. 20, 21). The’ Personal Property Floater Policy insures ¢ **Personal property owned, used or worn by the person in whose name this ’oliey is issued and mem- bers of the Assured’s family of the same household, while in all situatious, exetept as’ hereinafter pro- vided.”’ Jn the subsequent divorce procecdings between peti- tioner and his wile, it developed that she had tried to sell somé of the personal property involved in this claim (R. d+), that there was a property settlement between peti- tioner and his wife but that the property whieh she tad taken was not Yreturned to the petitioner im connection therewith (R. 53-54), ; Petitioner notified the respondent of the loss on Febru- ary 1, 1955 (R. 54). Respondent investigated the claim under a reservation of rights and denied liability to the petitioner on April 6, 1955 (R.55). Suit on the policy was filed on May 20, 1957 (R. 2). 6 Respondent asserted two, defenses : 1. That the policy sucd on provides that no suit for the recovery of any claim shall be sustainable unless commenced within twelve tionths next after _ discovery by the assured of the occurrence whieh —~ gives rise to the claim, and that petitioner's. suit on May 20, 1957 was brought approximately two years and four months after petitioner had tull knowledse of his loss, ’ 4 2. That deliberate damage by petitioner's wife, and her taking property from him as an incident of marital difficuities, would not be insured under an all-risks polity issued in the name of petitioner but covering property owned, used or worn by him and members of his family of the same household. Petitioner brought suit in the United States District Court for the Southern District of Florida. Trial was held before a jury on-June 4, 1958. A verdiet was rendered in favor of petitioner (R. 14) on which ‘tinal judgment was filed June 14, 1958 (R. 14-15).) After denial of respond- ent’s motion for judgment wou obstante verediclo or in the alternative, for a new trial (R. 15-16), respondent ap- fealed to the United States Court of Appeals for the Fifth Cirenit. On April 8, 1959, opinion was rendered yevers-: ing the judgment of the Distriet Court and remanding the case for entry of judgment in -favor of respondent (Appendix, p. AIS of Petition), It was held that the pro-,, vision in the insurance policy limiting the time in which suit ean be brought, valid in Illinois where the contract Was made, is a substantial pr@pé@rty right, and that a vio- lation of the due process clause would result if the Florida invalidating statute were applied. Rehearing was denied by the United States Court of Appeals-on May 2, 1959-. (Appendix, p. ALS of Petition). es qr ARGUMENT | POINT I Review is not warranted because the decision be- low is clearly correct and is in full accord with ap- plicable decisions of this Court. The determination of the United States Court of Ap- peals in the'case at bar is in strict accord with Hartford Accident & Indemnity Co. v. Delta & Pine Land Co., 292 U.S. 143 (1934), and other decisions of this Court. There is no conflict between the Fifth Cireuit and any other cir- euit, nor does petitioner glaim that there is. Home Insur- ance Co. v. Dick, 281 U.S. 397 (1930), reaches the same result as the Hartford garyereat case, as does Holderness v. Hamilton Fire Ins. Co, of N. ¥., 54 F. Supp. 145 (S. D. Fla. 1944), all based on the same principle of law. Recog- nizing that all of the eases have reached the same conclu- sion, petitioner merely argues that J/ome Insurance Co. v Dick, supra, and Holderness v. Hamilton Fire Ins. Co., supra, lacked that degree of connection between the forum and the contract sued upon whieh is found in the ease at. bar. Even if that were so, no contlict warranting the granting of certiorari is suggested. The Delta & Pine Land Co. ease is directly in point and was so regarded by the United States Court of Appeals. The insured, then dojng business in Tennessee, procured a fidelity bond from the insurer through its ageney in Mem- phis, Tennessee. The insured later moved to Mississippi. ‘A loss was sustained in Mississippi, resulting from-thefts committed by one of the insured’s employees, said thetts having taken place after removal from Tennessee to Mis- sissippi. The policy outlawed any claim not presented to the insurer within 15 months after the termination of the suretyship.’ The Mississippi court held that provision to be in violation of Mississippi statute. Hartford Accident 6 & Iudemnigyy Conv Delta & Pine Land Co, 169° Miss. 150, 150 So. 205 (1938). On appeal ta@this Court judgment for the insured was Quanimously reversed on the ground that the contract provision, valid where made, could not be denied effect merely beeause the insured had removed to another state Where such provision is illegal, and the loss occurred in such other state. The case at bar presents an exact parallel. The policy is a World Wide Personal, Property Floater. Coverage is not restricted to the residence of the insured; none of the property insured dias a fixed \situs. A loss in Florida or in any other state. is covered whether the insured has ‘changed his residence or. not. Notice to the insurer of change of residence is not required and none was given. The provision requiring that suit be brought within 12 months after discovery is valid i Tilinvis where the pol- ‘iey Was issued, delivered and paid for and of which state petitioner was a resident at the time, To deprive respond- ent of a contract right would cogsiftute what this Court has disapproved of as an cnlargeawt of *the obligations of the parties to accord with every local statutory poliey solely upon the eround that one of the parties is its own citizen.’ Home Lasurance Co. v. Dick, supra at 407-408. _ Petitioner argues the inapplicability of Vlome Insurance Co.v. Dick, supra, and Holderness vy. Hanalty, Fire Ihs. Co. of NOY. supra. Inthe Home Lusurance casey although the suit was brought by a resident of Texas in the courts, of that state, the question was determined on the basis of deprivation of defendant's contract rights without due process of law if the Texas statute invalidating the limi- \ tation of time ror suit were applied. gdp the Molderness case, the principle would appearsto be the same, although it is true that the poliey there involved was issued in North Carolina to a North Carolina resident, insuring a building located im that state. The court held that a substantive defense under a contract valid’ where made cannot be de- , oa | 7 nied effeet under’ the law of the forum without violating the principles of due process, e Even where a Missouri resident procured a poliey in that state through the local office of the insurer loedted there, and thereafter made a loan on the poliey by mail under circumstances which the court hgld to be governed by New York law, a Missouri statute providing for non- forfeiture was denied application on consiituti@nal grounds. New York Life Iusurance Co, vy. Dodge, 246 U. Se 357 (1918). Under the law of New York, the forfeiture aris- ing from non-payment of the loan was valid. Under the Missouri statute applicable to policies issued by any life insurance company authorized tu do business in that state, it was invalid. The court said: ‘Under the laws of New York, where the parties made the loan agreement now before us, ‘it was valid; also ‘ it was one which the Missouri legislature could not destroy or prevent a citizen within its borders from ‘making beyond them by direet inhibition; and apply- ing the principles accepted and enforced in New York L. Ins. Co. v. Head, we think thesnecessary conclusion is that such a contract could not be indirectly brought into subjection to statutes, of the state and rendered ineffective through a license authorizing the insurance company there to do business. As construed and ap- plied by the Springfield court of appeals? section 7897 transcends the power of the state. To hold otherwise would permit destruction of the right—often of great value—tfreely to, borrow money tpon a poliey from ‘the issuing company at iis home office, and would, moreover, sanction the impairment of that liberty of contract guaranteed to all by the Fourteenth Amiend- ment.’’? 246 U.S. at 876-77. Although the United States Court of Appeals for the ‘Sth Cireuit rested its conclusion in the case at bar on -the due process ground and considered it unnecessary to decide whether the Florigy statute would vidlate the full faith and credit or the contract clauses of the Constitution, it » , % | ea ¢ s commented that the Dick and Della & Pine Laud decisions have been cited many fimes and never auestion | er limited by later decisions of the Supreme Court) which involved the related full faitheand credit: principle. To refuse to apply/the law of the state In which the contract is made is bevond the power of a sister state and constitutes denial of full faith and credit te the laws of such state. John Hancock Mutual Life lus. Conv. Yates, 299 U.S. 178 (1936). POINT I! Review is not warranted because the determina- tion below is supportable on other grounds without reaching the constitutional question posed by the petitioner. o It has beenthe long established policy of this Court to refrain from the det@rmination of canstitutional questions if another ground exists upon which disposition of the Issue can he Mehievgad, Ashwauder vie Tennessee Valle 4 Authority, 297 US. 288, 547 (1950) (concurring opinion) ; Siler ve Louisville & Nasheidle Ro Co. 218 U.S. 175, 198 (1909). While the question of the applicability of Florida Stat- ute 95.08 to contracts made in other states has not been deeided in the Florida state courts, the ceurt below ob- - served that the Florida courts have refrained from attemprt- ing to apply Florida statutes or public policy to contracts valid in the state where made. Connor ve Etliott, 79 Fla. D133. SD So. 164. cert. dismissed, 254 UL S: 663 (1920); Sov- ereiqu Camp, Woodmen of the World > Miron, 79 Fla. 420, S4- So. 171 (1920); Baquitable Lite Assur. Soc. of Uo Soih. ve MeRee, 75 Fla. 257, 78 So, 22 (1918): American Fire lus. Cov vy. King Lumber & Mfq, Co., 74 Fla. 180, 77 So. 168 (1917), aff'd 250 U.S. 2 (1919). Under the law of Florida, the poliey sued on is governed by Illinois law. The contractual linitation on the time to sue is valid in Lilineis. Trichelle vo Sherman do Ellis, Ine.. 259 LL, App. 346 (IW80): Martoell vo Maryland Casualty Co., 163 Ill. App. 221 (1911). | Since under the law of the forum the Florida statute is. inapplicable, the constitutional question of whether it may be validly applied te destroy the suit provision need not be reached and hence this court should decline to grant certiorari. ? POINT Ill Review is not warranted since a judgment for “the respondent is supportable because ‘of lack of coverage under the policy. ay Having upheld the defense based on the limitation «f time to sue, the court below did not reach the qhestion of whether the insurer coul@ be held liable for deliberate acts of the named insured’s wife. A finding of non-liability under the policy would render it- unnecessary to determine the constitutional questions applicable to the one year suit clause. Research has disclosed no previous attempt by a tits band to impose liability on an insurer, under a poliey insuring the property of both. for dediberate dame done ‘by the wife as an incident of marital discord. An all-risks policy of insufAnce is designed to protect against violence of the elements, deprivation by thieves and marauders. ated loss or damage inadvertently eansed. To extend the con cept of risk to include the consequences of family quar ls between husband and wife, granting to oue insured a right of reimbursement for damage spitefully done by a - spouse, who is also insured, and a right to recover for property taken by the wife in anticipation of divorce, does *@a] i 10 “*. violence to every principle of piublae policy and insurance doctrine, a The court below did not decide “the questions It is submitted that judgment for the rpspondent on’that ground would be supportable and that the question posed hy peti- tioner would not require deci ‘ision. CONCLUSION For the foregoing reasons it is respectfully sub- mitted that this petition for a writ of certiorari should be denied. a Respectfuiy submitted, MuGeNE A, LeimMan, Attorney for Respondent, 116 John Street, New York 38, New York. . Wicker & SMirn, Rein, Mounp & Corros ‘ ms Bert Corron, : LEONARD Ss. Domi, 4 of Counsel. tied September 24, 1959. § ——- Uihice-Supee ne C 4 = a > U.S. ‘ é OC! S iM 4 JAMES RL BROW AUNG, a 4 SUPREME COURT OF THE UNITED STATES : ICTOBER TERM, 1959. ‘ . No. 349. JOHN CLAY. Petitioner. VS. SUN INSURANCE OKFICE, LIMITED, Respondent = ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES . COURT OF APPEALS FOR THE FIFTH CIRCUIT. ! REPLY BRIEF OF PETITIONER TO RESPONDENT'S BRIEF IN OPPOSITION. * W. Terry GIBSON, "09 South Olive Avenue. West Palm Beach, Florida, Attorney for Petitioner 4 Grinson & GIBSON, PASCHAL C. REESE, 209 South Olive Avenue, West Palm Beach, Florida.. Or Counsel ° - — ’ ts s ' et, Kansas City 6, Mo, HA -308 ) INDEX * Subject Matter Question Presented Constitutional Provisions and anaes, Skank. io Statement - 5) ‘nan 4 , Point I. Review Is Warranted Because the Deci- sion Below Is Clearly Correct and Is Not in Full Accord ‘with the Dacdna ives Decisions of This Court... Kear Se Gee eM laa 18 5 Oe Pee a oo ee i Point II. Review Is Warranted Because the Deter- mination Below Is Materially Based on a Con- situ. Gusto...) ri 7 Point III. Review Is Warranted Since a Judg- ment for the Petitioner Is Supportable under the Florida Law -... A chien . Conclusion _— _ POR ee | Certificate of Service .. # jl Appendix A, Alabama Code of 1896, Paragraph 2802 _ li Cases Cited American Fire Ins, Co. v. King Lumber & Mfg. Co., 74 Fla. 130, 77 So. 168 (1917), aff'd 250 U.'S.2 (1919) 7 Connor v. Elliott, 79 Fla. 513, 85 So. 164, cert. dis- missed 254 U.S. 665 (1920) 7,8 Equitable Life Assur. Soc. of U.S. A. v. McRee, 75 Fla. 257, 78 So. 22 (1918) ) 7 Gallaher v. State Mutual Life Insuvonce Company, 150 - Ala. 543, 43 So. 833°. 5 Hartford Accident & Indemnity Company v. Delta & Pine Land Company, 292 U’S. 143 (1943) —. .. 4, 5 @ 2 a II oes Holderness vy. Hamilton Fire Insurance Company of New York, 54 Fed. Supp. 145 (S. D. Fla. 1944) . 4 Home Insurance Company v. Dick, 281 U.S. 397 (1930) . 4 Leroy v. Crowninshield, 2 Mason (U.S. 157 Fed. Case 8269 ) on, ae - Lincoln v. Battele, 6 Wendell 475 eee airs oe Medbury v. Hopkins, 3 Conn. 472 a eae ua ie Sovereign Camp, Wovudmen of the World, v. Mixon, 79 Fla. 420, 84 So. 171 (1920) SER ATI OF State v. Herndon, 158 Fla. 115, 27 So.2d 833 ba Ab ) Union Central Life Insurance Company v. Barnes, 175 Ky. 364, 194 S.W. 339 Sens eet ot ee / Constitutional Provisions and Statutes Cited Alabama Code of 1896, Paragraph 2802 ¢ fate 5, IT Article I, Section 10, of the Constitution” of the United States + 2 Article IV, Section 1, of the Constitution of the United States 2 Fourteenth Amendment to pian Gonabvation my ‘ia United States: _ - ; Siceteee ae Section 95.03, Florida Statutes, BO a Beets gation cane 2, 7,8 \ SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1959. No. 349. JOHN CLAY, Petitioner, vs. SUN INSURANCE OFFICE, LIMITED, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. (.@ REPLY BRIEP*OF PETITIONER TO RESPONDENT'S BRIEF IN OPPOSITION. QUESTION PRESENTED. é Where a personal property floater insurance policy is issued end delivered in Illinois to a citizen of Illino. *, and, thereafter, while the policy is in force, the insured becomes a citizen of Florida and there sustains a loss, must a fed- eral court sitting in Florida uphold 2 limitation contained in the contract with respect to'the time to sue, which is valid under the law of Illinois but would be invalid if gov- erned by Florida statute? CONSTITUTIONAL PROVISIONS AND STATUTES The constitutional provisions involved in the case are - as follows: 1. The due process clause of the Fourteenth Amend- ment to the Constitution of the United States which pro- vides as follows: “* *.* nor shall any State deprive any person of life, liberty or property, without due process of law, 7 — | aa 2. Article I, Section 10, of the Constitution of the United States which provides: “No State shall * * * pass any * * * Law impair- ing the Obligation of Contracts * * *” 3. Article IV, Section 1, which provides as follows: “Full Faith and Credit shall be given in each State to the public Acts, Records, and — proceedings of every other State * * *” The statute involved in this case is Section 95.03, Flor- ida Statutes, 1957, printed in Appendix “A”, on page A 1 of the Petition. STATEMENT. 4 The statement of the case is substantially correct: However, the respondent in its brief implies that a property settlement was made between the petitioner and his wife, either preceding or during the divorce proceedings. The records do not bear out the statement of the respondent - (R. 53-54). The only reference in the records to a prop- erty setgjement was a question by the attorney for the de- fendant in the lower court: “Was there actually any property settlement whereby you were to get certain prop- erty and she was to get certain property?” The answer was “Yes” (R. 53). However, it should be observed that there is no reference in the record-te the property involved in the suit having been the object of a settlement either between the parties or ordered by the lower court. Actually the reférence to a settlement referred to certairi oil leases” located in the State of Indiana (R. 56). There was no property settlement as the term is generally used in con- nection with divorce proceedings. The respondent asserted the two defenses set out in the statement of the case in the brief. | Petitioner brought suit in the United States District Court for the Southern District of Florida and respondent filed its answer. Subsequent thereto a motion for judg- ment non obstante veredicto or in the alternative for a new- trial was filed in the District Court. The same questions were raised in the motion (R. 15-16) as those raised in the respondent’s brief ar? the District Court denied all post trial motions and appeal followed (R. 17). ARGUMENT. POINT L. Review Is Warranted Because the Decision Bélow Is Clearly Correct and Is Not in Full Accord with the Applicable Decisions of This Court. The respondent.in argument in its reply bridf has done -nothing more than rehash the arguments contained in the brief of the appellant in the Circuit Court. The cases cited, to wit: Hartford Accident & Indemnity Company v. Delta & Pine Land Company, 292 U.S. 143 (1934), Home Insurance Company v. Dick, 281 U.S. 397. (1930), and Holderness v. Hamilton Fire Insurance Company of New York, 54 Fed. Supp. 145 (S.D. Fla. 1944), are not based on the same principle of law as the case at bar. The Delta & Pine Land Company case being the case most prominent in: effecting the decision of the, Fifth Circuit is not even remotely on point with the case at bar. The decision of the court in the Delta & Pine Land Company case did not deal with a statute similar to the Florida statute, making it against public policy in the State of Florida to insert in a contract a provision which attempts to shorten the statute of limitations of the State of Florida. The decision of the Delta & Pine Land case was based upon the failure of the insured to report to the insurer a loss within 15 months after the termination of the suretyship. There is 110 claim by the respondent that a report of losses: under the policy sued upon was not made in accordance with the terms of the policy. There is no law in the State of Florida, or for that matter in the State of. Mississippi, which declares it against public policy for a contract of insurance to contain’a clause in reference to the time for jf ( Hs) - reporting a loss under an insurance policy. The statute of the State of Florida which is at issue is a statute re- ferring entirely to the shortening of the period of limita- tions for actually commencing a suit. The same law is applicable to the State of-Mississippi. There is nothing in the records in the/Delta & Pine Land case which would lead one to believe that the decision of the Court of Appeals would have upheld the Mississippi court if the suit had been based entirely upon that part of the contract attempting to shorten the period of limitation under the Mississippi law. The Delta & Pine Land case, therefore, is not directly in point, nor could the United States Court of Appeals consider it directly in point with the case at bar. «The only case directly in point with the case at bar was before the Supreme Court of Alabama. The State of Alabama has a law similar to that of the State of Florida, to wit: Alabama Code of 1896, paragraph 2802 (App. A). In the case of Gallaher v. State Mutual Life Insurance Company, 150 Ala. 543, 43 So. 833, the Supreme Court of Alabama held that the law of the forum con- - trolled in a suit similar to the case at bar... In the Gallaher case the contract of insurance had been entered into in: -the State of Georgia and the insured parties had removed _ themselves to the State of Alabama and the question of damages involved in the suit occurred in the State of Alabama. The Alabama court held in the Gallaher case that the lex loci contractu must govern as to the validity, interpretation and construction of the contract but the remedy to enforce it or to recover damages must be pursued according to the law of the forum where the suit is brought. The- Alabama court further stated that where the law of another state is relied on as a defense to a suit brought in this state it must be shown that ac- 6 cording to the lex loci contractus the contract was invalid or, if once valid, that it has become extinguished and there- fore: is not in legal contemplation a contract. If the foreign ‘law does -not affect the contract itself but only the remedy to enforce it, it cannot be regarded and all ~_remedies on contracts whether made in or out of the state — must be governed by the laws when the suit is brought without regard to the agmedies afforded by the laws of other countries. _ . dn reply to the Alabama suit the Circuit Court took the position that the Alabama Supreme Court assumed that the issue presented conggrned the choice of the applicable statute of limitations rather than the choice of the sub- | stantive law governing the validity of the contract itself and even went so far as to say that possibly the Florida courts would reach the same conclusion that the Kentucky - court reached in Union Central Life Insurance Company v. Barnes, 175 Ky. 364, 194 S.W. 339. The State of Ken- tucky has no law similar to the law of the State of Florida or the law of the State of Alabama. The court seems to have gone quite far afield assuming that the courts of the State of Florida would take a position con- trary to the law of the State of Florida. In the case of Leroy v. Crowninshield, 2 Mason (U.S. 157 Fed. Case 8269), J udge Story after an elaborate exami- nation of a question similar to that of the case at bar held that the statute of limitations of New York was no defense. ° In a suit brought in Massachusetts in the case of Medbury v. Hopkins, 3 Conn. 472, the Court held it was well settled .that contracts would be construed according to the law of the place in reference to which they were made, but that the lex loci was applicable only as in the validity and interpretation of the contract as to time, mode, or extent 7 of the remedy and upon that principle, the court held - that the statute of New York was no defense. In the case of Lincoln v. Battele, 6 Wendell 475, in a case dealing with the statute of limitations, Chief Justice Savage, in delivering the opinion, said the distincton between the lex loci and the lex fori is well settled. The laws of the lex loci are to govern all questions affecting the validity, nature and construction of the contract but the law of the place where the contract is gought to be enforced must govern as to the remedy. 3 POINT II. Review Is Warranted Because the Determination Below Is Materially Based on a Constitutional” Question. Although the applicability of Section 95.03, Florida Statutes, to contracts made in other states, has not been decided in the Florida courts, the court below failed to distinguish between the pronouncements of the Florida courts as to the application of Florida statutes or public policy to contracts valid in the state where made which dealt with contracts other than insurance and contracts © of insurance. : The respondent cited certain cases where it claims the Florida ‘courts have refrained from attempting to apply Florida statutes of public policy to contracts valid in the state where made, to wit: Connor v. Elliott, 79 Fla. 513, 85 So. 164, cert. dismissed .254 U.S. 665 (1920); Sovereign Camp, Woodmen of the World, v. Mixon, 79 Fla. 420, 84 So. 171 (1920); Equitable Life Assur. Soc. of U.S.A. v. McRee, 75 Fla. 257, 78 So. 22 (1918); American Fire Ins, Co. v. King Lumber & Mfg. Co., 74 Fla. 130, 77 So. 168 (1917), aff'd 250 U.S. 2 (1919). ¥ 8 With the exception of Sovereign Camp, Woodmen of the World, case, these cases deal with the substantive law. The Sovereign Camp, Woodmen of the World, case, while dealing with Section 95.03, Florida Statutes, is not re- motely on point with the case at bar since it refers to a case where the policy was written in Florida by a Florida Agent for a Florida resident. This case simply confirms the constitutionality of Section 95.03, Florida Statutes. In . no part of its opinion does the Court refer to the application of the Florida statutes to contracts valid in the state where made. The Connor v. Elliott case deals entirely with real property and: the Florida court held that contracts dealing with real estate or immovable property are subject to the law of the location of the property. In the case at bar the interests of the State of Florida are superior to any other state because under the terms of the contract, worldwide floater insurance policy, Florida became the place of performance of the contract, the place in which the loss occurred, and the state of the policy- holder’s domicile at the time of the loss. The insurance company was legally admitted to do business in the State of Florida, was regulated in its business by Florida and notice of loss. was filed with the insurance company in Florida. The remedy under the policy could. only be brought in Florida and the contract provision for the -time of commencing suit on the contract of insurance involved in this case relates to the procedure to be fol- | lowed in perfecting a claim of Téss as distinguished from the substantive contract provisions relating to the coverage and policy limits. Contracts of insurance are a type of commercial transaction affected with great public interest, easily dis- tinguished from contracts relating to property generally. 9 POINT III. Review Is Warranted Since a Judgment for the Petitioner Is Supportable under the Florida Law. The respondent in its brief takes the positien that the lower court would have inevitably entered a finding of non-liability under the policy sued upon if it had been - unnecesary to determine the constitutional questions ap- plicable to the one-year suit clause. * The respondent has taken the position that a personal property floater (worldwide insurance policy) is an “In- land Marine Policy”. The term “Inland Marine Policy” is a fiction of the insurance profession. The principal reason for purchasing an insurance contract of the sort described . in the policy upon which suit was originally brought is to protect personal property of the insured against theft and malicious destruction wherever the same may be lo- cated in the World; regardless of who is guilty of the theft or, the act of malicious destruction. The case at bar is for the recovery of money due the - insured under the policy for property stolen from the insured by his wife, of property wantonly destroyed by her. The Florida Supreme Court recognized that a husband may steal from his wife or a wife from her husband. State v. Herndon, 158 Fla. 115, 27 So.2d 833. The Court in the Herndon case held: ‘“* * * it is not to be inferred from what has been said that in every case in which one spouse appropriates the property or funds of the other may be classified as larceny * * * The element of intent must be one of the controlling factors in determining larceny. Here as elsewhere funds of one spouse used by the other to purchase food and clothing or family necessities would not be construed as larceny, but ‘here the charge is for appropriating $5,000 of the wife’s money. In the state 10 of the law pointed out-here we think it necessarily follows _ that even-spouses must observe the difference between mine and thine and if they fail they do so at their peril.” The District Court recognized in the case at bar that under the law of Florida a wife can, in instances where a wrongful intent is shown, steal from the husband and so charge the jury (R. 99-100) and the jury, having taken into consideration the charge of the court and the cir- cumstances presented by the evidence, held that the case at bar met the requirements to the extent that larceny had been proven and so’ returned a verdict against the respondent. | In view of the above-cited case, it is submitted that the District Court would have had to utterly disregard the law of the State of Florida and the findings of the Florida Supreme Court in order to have been able to support its findings because of a lack of coverage under the policy. CONCLUSION. For the foregoing reasons it is respectfully submitted that the petition for a writ of certiorari should. be granted. Respectfully submitted, ~ : a period, less than that’ prescribed by law, a contractual ‘stipulation made in another jurisdiction is not, available as a defense.” as This proposition is supported in various state courts by. the following decisions: Galliher v. State Mutual Life Insurance Co., 150 Ala. 543, 43 So. 833 (1907); Asel y. Order of United Commercial Travelers, 197 S.W.2d 639 (Mo. 1946); Gulf Insurance Co. v. Holland Construction Co., 236 S.W.2d 1003 (Ark. 1951); contra: Union Central ,. Life Insurance Co. v. Barnes, 175 Ky. 364, 194. S.W. 339 (1917) (no statute involved). ecuweeies ‘ - _ The court in its/decision of April 8, 1959, in which it held that a violatio Re Sei would result if Sec- tion 95.03, Florida Statu 957, were applied to the in- ‘surance contract in question relied upon Home Insurance .~Company v. Dick, 281 U.S. 397 (1929% Holderness v. Ham- ilton, Fire Insurance Company of New Yorky 4 F. Supp. — (145 (S.D. Fla. 1944); Hartford Accident Indemnity Company v.-Delta Pine Land Company, 292 U.S. 143 (1933). / However, none of the above 3 cases take“the arbitrary . position that the place of contracting vet and in | all circumstances controls the validity of stipulations as to the time within which suit must be brought. In each of these cases the court takes the position that om the particular facts of that case sufficient connections were lacking between the state of the forum and the contract to justify the forum imposing its public policy considerations upon the contract. Each of these ‘cases is clearly distin- _ guishable from the case at bar. * In the case of Home Insurance Compariy v. Dick, supra, the forum had no connections whatsoever with the con- tract. The contract was made in another jurisdiction, the ; Jeo oS - é > 8 loss occurred in another jurisdiction afid the risk under ‘ the insurance policy was never. within.the jurisdiction of - the forum. In the Holderness case, supra, the forum was merely the place in Avhich the suit happened to have been instituted. Holderpess was’ a sojourner in the State of Florida and merely used the forum as a convenience. ‘The insurance policy was entered into in’ North Carolina, the property insured was situated in North Caren and the loss occurred in North Carolina. In the case at bar, however, throughout substantially all of the contract riod, the property insured was in the State of Florida. /The loss of the property occurred in. Florjda and consequently the cause of action arose in mais f state. Florida was therefore, the “natural” or “rormal’- forum. In addition ‘the insured was a bona fide resident’ of Florida at the time the cause of action arose and at that time the insurer was admitted té do business in PYorida. The only ‘connection of the State of Illinois with the con- _ tract was that the contract was issued in Illinois. If it-can be asserted that there sare any circumstances\in which a state, other than the state in which a contract was made, has suffitient interest in the contract to impose its statutes . > to nullify the contract stipulation on the basis of its public policy, then the case at bar presents sich’ sityation., The -insurance policy in question (R. 5;\Plaintiff’s Exhibit 1) is designated by the respondent, Sun Insurance Office, Limited, as an —— Personal Property Floater Policy .(World Wide)”S By so designating the policy it is ap- parent that the respondent fully realizes’ that the in- dividuals insured and the property insured under the ‘ policy may be located in any jurisdiction in the world. The citizenship of the insured is not considered and it can be reasonably concluded tha under’: such a policy it woutt b be impossible to limit i place of the forum ¥ oy 9 : to the State of Illinois. The State of Florida, prior to 1913, was attracting residémts. from various states of the Union and it became apparent to the legislative authorities that unless they established by law the policy of the. State of Florida in reference to contracts entered into in other States, that the situation would be so confusing that it would be impossible for the judiciary of the State of Florida to arrive at reasonable and uniform conclusions in matters | presented where contracts from other states ~ were involved, and where the limitations’ were ‘not uni- form. Consequently the Legislature in 1913 clearly stated the policy of the State of Florida toward the attempt by contracts to provide limitations contrary to the Stat- ute of Limitations of the State of Florida. ..The Legisla- .ture,apparently took the position in 1913 and ‘each suc- ceeding Legislature thereafter has affirmed that an agree- ment fo fix a period of limitXtions by/contract is a matter which relates to the administration of justice and is. not entitled to the same protection accorded: to ordinary con- tractual provisions (Cf. Carbon Black Export v. The SS Monrosa, 254 F.2d 297° (5th Cir. 1958), cert. denied -359 U.S. 180 (1959)). | . ¥ Apparently, the a Pine Land Company case, supra, influenced the Dijstrict Court because of the apparent similarity of the facts tn that case > % the facts of the case avs bar. The State of ‘Mississippi where the suit was brought has a statute similar to Section 95.03, Florid& Statutes of 1957, and the cause of action apparently argse in the State of Mississippi. Howéver, other factors. in that case are not in any way similar to the facts in the case at bar. In the Delta, Pine Land Company case the risk was not a risk of property loss in which there was a situs of the property—the risk was one involving the honesty of em- ployees which employees were located in several states. L ~~. 10 The primary difference between the Delta Pine Land Company case and the case at bar is that the former did not involve a contract stipulation involving the time within which suit must be brought; the case involved a stipulation requiring that-a claim must be presented to the insurer within 15 months after the termination 6f the suretyship (See Appendix A). Thus the holdin in the Delta Pine Land Company case cannot be con- sidered to be a holding. directly in point, as a contract stipulation regarding the time wathin which suit must be brought was not at issue in that case. The language in the Delta Pine Land Company case, however, is most_ __important. The court said that the question is basically: one of “the relative importance of—the interest--of—the— forum as contrasted with cause created at the place of the contract * * *.” (292 U.S. 143). In the case at bar the property insured was lecated ‘in Florida throughout most of the policy period (R. 20- 21). The insurer was doing business in the State of *% Florida during all of the policy period, the loss occurred in Florida, the: investigation of the loss was made in Florida by agents of the. insurance company. A contract of insurance is not an ordinary bilateral contract. There is no “meeting of the minds” between both parties on all of the policy provisions. A contract of insurance is a contract prepared in its entirety by the in-. surer and is accepted by the insured. , He has no control whatsoever over any of the terms of the policy. The only protection an insured has against unfair, unreasonable or improper provisions in the contract of insurance is the fact, that as in the state of Florida, in most states regula- tio’ is imposed on the insurer in regard to policy forms. 4 Such form contracts are subject to the public policy of the forum (Cf..The Kensington, 183 U.S. 263 (1901)). | 1] The Court of Appeals in: the | case at bar’ discounted the interest of the State/of Florida in the case at bar. It in effect held that where a state has significant interest involved it may impair property rights created in other states. It is hard to understand how a state could have more interest in a contract than the State of Florida has in the contract of insurante upon which the case at bar is based. The State of Florida was so involved in the case at bar that the right of cee eee to proceed at all in the courts of Illinois is questionable. The only forum hav- ing proper jurisdiction was some forum within the State of Florida, and bound by the public policy of the State of Florida. The respondent was at the time of the issuance of the ~ policy and at the time that the loss occurred under the policy, qualified under the laws of the State of Florida to transact business: within the state, and therefore, was in the same position as a corporation whose charter had been issued by the State of Florida. Apparently the fact of incorporation under the laws of a given state results in a sufficient interest on the part of that state to dictate a choice of its laws, over those of a foreign forum in determining the rights of those who have contracted with the said corporation. This argument is clearly stated in Ex rel. United Commercial Travelers v. Wolfe, 331 US. 586 (1947). While the Wolfe case deals with a fraternal benefit society andthe rights of members of a society, the same rule should be applied to the insured-under a policy such as that sued upon in the case at bar. This Court in Pink v. A.A.A. Highway Express, 314 U.S. 210 (1941), rehearing denied 314 U.S. 716 (1942), and in Watson v. Employers Liability Assurance Corpora- tion, 348 U.S. 66 (1954), rehearing denied 348 U.S. 921 (1955), was in favor of applying the law of the forum. Ap- 1? a parently, the Circuit Court took little. notice that this Court had distinguished the Hartford case and held in favor of ‘applying the lex fori. In fact, in its opinion:the Circuit Court notes several cases which argue convincingly ° for a decision contrary to the findings of the Court. Hoopeston Canning Co. v. Cullen, 318 U.S. 313 (1943 considers the well established rule that the state has a par- ticular interest in the insurance of property within its borders, hence its power to regulate such matters is ex- pansive. % In Hanson v. Denckla, 357 U.S. 235 (1957), rehearing — denied. 358 U.S. 858 (1958), a case originating in the same jurisdiction as the case at bar, the court cast serious doubts upon the precedent value of the Case, a. the Denckla case it appeared that there were insufficient contacts with the state of Florida to allow it to. assume jurisdiction over nonresidents but unquestionably had the contacts been sufficient to sustain jurisdiction, the law of Florida could have been applied. In the case at bar all of the contacts were with the state of Florida with the exception of the delivery of the premium monies to the agent for the respondent in Chicago (R. 20-21-22). Ifvthe interests of the forum are sufficient, neither the due process clause nor the full faith and credit clause of the federal constitution require the forum to apply the normal conflict of laws-fule. It is difficult to see how the majority in the 'case at bar can be considered sound in light of McGee v. International Life Insurance Company,. 355 U.S. 220 (1957). In the McGee case a policy of insur- ance was issued in Texas and mailed to California from whence the assured mailed premiums to an out-of-state office relying upon the state's interest in insurance matters and with the showing of no otheggeonnection with the state of California. The Supreme Court held that Cali- 13 ; ‘ ; fornia could obtain jurisdiction over the foreign corpora- ‘tion by substituted service. In the case at bar, the de- fendant obviously did business in the state, the loss oc- curred and was investigated in State of Florida. It seems that the requirements of fke-McGee case have been met. ; b In the case at bar the inter¢sts of the State of Florida | are superior to the interest of ‘any’ other state because — Florida. was the place of performance of the contract; it was the place in which the cause of action arose; it- was the state of the policyholder’s domicile; the insurance com- — pany was subject to the regulation of its business by Florida, and finally because, coniracts of insurance are a type of commercial eeseever’ tn whitchreguietion jr the ————— brought, valid in Illinois where the contract made, is a substantial property right, and that a violation of the due process clause would result if the Florida invalidating stetute (Fla. Rev. Stat., § 95.03 (1957)) were applied. The Court of Appeals discussed but did not decide whether the Florida state courts would construe the invalidating statute as applicable to this case. That court further stated that since the defense as to timeliness of suit was upheld, it did not reach respondent’s other contention, to wit, the question of the applicability of the policy to the kind of loss involved in this case. Rehearing was denied by the United States Court of Appeals on May 28, 1959 (R. 42). en Summary of Argument I. A suit ¢lause-in a personal property floater policy issued in Illinois to a resident of that state which is valid under Illinois law it not be voided by a Florida statute of general nature merely because the insured later becomes a resident of Flgrida and-*sustains a loss in that state. Under the due précess clause of the Constitution, a contract valid where mad¢ may be nullified by a statute of the forum state only if thé following two conditions are met: (a) The foyum state must hive a reasonable and legiti- mate ifterest in the subject matter of the contract. (b) The interest of the forum state ‘in the subject mat- ter of the contract must be evinced by a clear and unmistakable expression.of local, policy*in contra- vention of ii terms of the contract. »me Ins. Co. v. Dick, 281 U. S. 397 (1930) ;. I artford| Accide nt & Indemnity Co. v. Delta dé Pine Land Co., 292 U.S. 1438 (1934) ;. Vatson he Employers Liability Assur. a 348 U. S./66 (1954) ; Hanson) v. Denckla, 357 U. S. 238 (1958) ; | ' : Joe) y S| his wife had property outside/of Florida, as well as within ‘the state (R. 20). Home Ins. Co. v.Dick,: ie U.S. 397 (1930), and Hartford Accident & Indemnity Co. v. Detta & Pine Land Co., rps ‘U.S. 148 (1934), throw light on what is regarded as sufficient interest on the part of the forum to justify sie tecting such interest as against the prohibition imposed by the due process clause of the Fourteenth Amendment. Home Ins. Co. v. Dick, supra, involved the application of a Texas statute similar in content to the general Florida statute in issue. The Court held that the forum statute prohibiting a limitations. prevision shorter than two years _ ‘fin any contract’? was inapplicable to a suit clause: con- ‘tained in an insurance contract made outside the state between non-residents where the loss had: likewise occurred outside the state. It was held immaterial that the plain- tiil’s permanent residence was in Texas since he also resided in Mexico at the time of the assignment of the policy and at the time of the loss. In aecord: Holderness v. Hamilton Fire lus. Co. of N. Y., 54 F. Supp. 145 (S. D. Fla. 1944), in which the Court likewise refused to apply the very Florida statute which is here in issue to a foreign ‘contract entered into between non-residents where the loss occurred in such foreign jurisdiction. Home Ins. Co. v. Dick, supra, leaves unanswered the question as to-whether a foreign contract will be enforeed where the loss occurs within the forum state and the assured has changed his residence to that of the forum state. How- ever, in Hartford Accident & Indemnity Co. v. Delta & Pine Land Co., supra, this issye was determined. That case involved aglause in a suretyship contract-requiring notice _of claim within fifteen months from the termination of the suretyship for the defaulting employee. At the time the ‘ contract was issued, the assured, a “Mississippi corpora- tion, had its principal place of -business in.Tennessee and the contract was issued in Tennessee through the insyrer’s 14 Tennessee agent. The contract insured against the defalea- tions of certain employees wherever committed. The clause in the contract requiring timely notice of claim was legal in Tennessee. After the assured had moved its prineipal place. of business to Mississippi, a defaleation oecurred within that state. The assured failed to give timely notice of claim. To ‘the defense that the assured had failed té meet the conditions imposed by the contract, the assured _invoked #prohibitory statute of Mississippi. That statute, _ unlike the Florida statute in the case at bar, was specifically made applicable to insurance and, specifically declared that it was the policy of the state to apply the statute to extra- territorial contracts governing risks within the state. The Court held that the interest of the state in protecting insured risks within its borders against the operation of the limiting clause contaimed in the foreign contract, valid where made,’ was not so vital as to deserve protection against the due process clause of the Fourteenth Amend- ment. In upholding the contract the Court stated: “A legislative policy which attempts to draw fo . the state of the forum control over the obligations of contracts elsewhere validly consummated and to convert them for all purposes into cont acts of the forum regardless of the relative importance of the interests of the forum as contrasted with those created at the place of the contract, conflicts with the guaranties of the Fourteenth Amendment * * °, Cases may occur in which enforcement of a contract as made outside a state may be so repugnant to its vital interests as to justify e nforcement in a different manner. Compare ond v. Hume, 243 U. 8, 15, 22. But clearl%& this is not such a case.” (292 U. S. at 150) ns Phe Delta d Pine case is, on its operative facts, identical wiih the facts in the case at issue, and on the-authority of that case, the respondent nust,-preyail, Heéwever, it is « desirable to consider other relevant cases ig order to g “ : lo ascertain whether later pronouncements of the court have affected its holding. The cases to be considered for this sarong are Watson ve Employers Laability Assur. Corp., BAS UL S. 66 (1954); a group of workmen’s compensation cases mah ific Employers Ins, Co, v, ludustrial Accident Commission, 306 U.S. 493 (1939); Aluska Packers Ass'n. v. lndustrial Accident Commission, 294 U.S. 5382 (1935); and Carroll vy. Lanza, 349 U.S. 408 (1955)) and cases in volving’ the regulation of foreign insurance companies insuring risks within the borders of the. state (Osborn v. Ozlin, 310 U.S. 58 (1940) and Hoopeston Canning Co, ve Cullen, 818 U.S. 318 (19438)). The leading case which upholds the local policy interest of the forum is Watson v. Employers Liability Assur, Corp., supra. In that case, the manufacturer of Toni Home Permanent preparations was insured for liability under a policy delivered in Massaciusetts. It contained a clause pro- viding that no action shall lie against the insurer unless a judgment is first obtained against the insured. The product was sold throughout the country and the plaintiff, who was injured by its use in Louisiana, sought to sue the manu- facturer in that state but service was contested. In suing the insurance company, the plaintiff relied upon a Louisiana statute which specific ally provided that whether or not an insurance policy is delivered in Louisiana and whether or not such policy contains a provision forbidding direct aclion against the insurer a persen injured in Louisiana shall have a direct action against the liability insurer pro: vided the accident oceurs within the State of Louisiana. The Court held that the interest of Louisiana in protecting those injured within its borders under the circumstances /there presented was of sufficient importance to justify the nullification of the foreign contraet. The opinion. states that injured persons in Louisiana may burden Louisiana hospitals and that Louisiana was the most convenient fortim in which to sue sinee efforts to obtain service on the manufacturer in Louisiana were unavailing ‘and the & 16 necessity for traveling to Massachusetts to obtain a rem- edy was an oppressive burden on a resident of Louisiana. The Court did not overrule Hartford Accident & In- demnity Co. v. Delta & Pine Land Co., supra., but affirmed the proposition there stated. It merely distinguished that case on the ground that no vital interest of the forum state was involved. The superior interest of the forum state in the Watson case,.as compared with that involved in Delta & Pine and in the case at issue is easily demonstrable. In Watson an. unreasonable burden was imposed on an injured party if suit had to be brought against the tort- feasor in a distant jurisdiction, especially when the liability insurer, the ultimate obligor, was amenable to the juris- diction of the forum state. Moreover, in Watson, the in- surer was, under the Louisiana statute, permitted to inter- pose against the injured person each and every defense it might have under the terms of its policy. The statute merely served to bypass the insured and permit suit di- rectly against the insurer. . The problem of enforcing the obligations of-a liability insurer s@ as to afford the injured party the right to pay- ments under the policy is one of long standing. The in- dividual states have sought to deal with it in various ways, the most common of which is a statute creating a direct cause of action against the insurer if a judgment against the insured remains unsatisfied. But the effectiveness of this remedg#epends upon the ability of the injured party to bring suit first against the tortfeasor. If the prospective defendant is a non-resident, the injured party is relegated . to an action in some other jurisdiction, a proceeding which iy cumbersome and expensive. A method devised to re- lieve the inhabitants of a state from the necessity for — traveling elsewhere to sue a non-resident who comes within its borders and inflicts injury is to be found in the so- called nonresident motorist statutes which subject a foreign motorist to the jurisdiction of the state within which he ee ee tae.t causes injury. ‘The validity of such statutes was upheld in Hess v. Pawloski, 274 U.S. 352 (1927).. The Louisiana statute passed upon in the Watson case is an extension of the same principle and deals with the problem of the non- resident who remains outside of the state but commits a tort by sending an allegedly dangerous product to its in- habitants. The effect of the Louisiana statute, is not to impose a liability on the insurer “which it did not already have. Enforcement would merely have been delayed under the ‘‘no action’’ clause in its policy. Louisiana sought to make it possible for its residents to seek redress within the state by proceeding directly against the insurer upon whom the liability would have, in any event, ultimately fallen. Whether the legislation is regarded as valid because the interest of the state makes it immune from attack under the due process clause, the approach taken by the Watson majority, or because of the insurer’s express con- sent which it was required to give as a condition to obtain- ing a Louisiana license,-the approach adopted in the con- curring opinion of Mr. Justice Frankfurter, the fact re- mains that the entire membership of the Court perceived a strong and compelling interest on the*‘part of the State of Louisiana which would jattach to every liability policy issued to an insured whg-gonducts widespread, businéss activities throughout the/entire-United States, That in- rest is not-one which atfaches at some later date by an un- forese ‘en fortuitous cirgumstance to a polidy - Which- would he of no concern whatever to Louisianay at thé, times of issuance. It is a present and immediate “interest, predi- cated on Louisiana’s/ rightful concern for the welfare’ of its own residents which gives rise to its right to legislate extraterritorially by excising the ‘‘no action’’ clause from every liability policy issued to an insured engaged in a nation-wide business or who might commit a tort. in the State-of Louisiana. Like the Watson case, the compensation cases afford an example of an interest. which is recognized as a_legiti- 18 f mate concern of the local jurisdiction. Thus in Pacific Employers Ins. Co. v. Industrial Accident Commission, supra, the Court said that the interest of California in protecting employees who are injured in California and in having their hospital bills paid justifies the application . of California law despite the fact that the employment contract was made in Massachusetts and was otherwise subject to Massachusetts law. In accordance with the same principle of recognizing the interest of the state in afford- ing a remedy to injured employees who otherwise may become a public charge,sare Alaska Packers Ass’n v. In- - dustrial Accident. Commisston, supra, and Carroll v. Lanza supra. 7 With respect to insurance, cases in which state legisla- tion affecting insurance have been upheld against attacks based on extraterritorial objections have invariably in- volved forum statutes which are closely related to the welfare of the insuring public within its borders. Among ° such statutes are licensing statutes and statutes imposing reserve requirements on foreign insurers. See Osborn v. Ozlin, supra, and Hoopeston Canning Co. v. Cullen, supra. The interest expressed. by such insurance statutes is clearly superior to that sought to be effectuated in this case. The case‘at bar involves a contract negotiated and con- summated in Illinois between an insured residing in that ‘state and a foreign insurer licensed to do business therein. It insures property of the insured and no rights-of third parties are affected. No multi-state transaction was in- volved. Like the scope of the Hartford policy in the Delta dé Pine case, it covered losses wherever they might take place. ‘Phe coverage is on movable property having no fixed situs. There was not even involved the casual con- . heetion with Florida which the Pelta ¢ Pine policy had with Mississippi, in that 21 employees in that state were actually listed in the Tennessee contract. It was strictly a contract *‘made locally, affecting nothing but local affairs 19 *** (Watson v. Employers Liability Assur. Aaa ae at 71), regulated and ¢ontrolled as to conditions, premium rate ‘and method of. issuance by the laws of Lilinois and its Department of Insurance. Any holding that Florida had sufficient interest to apply its statute to respondent’s policy would imply that the moment Mr. Clay became a resident of Florida all of his contracts, of whatsoever nature, previously entered inte in Illinois or elsewhere became subject to the statutes of his new home. But if-he left some of his property in IHinois where if Was lost or damaged, would the Florida statute apply merely because he had become a resident of Florida?) Suppose/ after moving to. Florida he went on a trip and sustained & loss in.some other state, would the Florida statute apply? If, in such, ease, Mr. Clay sued in Florida, could ifs courts constitutionally obey the prohibition of Section 95.03 against giving effec: to the suit clause in the policy? ” © took place in Florida? This is a world-wide policy, giving, “the insured the benefit of coverage anywhere in the world while he was a resident of Lllinois and continuing the same benefit after he became a resident of Florida. “But if Mr. Clay spent a vacation in Florida while he was still living in Illinois and sustained a loss of baggage during his visit, would Florida thus acquire a safficient interest in the contract to permit the application of its statutes? We might go firther and assume, to create a hypothetical parallel to the Delta & Pine situation, that Mr. Clay had a winter residence in Florida while he was still domiciled in Illinois. The policy would cover personal property in the Florida home under those circumstances. Would it ‘be supposed that Florida could claim an interest in a con- tract made in Illinois between citizens of that state suffi- cientQo apply its own statute to a lawsuit for damage to personal property in the Florida home? The Delta d Pine case clearly precludes any such result, 20 Md _ Is it material that the suit was brought in Florida? An insurer may be sued on a policy of insurance in any state where it can be served with process. The eause of action is transitory. Mr. Clay could have ‘sued in Illinois, (Illinois Life Insy Co. v. Prentiss, 277 We 883, 115 N.E. 554 (1917)), and if he had never become a resident of — Florida and had sustained a loss in Illinois he could have sued in Florida (see /Zolderness ve Hamilton Fire Ins. Co. of NOY... 54-F. Supp. 145 (S. D. Fla. 1944)). The sugges- tion on page 11 of petitioner’s brief that the State of Flor- ida *‘was so involygl in the case at bar that the right of respondent [sic] to proceed at all in the courts of Illinois is questionable?” and the positive assertion that the ‘‘only forum having proper jurisdiction was some forum within the State of Florida’? are without foundation. The decision of*the constitutional question presented by this case does not involve the simple question as to whether the law of the forum is to be applied as against the law of the state where the contract was made. The mistaken notion that the: issue was simply whether the law of the foam should be applicable led the Alabama Supreme Court in Galliher v. Stale Mutual Life Ins. Co., 150 Ala. 543, 48 Sq 833 (1907) into the error of merely choosing which statute of limitations would be applicable. Any question as to whether we are dealtyg with a matter of rémedy which is generally governed by the law of the foram has been put to rest by the Courtin Home Ins. Co. v. Dick, supra. In rejecting the contention that the pro- hibitory statute of the foruni related merely to remedy and that the contract was therefore to be subject to the ‘law of the forum, Justice Brandeis said: ‘The statute isnot simply one of limitation. , Ut does not-merely fix the time in which the’aid of the Texas courts may be inveked * * * It deals with ‘ the powers and capacities of persons and corpora- tions. It expressly prohibits the making of certain conivacts.’’ (281 U.S. at 407) + woe ~ The correct rule was‘that followed by the court in Union Central Life Ins, ¢ ‘o. v. Barnes, 175 Ky. 364, 194 SAW. 339 -(1917), wherein’ fhé law of a forum state similar to that yexisting in Florida was held inapplicable to a limitations - clause in a contract valid where made. In that case, the “assured and the beneficiary under a life insurance policy moved to thé forum state and resided there at the time of the loss. Such facts were not deemed sufficient to justify the application of the forum law to invalidate the foreign contract. im He the substantive law governing the validity . of a contract should be the same in this case whether suit is brought in Florida or elsewhere. If respondent were not admitted-to do business in Florida and could not be served with process therein can it be said that its sub- stantive rights would be different merely because the suit had to be brought in some other jurisdiction where service ~eould be effected? : Much emphasis is laid by’ petitioner and by the At- torney General of Florida on the fact that respondent is licensed to do business in Florida. Respondent, like most other insurers of substance, is licensed in many states and ‘from the record in this case (Pl. Ex. 1, R. 5, fol. 11), we - ean identify eleven states in which it maintains offices. Its Florida license is unrelated to the policy in suit which was issued pursuant to its license in Illinois and is subject to the regulation of that state. Its license is likewise un- related to the fortuitous cireumstance that Mr. Clay ‘be- came a resident of Florida. The policy would have con- tinued in force if Mr. Clay had become a resident of any other state whether or not respondent was licensed to-do business therein. Respondent was not required (as was the insurer in Louisiana in Watson), to consent to Section 95.03 of the Plorfita statutes. Absent any such factor, respondent's Florida license has no bearing on the issues here to be decided. >—3 ‘“‘The contention advanced by counsel for the plaintiff that the defendant impliedly assented to the venue provisions is answered and refuted by repeated decisions hokiine that a foreign corpora- tion by seeking and obtaining permission to do business in a State does not thereby become obligated to’ comply with or estopped from objecting te any provision in the state statutes which‘is in flict with the Constitution of the United States.’’ | Power Mfg, Co. v. Saunders, 274 U. S. 490, °496- 497 (1927). ‘ It is submitted that Florida had insufficient interest in the policy and in its suit clause to justify extraterritorial legislation, even if we could find a strong public policy manifesting a positive intention to treat a suit clause as an evil. (b) We turn now to the second branch of the inquiry, and assuming sufficient Florida interest in the contract, we seek to idewtify the snpposed evil and to find some evidence of a strong public policy aimed at combatting it. The one year suit clause in insurance policies is common, and has been for a long time. Its reasonableness was acknowledged 100 vears ago and is generally recognized to- day. Oe: . ‘*And it is not an unreasonable term that in case of a controversy upon a loss resort shall be had by the assured to the proper tribunal, whilst the transac- tion is recent, and the proofs respecting it are acces- sible.’’ : Riddlesbarger v. Hartford Ins. Co., 7 Wall. (74 > U.S.) 389, 396 (1868). The one year suit clause has been included in the New York statutory fire insurance policy through many decades. It was carried over from the ISS7 pelicy to the 1918 policy and into the 1943 policy which is the present form. It reads ; | ‘*No suit or action on this policy for the recovery gof any claim shall be sustainable in any court of 23 law or equity unless all the requirements of this policy shall have been complied with, and unless . commenced within twelve months next after inceptjon of the loss.”’ (N. Y. Ins. Law § 168(6)) The 1943 New York standard policy has been adopted | in 46 States and the District of Columbia by legislative enactment or approval of the Insurance Commissioner | pursuant to statutory authority. Florida adopted it by approval ‘of the Commissioner effective March 1, “1944. - The Spectator, /nsurance Laws, Taxes € Fees, p. 247 (1959). That the standard one year suit-clause is a- reasonable provision serving an important function is best demon- strated by the fact that of the states adopting the New York standard policy, 42 plus the District of Columbia, have not undertaken to vary. its suit clause provision (Ap- pendix, infra, p. 41), despite the fact that the ordinary ' period provided by general statutes of limitation is six years in most states, as high as 15 years in some, with a few adhering to a three year limit. This reflects acknowl- edgement by the majority of jurisdictions that there is a sound public necessity for requiring more prompt dsion by an insurance claimant than is required with respect to ordinary contracts. An insurance company is forced by law in its state of incorporation, as well as in all-states in which it may be licensed, to maintain reserves*for unpaid — losses. Those reserves constitute a charge on its assets ‘which necessarily has a material effect on its balance sheet. If its liability did not terminate after the passage of some period shorter than five or six years, the snowballing effect of cumulative reserves could well result in insolvency. To avoid such consequence would require drastie increase in premium rates to the detriment of the public or the sensible alternative of a limjted period during which the insurer is exposed to liability. y > , 24 The general acceptance of the one year limitation implies a realistic recognition of the fact that an insured who sus- tains a loss under.a policy expects, and usually receives, prompt reimbursement where the claim .is legitimate and the liability. indisputable. . If the policyholder is not promptly satisfied, the issue becomes the subject of litiga- tion in short order. In that respect, the atmosphere differs from that which ordinarily prevails where private dis- putants cannot amicably resolve their differences, and where the Marty who considers himself the ‘victim-of a. breach of contract may hesitate long before resorting to litigation. There can be no concern about any possible injustice in ‘the enforcenient of the suit clause where the delay may be ‘attributable to misleading conduct by the insurer or. » because of circumstances making it impossible for the in- sured to bring suit on time. It is uniformly held that the clause can be waived by the insurer, or it can be estopped from asserting it, and that the bar will not be applied in any circumstance where suit within the period was impos- sible. (20 Appleman, Jusurance Law & Practice, §§ 11631, 11637:(1947)). It is submitted that on a nationwide basis it can be said that limitations shorter than the statutory period with respegt to claims. on insurance policies are expressly ap- proved in most states and that even with respect to the minority, it does not appear that there is any abhorrence -for the clause sufficient to ripen inte a full fledged public policy outlawing valid contracts made outside the state Within the purview of its right to regulate the business of insurance within its borders, each state may apply its ow? » views as fo particular policy provisions which it may pre- scribe or prohibit in its insurance code. But that is a far ery from the establishment of a strong publie policy war- ranting extraterritorial activity. Has Florida expressed an abhorrence for policy clauses limiting the time to sue to a period less than its statute Ye di = 25 of limitations? Has it even exhibited any such public policy though wot actually expressed? Like Louisiana, it has ‘fan insurance code which comprehensively regulates the business of insurance in all its phases.’’ (Watson v. Em- ploye rs Liability’ Assur. Corp., supra, at 67). Nowhere in * the Code is there any suggestion that suit limitations are disapproved. Indeed, the Code actually makes mandatory a short limitations period in certain types of disability sabiiale Fla. Ins. Laws °.642.03(n) (1958) (now Fja..Laws -T959, ch. 59-205 § 559, Fla. Ins.'Code § 559 (1959) ), Fla. Laws 1959, ch. 59-205 § 592 (4), Fla. ae Code § 592 (4) (1959). It should be noted that whereas the New York standard fire insurance policy precludes suit ‘‘unless commenced within 12 months next after inception of the, loss,’’ the clause in respondent’s policy says ‘12 months next after discovery by the assured of the occurrence which gives rise to the claim.’’ This is not a provision ‘fixing the period of time in which suits may be instituted’? (Section 95.03) toa period less than that provided for by the statute of _limitatigns of Florida. It may be less, it may be more, since the contract period rans from discovery of the loss, not from its inception. See Atlantic Coast Line R.R. v. Chase & Co,, 109 Fla, 50, 146 So. 658 (1933). Where a strong publie policy exists, Florida makes it explicit and clear. Its insurance code contains a statute similar to the California Unauthorized Insurers Process Act (Cal. Ins. Code, §§ 1610-1620), the validity of which was upheld in McGee v. International Life Ins. Co., 355 U.S. 220 (1957). Aligning itself with a number of other states concerned with the problem of residents hold- ing policies delivered to them in the state by unauthorized insurers, the Florida statute contains a firm declaration by the legislature of the nature of its interest and the necessity for providing a method of substituted service by exercising ‘‘its power to protect its residents’? (Fla. Laws 1959, ch. 59-205, § 346, Fla. Ins. Code, § 346 (1959) ). Another example of an expression by Florida of a declaration of 26 interest and purpose is found in Fla. Laws 1959, ch. 59-205, § 352, Fla. Ins. Code, ¢ 352 (1959), dealing with Florida’s ‘*surplus lines law”. , Section 95.03 is paft of a general statute listing statutes of limitation.’ The particular section at issue.merely states _ that all provisions in any contract fixing the ‘ime for suit ~ at less than the statute of limitations ‘tare hereby declared to be contrary to the public policy of this state, and to be illegal and void’’. Indeed, in the published compilation of - insurance laws issued by the Florida Insurance Commis- sioner, Section 95.03 is not included, although other miscel- laneous laws having a bearing on insurance but not part of the Fiorida Insurance Code are set forth. The absence of any public policy whatever with respect to suit limita- tions in insurance policies is perhaps best reflectesk in a recent (undated) manual published by the Honorable J. Edwin Larson, Insurance Commissioner of Florida, entitled ***«Questions and Answers for Insurance Adjusters (Second Revision)’*’. The foreword» reads as follows: ‘*As Insurance Commissioner of Florida, I feel that all persons associated with this great industry should have a thorough knowledge of the insurance laws of Florida as well as a knowledge of insurance practice and theory. Only if this holds true can the . insuring public be served and protected in a manner which it has a right to expect from professional people. I hope this manual, the product of much time and effort, will serve ‘in some respect to improve the knowledge and understanding of those persons enter- ing the field of Fire and Casualty claims adjustment as well as to provide a ready reference for adjusters, already licensed and established.”’ ; . In Section 7 of the manual, headed ‘‘Fire and Allied Lines’’, there appears the following question and answer (question 143, p. 86): **Q. How long after a loss may a suit or action for recovery of any claim be sustainable in court? A. The suit or action must be brought. within 12 months next after the fire and the insured must show compliance with all the requirements of the poliey.’’ We also find that any Florida statute requiring a de- parture from ordinary policy conditions is recognized and specifically referred to in the manual. For example, there is a special discussion of the effect of Florida’s valued p@ticy law, a statutory departure from a provision of the ~_ standard fire policy {question 95, p. 80). | The Court has adhered to the view that a state sachin to uphold legislation which might conflict with constitu- tional guarantees must clearly exhibit a strong and positive policy. In Hansow v. Denckla, 357 U. 8. 235° (1958), the Court distinguished Mé@Gee v. International Life Ins. Co., supra, by pointing out that its decision upholding the California Unauthorized Insurers Process Act had made special nete of the interest of California in prov iding re- dress for its citizens, The Court- said: “This ease is also different from McGee in that there the State had enacted special legislation * * * o exercise What MeGee called:its ‘manifest interest’ providing effective redress for citizens who had _ been injured by yonresidents engaged in an activity that the State treats as exteptional and subject to special regulation.’’ (at p. 252) Whether a state actually has a public policy is some- times determinable, as we contend it is in Florida, by — referente to other portions of.its law. Thus, in Hughes v. Fetter, 341 U. S. 609 (1951), the Wi iscoysin Supreme Court had held that a statute creating a right of action for deaths caused within the sfate established a public policy against suits brought under the wrongful death acts of other states. The Court disagreed with the state court as to strength of the Wisconsin policy, saying: **We hold that Wisconsin’s policy must give way. That state has no real feeling of antagonism against - . 4 } era 28 wrongful death suits in general. To the contrary, a forum is MU dor hid provided for cases of this _ . nature, the exclusionary. rule extending only so far - as ta bar actions for death’ not caused locally.’ ? (at p. 612) In United Commercial sneti rs v. Wolfe;331 U. 8. 586 (1947), the Caurt addressed itself to ithe problem of ' whether South Dakota could apply its statute, in a case -involving a local contract, to invalidate a suit clause in a policy of a fraternal benefit society organized in Ohio. The claimed “existence of a South Dakota policy adverse to suit clauses was first examined. The Court pointed out that the general statutes of limitation of South Dakota varied from 20 vears to one year, that it required (as does Florida) a shortened contractual limitation in health or accident policies, that the South Dakota statutes have ex- pressed no hostility toward fraternal benefit societies and that ‘‘the alleged prohibition by South Dakota of such a contractual limitation as is contained in § 11 and the public policy of South Dakota against such limitations depend enfirely upon its statute directed generally against con- -fractual limitations upon rights to sue upon contracts * * *** (at p. 612). The Court refused.to reeognizé the existence éf a sufficiently strong local policy based on such general statute. Closely related to the apparent absence of any Florida policy with respect to suit clauses, is the significant fact that its legislature has exhibited no intention that the statute have extraterritorial scope, It is submitted that the proper construction of Section 95.03 would limit its. appli- eability to contracts made within the state. Respondent’ s ‘position in that regard will be fully developed in its next point which concerns itself with whether or not, under Florida law, the statute applies to-its contract. Reference » to the question of ‘interpfetation becomes relevant here, as part of the discussion of constitutional issues, by virtue of a controlling principle many times announced by the Court. % \/ 29 4 ‘*It is elementary when the constjtutionality of a statute is assailed, if the statute be reasonabl stsceptible of two interpretations, by one of whic it would be. unconstitutional and by the other valid, . it is our plain duty tv adopt that construction which will save the statute frem.constitutional infirmity. * * * And unless this rule be considered as mean- ing that our duty isste tr 30 The discussion under Point I estahlishg? the follow ing principles: With respect to the requifement that. Florida’ must have a legitimate policy interest deemed worthy of | protection against a due process objection, it is glear that on the authority of Hartford Accident & Indemnity Co. v Delta d Pine Land Co., supra, no such vital policy inteest _ exists here. Furthermore, none of the cases decided after Delta & Pine‘which invalidate a foreign insurance contract, ~ legal where made, overrule the holding in Delta € Pine. The policy interest which was deemed worthy of protection in such cases was not simply the safeguarding of a resident against a shorter suif‘clause, in a euntract to which-he y as a party, but involyget the vital importance of: affording a local remedy for persons injured within the borders of the forum state. Hgithermore, even assuming the policy Atiterest of the forum was deemed w orthy of protection in . \the case at issue, Florida has failed to enunciate any such policy in sufficient terms for it to have an invalidating extra- \ territorial effect. None.of the cases which upheld the forum interest based such interest on a non-specific statute such as the statute involved in this case. Moreover, the ° approval of similar suit clauses under the authority con- ferred on the Insurance Commissioner of the state-by the Florida Insurance Code belies the existence of any scl , policy within its borders. Consequently, the Court cannot “he called upon to create out of the general statute invoked . here a local policy of Florida which is designed to outlaw ' suit clauses i foreign insuxance contracts. of Illinois. The Court of Appeals for the Fifth ‘Circuit diseussed Fla. Rev. Stat., “§ 95.03 (1957), stating ‘‘that the juris- prudence of Florida gives ‘us*reason'to believe that the ‘Florida State Courts would construe it as being inapplicable under these cireumstances’’ (R. 30-31), but concluded that it was not obliged to decide the question because the requirements of due process would in any event prevent appReation of the Florida statute to theycontract at bar. Respondent’s @@ufention that the statut is -inapplicable under the law of Florida has therefore ot been passed upon, and if the Court should disagree with the Court of Appeals on the constitutional issue, the question will then arise as to whether the case is to be remanded/to the Court of Appeals for a determination with respect to the law of Florida on the interpretation of the statute (and also with respect to respondent's contention that the policy does not cover the-kind of luss-which took place). Huddleston v. Dwyeér, 322 U, S232, 237 (1948) ; United States v. Ballard, 322 U. S. 78, gs (1943); Rosgpthal v. New York Life Ins. Co., 304 U.S. 263, 264 (1938) 7 Ruhlin v. New York Life Ins. Co., 304 U. S. 202, 208-: 209 (1938). Since the Court may, if it chooses, make a determination on the two questions not passed on by the Court of Appeals reste not presented to it by the petition for certiorari, resp ‘) will dua arguments on both issues. Wall- ingfv. General Industkies Co., 380 U. S. 545, 547 (1947) ; Langnes ©. Green, 282 USS, 531, 535-39.(1931) ; Story Parch- ment Co. v. .Paterson. Parchment Paper Co., 282 U. S. 555, 560 (1931). eT : $32 ie Tp the extent that the question of interpretation of Florida’s Sectton 95.08 has been discussed in the previous - point in rejation to the constitutional questions, there will be no repetition here. Respondent will treat the statute as if there were no constitutional issue involved. It is the law of Florida that an insurance policy issued -in Illinois to a citizen of that state insuring personal prop- erty in that state, is an Illinois contract, the validity and ‘interpretation of which is determined by the law of Lllinois. Connor v. Elliott, 79 Fla. 513, 85 So. 164 (dietum), cert. dis- missed, 254 U.S. 665 (1920). It is the law of Illinois that the clause » limiting the time to-sue is valid and preseuts fe€ood defense under Ilinois law. Trichelle v. Sherman “€ Ellis, Inc., 259 I. App. 346 (1930) ; Hartzell v. Maryland Casualty Co., 163 Ill. App. 221 (1911); Radick v. Under-° writers at Lloyds, London, 137 F. 2d 21 (7th Gir. 1943): In avoidance of the defense, petitioner invokes Section | 95.03, a statute of general nature, dating back to 1913, which Weelares that ‘tall provisions and stipulations ¢on- tained any contract whatever * * *”? shortening the time’. to suf ‘*are hereby declared to be contrary to the public. poligy of this state, and to be illegal and’ void.’’’ There is nothing in the statute making it applicable to cont ets made outside of the State,of Florida. Construing - it to ply outside the state Si eH grafting an extra- territorial extension to the statute merely because it does not expressly restrict its operation to contracts made within * the state. The inquiry then is whether any such construe- tion would be rewsonable or justified. Interpreted in the light of the legitimate concerns of the Florida legislature, the statute could have been intended to govern only contracts made within the state. It is too obvious to require discussion that the Florida legislature could have had no conceivable interest ‘tin any contract whatever’? made in various of the 50 states in no way »> a ; . &. 7 : 33 o atiecting the welfare of the ¢itizens of Florida. Imputing any suc ‘+h intention to the Floriga legislature would be an absurdit¥. Adverting to a similar expression in a statute, Chief Justice Marshall in United States v. Palmer, 3 Wheat. (16 U.S.) 610, 680 (1818), said: ‘The words of the section are in terms of un- _ limited extent. Tht words ‘any person or persons,’ “are broad enough to comprehend ev ery human being. But general words must not’ only be limited to cases within the jurisdiction of the state, but also to those objects to which the legislature intended to apply them. Did the legislature intend to apply these words to thé subject of a foreign power, who in a foreign ship may commit murder or robbery On, the high seas? The author ities. generally agree that an -inttntion’ to legislate extraterritorially. bey ond the scope of legitimate interest will not be presumed: Griesemer v. Mutual Life fis. Co., 10 Wash. ie 38 Pae. 1031. (1894); Johnson. v. Mutual Life Ins, , 180 Mass. 407, 62 N. E. 733 (1902) ; Attorney General v. "Wetherlinds: Fire Ins. Co., 181:-Mass._, 522, 63 N. BE. 20 (1902). A Rhode Island ‘*dlireet ‘aétion? statute which sought -, to accomplish th® purpose of@he Louisiana statute involved: . in the Watson: case imposed its requirement on ‘‘every: poliey’ hereafter ‘written’’. The Rhode Island Supreme Court constried itvas applicable only to policies written in Rha island. . Coderre v. Travelers Ins. Co., 48 R. 1. 1523-136 Atl. 305 (1927). In accord: Aeding v. Travelers Ins. Co., 48 R. 1. 433, 188 Atl. 186 (1927); Ritterbusch v. _Sexmith, 256 Wis. 507, 41 N. W. 2d 611 (1950). No court in Florida has ever held that Section 95.03 applies to contracts made outside the state. The Supreme Court of Kentucky, where there was no statute but an wecaslonaaay 5 public pelicy against suit clauses in insurance : : aes | f 34 contracts, held the local policy inapplicable to an insur- ance contract made in another state. Union Central Life Ins. Co. v. Barnes, 175 Ky. 364, 194 S. W. 339 (1917). (ef. Galliher v. State Mutual Life Ins. Co,, 150 Ala. 548, 43 So. 833 (1907), where the Court erroneously assumed that it was merely concerned with deciding which statute of limitations should apply.) ° In Storing v. National Surety Co., 56 N. D. 14, 215 N. W. 875. (1927), the Supreme Court of North Dakota passed ' upon ‘a suit clause defense valid in Minnesota, where the defendant claimed the contract was made, but rendered invalid by a North Dakota statute which required a longer period within wRich suit was permitted. The court declared that it could not apply the statute if the contract had, in fact, been made in Minnesota. It was thus required to decide whether the contract had been made in Minnesota or in North Dakota. It found that the policy was, in fact, a North Dakota contract and overruled the defense. To the ext) ‘ that Florida has had oceasion to concern self with . extraterritorial applicability of its’ own statutes, it has consistently ruled against such extension. Equitable Life Assur. Soc. v. McRee, 75 Fla. 257, 78 So. 22 (1918), involved a life insurance policy issued in Alabama to a resident of that state, a later change of beneficiary while the insured was a resident of Georgia, after which the insured became a resident of Florida, where he lived until his death. A Florida statute made mandatory the distribution of policy proceeds to certain relatives. Accord- ing to the policy, it was payable to the insured’s estate, a provision valid under the law of Alabama and Georgia. The Florida Supreme Court said: ‘It is manifest that the statute can have no force bevohd the limits of this State. If, as averred’in the special pleas, the contracts of insurance were made in Alabama, and, if as averred, while the insured was a resident of the State of Georgia, he changed the 35 » beneficiary so as to make the policies payable to his exccutors, administrators, or assighs, the statute is not_applicable for the purpose of designating the partics to whom the proceeds of the policies may be paid by the insurer, though the insured afterwards died in Florida while he was a resident of and domiciled in this State, and though in such case the statute may pa ay the beneficiaries of the pro- 0 ‘ceeds of the } les."’ 735 Fla. at 265 In American Fire Ins. Co, v. King Lumber & Mfg. Co., 74 Fla. 130, 77 So. 168, aff’d 250 U. S. 2 (1919), the Florida Supreme Court passed upon the applicability of a Florida statute which provided without qualification that the person to whom the insured paid premiums was deemed to be the agent of the insurer for all purposes. The court said: ‘*Neither the Legislature nor the ‘courts of. Flor- ida could extend the operation of its statutes beyond its borders, and this is likewise true of Pennsylvania. s. The Legislature of Florida would seem to have made ' no such attempt.’’ (at p. 145) In accord: Sovereign tamp Woodmen of the World v. “Mixon, 79 Fla. 420, 84 So. 171 (1920). It is apparent from the Florida Supreme Court opinions cited above, as well as the better reasoned opinions of ‘other state courts faced with similar problems of inter- -pretation, that the Court of Appeals was correct in its belief that the Florida courts would not construe Section 95.03 to apply to foreign contracts. > bd *¢ 36 POINT III An “all risks” personal property floater covering -.all members of the family residing in the same house- hold does not insure one spouse against deliberate acts of the other. As heretofore mentioned, this point was not passed upon by the Court of Appeals. The personal property floater is a ‘‘family policy’’. Usually written in the name of the head of the family, in this case John Clay, its coverage attaches to all family mem- bers resident in the same household on property owned, used or worn by any of them. Listing the names of the members of the family is not required. In paragraph 7 of the policy (Pl. Ex. 1, R. 5, fol. 8), the insured declares the approxi- mate values in various categories of personal. possessions, some of which may be personal to the husband, some to the wife, some to*children. Much of the list is a mixture of household furniture, equipment and supplies which a. iayman regards generally as family property without a thought to the question of where legal.title may lie. While the specifically insured items of fur and jewéfry (PI. Ex. 1, R. 5, fol. 18) are obviously identifiable to Mrs. Clay, the policy as a whole makes tio distinction between members of the family. It constitutes a single insurance on &ll per- sonal property. The coverage is against all risks of loss or damage. This constitutes an undertaking to indemnify with respect to the occurrence of any fortuitous event which may result in loss or damage to the insured personal property. It is not intended to protect one spouse against the deliberate acts of the other stenwhing from marital discord. It is not intended to reimburse the husband against the loss of property taken by the wife, while still residing with him, which he is later pnable to retrieve within the framework 4 ¢ 37 of a divorce proceeding. It 1s not intended to reimburse the husband for damage to his personal effects spitefully . caused by the wife while they are still residing together. The limitations on the breadth of ‘‘ail risks’’ coverage - are not ordinarily susceptible of precise definition. In Pierce, “Devielesmecl of Comprehensive Insurance for the Household, pp-i6, 44 (S. 8S. Huebner Foundapion for = Insurance Kducation, University of Pennsylvania? 1958), ‘fall risk’? coverage is discussed: as follows: ‘The eyents imsured against are ordinarily termed perils or hazards because they are uninten- . tional, insofar as the imsured Is ‘concerued, and be- cause they produce loss. The definition of the perils insured against is accomplished by the use of one or more names inthe insuring agreement to connote ¢ such events and by such explanatory definitions, extensions, and exclusions as are needed to indicate any intended meanings which are not conveyed by the names alone. The names of perils may be of narrow significance, like the word ‘explosion,’ for * example, or they may have very general application, like the term ‘allrisks.’ In the former case, the list of perils assutyed is of primary importance; in the latter, it is the list of excluded causes of loss which is used to determine the true scope of the hazard coverage. However, it is important to note that even the expression ‘all risks’ does not include every possible cause of ne but only those which ——~——are-fortniteus-” *{at-p.16)— Bh toe * * * A risk implies a chance occurrence—a - fortuitous or unexpected event which results in loss. * * #9) (at p. 44) “ In discussing séme of the restrictions on the scope of ‘‘all risks,’’? the author deals with damage resulting from deliberate acts even though the Npicessaads was not intended by the insured. | “s¢* * * Tf the insured is one who is Working upon oe the property or subjecting it to some process, he ean hardly expect a loss caused by his own deliberate Ps Vion 38 act to be considered as due to a ie even though certain unexpected consequences are involved. If he soaked woolens in water to clean them, he should expect damage to follow. Such damage would not be due to a risk but to a misguided intentional action of the insured. Similarly, if the insured chose to wade through a puddle while wearing his shoes, any | resultant damage to them would be attributable to. ‘this deliberate action. a: Pierce, op. cit, supra, at 44-45, In 2 Richards on Insurance § 212 (5th ed. 1952) ‘‘all risk’’ coverage is.described as follows: ‘‘The All Risk type of insurance policy is unlike any other type of policy such as life, fire, marine, idelity and surety, or casualty, in that it does. not spegify the kind or kinds of Insured Event or Events which must cause loss or damage in order to ii ’ the insurer liable. The All-Risk policy is in ter ‘a promise to pay ‘upon the fortuitous and extraneous © happening of loss or damage to a specified thing or persons from any cause whatsoever. This type of contract has been said to cover every conceivable loss or damage that may happen except when occa- sioned by the wilful or fraudulent act or acts of the insured.’’ - (yy In Mellon v. Federal Ins. Co., 14 F. 2d 997, 1002 (S. D. N. Y. 1926), the court discussed various non-fortuitous . _losses held not covered under marine policies, such as losses caused by deliberately forcing a vessel through jee (New- town Creek Towing Co. v.. Actna Ins. Co., 163 N. Y. 114, d7 N. KE. 302 41900)) or resulting from the deliberate grounding of a ship for convenience in unloading (Magnus v. Buttenmer, 11 C. B. 876 (1852)). ‘Phe court concluded that part of the damage involved in that case was acci- dental and recoverable, wifile payt was disallowed as not being within the risk coverpd. The court said: ‘‘] have followéd the. English authorities, be- cause I think them right in holding that, even in an ‘afl risk’ policy, there must be a fortuitous event— a casualty—to give. rise to any liability for insur- ‘ ance.’’ (at p. 1004) 2 6 39 : “ . We are not here concerned with cases dealing with the insurer’s liability under a fire ipsurance policy insuring only the property of an innocent@nsured who is permitted to recover for damage by a fire deliberately set by a spouse.’ However, if the person seeking recovery set the fire him- self, he would be barred, notsbecause the insured:event did ‘not come to pass, but because it would be improper to permit a man to profit by his own wrong or because it would vio- late the fraud clause of the policy. Similarly, in a case ‘where the policy insures the interests of several people and one deliberately sets the fire, it has been held that the innocent insured may. not collect. ‘It is fundamental that an insured who delib- erately sets fire to the insured property cannot recover on a policy of fire insurance. To permit a » recovery under such circumstances would reward crime and shock the most fundamental notions of justice. To permit a.recovery by either the partner- ® ship or the unoffending partner upon a policy of insurance issued to a partnership insuring partner- ship property where one of the parties has wilfully fired the insured property is _ligewise repugnant to an intuitive sens&of justice.”’ , Bellman v. Home Ins. Co. of N. Y., 178 Wis. 349, 350, 189 N. W, 1028 (1922). See also Sternberg v. Merchants Fire Assur, Corp., 6 F. * Supp. 541, 545 (KE. D.- Wis. 1934). Wajere the policy is joint, it has been held that an inno- cent owner is precluded from recovery if the fire is delib- erately caused by the co-owner, Hostor vy, Continental Ins. \Co., 299 Mass. 601, 13 N. EB. 2d 423 (1958); Monaghan v. ‘Agricultural “Fire Ins. Co2, 538 Mich, 238, 18 N. W. 797 (1884); Bowers v. London Assur. Corp, 90 Pa. Super. 121 (1926): Bridges'v. Commercial Standard Ins. Co., 252 8. W. 2d 511 (Tex: Ct. Civ. App. 1952); Jones v. Fidelity & Guar- arty Ins. Corp., 250 8S. W. 2d 281 (Tex. Ct. Civ. App. 1952) ; Klemens v. Badacr Mutual Ins, Co. of Mileaukee, 10 Fire & Casualty Cases 218 (Sup. Ct. Wis., December 1, 1959). me 40 | Respondent urges that it is repugnant to sound public policy that an insurer who undertakes to protect a family against fortuitous damage should be expected to guar- antee that if marital discord should arise, neither spouse will make off with property belonging to the other’ or give vent to spiteful impulses by inflicting deliberate damage upon the property of the other. That is not a ‘‘risk’’ nor has it ever been regarded as an insurable occurrence with respect to which there is-sufficient actuarial experience to fix a proper premium. ~ \ CONCLUSION , It is respectfully submitted that the Court should - affirm the decision of the Court of Appeals holding that the statute may not be constitutionally applied so as to invalidate the contract in this case. If the Court were to hold that the statute may constitutionally be so applied, ee eee ee eee ee the respondent on the ground that (1) under the law of Florida the statute is inapplicable to the contract; ‘and (2) the loss is not covered by the contract; or in the alternative, the Court should remand the case for ‘a determination of the aforesaid questions of law, neither of which was previously passed on by the Court of Appeals. Evocenet A. Lemay, Attorney for Respondent, 116 John Street, ” ; New. York 38, New York. Bert Cottros, . ® Leonarp S. Dome, Horrense Moyyxp, Reix, Movuyo & Corroyr, v of Counsel. 4 Zn 41 Z APPENDIX | ! 2 { 1. One Year Suit Clauses: States which have adopted by statute, or by the Insurance Commissioner under au- thority of statute, the New York standard fire policy requiring a one year suit clause. ‘= Alabama Kentucky « Oklahoma . Alaska Louisiana © Oregon Arizona Maryland - Pennsylvania Arkansas Michigan Rhode Island - Colorado Mississippi South Carolina » Connecticut Missouri . South Dakota, — Delaware Montana Tennessee » District of Nebraska ° Utah 0 Columbia aig Vermont Florida New Hampshire - Virginia Georgia ‘New Jersey , Washington Hawaii. New Mexico West Virginia’ Tdaho New York Wisconsin Hlinois North Carolina Wyoming | lowa Ohio / 2. Variations: States which have adopted the New York standard form but have inereased the time within which suit must be brought. —— - Indiana — 3 years Kansas —« 5 years , Maine — 2 years North Pakota — 5 years 3. Special Forms: States which have adopted their own standard forms: lh xfonths California Massachusetts — 2 years Minnesota. — 2 years Texas — 2 years NOTE: In a few of the states listed the ie ong year suit clause may be rendered void by decisions applying invali- dating statutes to contracts issued within. the state. The above hist 1 relied upon not as’ being-definitive of the law © Nef any particular state, but as demonstrating that not only Hliners, but the overwhelming majority of states, do. not regard the one year suit clause as an evil, but, on the con- _frary, require its inclusion in fire policies issued im their states. ~ Certificate of Service a 6 ‘The undersigned, attorney for respondent, certifies that a true and correct copy of the foregoing frief for the re- spond¢nt has been served on W. Terry Gibson, Esq., 209 South/ Olive Avenue, West Palm Beach, Florida, attorney // for petitioner, by mailing air mail with postage prepaid, | _this 1 day of February, 1960. : Evcene A. Lemay, ' d = A - ~’ , ° The respondent implies that this statement, contained in a publication issued by the Insurance Commissioner of . Florida, establishes. the public policy of the State. of Flor-. ida on the question presented to the Court in the petition for certiorari. If the implication of the respondent has any merit, then the implication is that the legislative powers: have been delegated to an administrative officer not con- templated by the Constitution, and in fact in direct con- flict therewith. The Supreme Court of the State of Flor- J : ae ida, in the:case of Robbins v. Webb’s Cut Rate Drug Store, - 16 So.2d 121 (1944), definitely denied the right of ‘the Legislature to delegate its powers to an omnes of- ficer, and in said case held: ) . “In State v. Fowler, 94 Fla. 75, 114 So. 435, 437, this Court defined the rule t de the legislature in the promulgation: of statutes vesting the rule making power in administrative boards as follows: ‘The Legis-. lature may not delegate the power to enact a law or to declare what the law shall be, or to exercise-an un- restricted discretion in applying a law; but it may en- act a law complete in-itself designed to accomplish a general public purpose, and may expressly authorize ' designated officials within definite valid limitations to provide rules and regulations for the complete opera- ‘tion and enforcement of the law within its expressed general purpose.’ ”’ ' - See also Pursley v. City of Ft! Myers, 87 Fla. 428, 100 So. 366 (1942), wherein the Supreme Court of Florida used even stronger language regarding an attempted delega- tion of the powers of the Legislature: “Under the doctrine of the separation of the powers of government, the lawmaking function is assigned exclusively to the Legislature. The generally recog- nized rule is that any attempt to abdicate it in dny particular field, although valid in form, is unconstitu- tion nd void.” If, under the theory advanced by the respondent, the Insurance Commissioner by some act has attempted to es- tablish the public policy through the Insurance Code, then such act of the Insurance Commissioner: is totally uncon- stitutional and void. The, Insurance Commissioner does not have the power to establish public policy in the State of Florida. The Legislature of the State of Florida es- tablished the public policy of the State in reference to the “é 5 specific provision involved herein, when it enacted Section 95.03, Florida Statutes, 1959. The Legislature of the State of Florida is the only body which has the right to establish the public policy of thé State. The Supreme Court of Florida has set that quéstion at rest in any number of de- cisions, among which is Noble v. State, 68 Fla. 1, 66 So. 153 id (1914), wherein the court held: “The contention that the statute. is contrary to public policy is unavailing, since the Legislature de- -clares the public policy of the State’in enacting the Statute,” and in the case of Davis v. Spring, 191 So. 451 (1940), wherein the Court said: “Public policy, or what constitutes public policy, is a matter of legislative determination; it is embraced in the Constitution, legislative acts and ,judicial deci- et eo" Therefore, the Legislature of pie Stat of Florida, in the original enactment and retention upon the statute books of the State, of Section 95.03 established the public policy _ of the State as to the inclusion in contracts, including in- surance contracts, of the requirement that suits thereon must be started within a period of time less than that fixed — by the Statute of Limitations of the State of Florida. . The fact that the Insurance Commissioner of the State. of Florida has caused to he filed in this suit, through the Attorney General of the State, a brief as amicus curiae, definitely repudiates the contention on the part of the re- spondent that the Insurance Commissioner has established or attempted to establish, public policy contrary to the re- quirements of the statute in. question. The respondent seems to imply that since the Insurance Code does contain two provisions which apparently change the time for bring- ’ : ; 6 ing wu certain types of disability policjes, the entire _ policy of the State. of Florida has been changed. As a matter of fact, the inclusion in the Insurance Code of the two provisions referred to by the respondent, clearly shows - that the Legislature did not intend to allow the Insurance Commissioner of the State of Florida to act on his own initia-— tive in setting the policy of the State. Where the legislature intended that a change be made, then it wisely enacted a law making the change. If the Legislature had intended to change.the public policy in reference to all insurance policies, then it would have included in the Insurance Code a section so stating the change. On page 25 of its brief, referring to the twelve months limitation clause provided in the policy, the respondent says: “This is not .a provision fixing the period of time : in which suits may be institwted (Section 95.03) to a period less than that provided for by the statute of limitations of Florida. It may be less, it may be more, since the contract period runs from discovery of the loss, not from its inception.” Actually, the above statement is begging the question. The question is whether ‘this period does, in effect, fix the period of tiine in which suits may be instituted, at’a time less than that provided for by the Statute of Limitations of the State of Fiorida, and certainly not whether the time may be,less or may be more. . We feel that the attention of the court should be directed to the fact that at the time the insurance policy in- volved in this suit was entered into, the petitioner paid the premium in advance for three years. If, as is done in most cases, the premium had been paid annually, the sec- ‘ond premium ‘would have be@n paid in Florida, and the questions raised in this action would not have been perti- \ e \ 7 nent. Petitioner should not be penalized in this instance _ because he had sufficient funds with which to pay a three year premium, and thereby realize a discount from the respondent. The respondent benefited as much or more than did the petitioner by the payment of the premium for three years in advance. Since the petitioner moved to Florida within a short time after the payment of the pre- mium, he should not be penalized for an act that was bene- ficial to the respondent. POINT 2. Altheugh the Applicability of Section 95.03, Florida ‘ Statutes, to Contracts Made in Other States, Has Not Been Decided in the Florida Courts, the Coutt Below | Failed te Distinguish Between the Pronouncements of the Flerida Courts As to the Application of Florida Statutes or Public Policy to Contracts Valid in the State Where Made Which Dealt with Contracis Other Than Insurance and Contracts of Insurance. . The respondent cited certain cases where it claims the Florida courts have refrained from attempting to apply Florida statutes of public policy to contracts valid in the state where made, to-wit: Connvr v. Elliott, 79 Fla. 513, 85 So. 164, Cert. dismissed 254-U.S. 665 (1920); Sovereign Camp, Woodmen of the World, v. Mixon, 79 Fla. 420, 84 So. 171 (1920); Equitable Life Assur. Soc..of U.S.A. v. McRee, 75 Fla. 257, 78 So. 22 (1918); American Fire Ins. Co. v. King Lumber & Mfg. Co. 74 Fla. 130, 77 So. 168 (1917), aff'd 259 » U.S. 2 (1919). With the exception of Sovereign Camp, Woodmen “f the World, case, these cases deal with the substantive law. ‘The Sovereign Camp, Woodmen of the World, case, while dealing with Section 95.03, Florida Statutes, is not re- motely on point with the case at bar,.since it refers to a case > - law of the location of the property 8 where the policy was written in Florida by a Florida Agent for a Florida resident. This case simply confirm; ‘the constitutionality of Section 95.03, Florida Statutes. In . no part of its opinion does the Court refer to the applica- ‘tion of the Florida statutes to contracts — in the state where made. a The Connor v.. Elliott case’ deals entirely with real - property, and the Florida court held that contracts dealing with real estate or immovable property are subject to the 4 In the case at bar the intefests of the State of Florida are superior to any, other state because under the terms of © , the contract, worldwide floater insurance ‘policy, Florida became the place of performance of the contract, the place in which the loss occurred, and the state ‘of the policy- holder’s domicile at the time.of the loss. The insurance company was legally admitted to do business in the State ef Florida, was regulated in its business by Florida, and notice of loss was filed. with the insurance company in Florida. The remedy ‘under the policy could only be brought in Florida, and the coniract provision for the time of commencing suit on the contract of ‘insurance involved’ in this case relates to the procedure tobe followed in per- fecting a claim of loss as distinguished from the a tive contract provisions cel: ting to the coverage and policy limits. . Contracts of insurance aré a type of commercial trans- action affected with great blic interest, easi!v distin- guished from contracts relating to property generally. The Court of Appeals for the Fifth Circuit arbitrarily took the position that in the case of Galliher y, State Mutual Life Insurance Co., 150 Ala. 543, 43 So. 8f3 (1907), Supreme Court of Alabama had erroneously assumed that A it was concerned with deciding which statute of limita- tions should apply in that case. The respondent, in ‘its brief, repeats this assumption. The Galliher case is the . only case that we have been able to find that is directly ‘, . im point with the case at Bar, and it is simply the assump- tion of the pleader that the Alabama Supreme Court made an erroneous assumption. The decision of the court is "definite, and since the State of Alabama has a statute para- leiling that of Florida, it is evident that the Supreme Court of Florida would follow the decision of the Alabama court if a case under the same circumstances were presented to it. : . The respondent and the Court of Appeals have “at- tempted to place themselves in the position of the Su- preme:Court of Florida, .¢nd assume that the Supreme GUNS 6F CRD ENED eke @ Gading wal ts cquteny to Section 95.03 of the Florida Statutes, 1959. We call the court’s attention to the following state- “ment taken from 6 Fla. Jur.—Conflict of Law—page 195, See. 12: “It is only by courtesy, comity. and [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0255%3A3. Public record. Not legal advice.