Gerald Lesher, West Palm Beach, FL, for appellant.

John W. Thornton, Miami, FL, Mark F. Hughes, Jr., Newark, NJ, for appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before KRAVITCH and EDMONDSON, Circuit Judges, and EISELE*, Senior District Judge.

This is an appeal from a final judgment entered in this diversity action,1 the subject of which is an insurance coverage dispute. We have jurisdiction pursuant to 28 U.S.C.A. Sec. 1291 (West 1993). Following a bench trial, the district court entered judgment in favor of Massachusetts General Life Insurance Company (MassGen) on all counts of Vincent Fioretti's amended complaint. The court also entered judgment for MassGen on its counterclaims for recision of the disputed life insurance contract. Although we have problems with the legal analysis adopted by the district court, we nevertheless conclude that judgment was, as a matter of law, properly entered in favor of MassGen.2 As we are permitted to affirm the district court where the judgment entered is correct on any available legal ground, see Parks v. City of Warner Robins, 43 F.3d 609, 613 (11th Cir.1995); SEC v. Southwest Coal & Energy Co., 624 F.2d 1312, 1317 (5th Cir.1980),3 we AFFIRM.

With one crucial exception (which will be discussed later in this opinion), the basic facts underlying this dispute are largely undisputed.4

On November 10, 1986, Anthony Fioretti applied for $100,000 of life insurance with the Columbian Mutual Life Insurance Company (Columbian Mutual). This application, which was taken in New York City, indicated that Anthony Fioretti had not, within five years of the application date, experienced any serious medical problems. Nevertheless, he was required to submit to a blood test as a condition of his application. In January, 1987, Columbian Mutual was informed that Anthony Fioretti had tested positive for the Human Immunodeficiency Virus (HIV). Not surprisingly, Columbian Mutual rejected his application. Later in January, 1987, the results of the Columbian Mutual blood test were sent, at Anthony Fioretti's request, to Dr. Howard Siegel, a New York physician (and, presumably, one of Anthony Fioretti's treating doctors).

Undaunted by his experience with Columbian Mutual, Anthony Fioretti, on February 10, 1987, applied for $1,947,111 of life insurance with MassGen. However, on his MassGen application Anthony Fioretti represented his name as "C. Tony Fioretti" (his real name was Anthony C. Fioretti) and his date of birth as "3-6-47" (his real date of birth was September 6, 1948). He appears, however, to have correctly listed his Social Security Number as lmv-ie-efgca class="footnote" href="#fn5" id="fn5_ref">5 (the Social Security Number listed on his Columbian Mutual application was "XXX-XX-XXXX").6 Additionally, Anthony Fioretti indicated that he had not "within the past 3 years consulted a physician for an examination, blood or other medical tests, [or] treatment of any disease, condition, or other physical disorder." Anthony Fioretti's MassGen application stated that it would be effective as of August 30, 1986, and that the Shields & Warendorff Florist, Inc. Pension Plan would be the owner of this policy.7 The application stated that Vincent Fioretti (Anthony Fioretti's brother) would be the beneficiary of this policy, and listed Anthony Fioretti's place of residence as both New York City and Tamarac, Florida.

Anthony Fioretti's MassGen application indicated that it was taken by Stuart Kirsner, a broker associated with the New York-based insurance agency Kirsner, Stern & Slavutin, Inc.8 Although Mr. Kirsner was not licensed to sell insurance in Florida,9 the application indicated that it was completed in Tamarac, Florida. As a pre-condition for its approval of this application, MassGen required Anthony Fioretti to undergo a blood test for the HIV virus. Anthony Fioretti agreed, but because he knew that he was HIV-positive, in June, 1987 he arranged for an imposter's blood to be tested under his name at the Spring Medical Group in New York City.10 This test indicated that the blood submitted for testing, namely that of the imposter, had reacted negatively for the HIV virus. Despite this favorable result, MassGen ultimately refused to approve Anthony Fioretti's application, because Mr. Kirsner was not licensed to do business in Florida and the application indicated that it had been completed in that state.

Following this rejection, Anthony Fioretti submitted a second life insurance application to MassGen on September 8, 1987. This application indicated that it was taken by Ina Stern,11 another broker associated with Kirsner, Stern & Slavutin. The terms of this second MassGen application (e.g., the amount of insurance, the policy's effective date, the beneficiary, etc.) were substantially similar to the original application, as were the misrepresentations concerning Anthony Fioretti's identifying information and medical history. However, in contrast to the former MassGen application, the latter indicated that it was completed in Newark, New Jersey,12 a state in which Ms. Stern was licensed to sell insurance.13

Because this second application was submitted shortly after the results of the above-described blood test were made available, MassGen did not require Anthony Fioretti to undergo a separate HIV test in connection with this application. Instead, after a review by its Colorado office, MassGen advised that it would approve this application, provided that, in lieu of a second HIV test, Anthony Fioretti would be required to execute a Statement of Good Health and Insurability (Statement of Good Health), which he did. This Statement of Good Health, which was executed in New Jersey on September 25, 1987,14 represented that Anthony Fioretti was "in good health," that he had "not made an application for insurance which ha[d] been declined, postponed, or modified," and that he had "not consulted or been examined by a physician or practitioner" prior to executing the Statement of Good Health. However, at the time he completed this Statement of Good Health, Anthony Fioretti knew: (1) that he was HIV-positive; (2) that he had previously been declined life insurance by another carrier (Columbian Mutual); and (3) that he had previously consulted with at least two doctors concerning his HIV status. In short, every representation made by Anthony Fioretti in the Statement of Good Health was false.15

After completing the Statement of Good Health (and thereby securing insurance coverage), Anthony Fioretti timely paid all of the premiums required under the policy. Shortly thereafter, on December 14, 1987 Anthony Fioretti applied to MassGen for a "Waiver of Premium," which would have relieved him from having to pay any premiums during any period of total disability. Although Anthony Fioretti stated on this application that, "[t]o the best of [his] knowledge and belief," he did not "have any physical disease or disorder," he was nevertheless required to undergo a second HIV test in connection with this application. In April, 1988, he again managed to have an imposter's blood submitted for testing, and once again this blood tested negative for the HIV virus. On the strength of this test result and Anthony Fioretti's execution of a second Statement of Good Health, MassGen approved Anthony Fioretti's Waiver of Premium. This waiver never went into effect, however, because Anthony Fioretti declined to pay the necessary premium.

On February 28, 1989, Anthony Fioretti died while domiciled in Florida. The cause of death listed on his death certificate was Acquired Immune Deficiency Syndrome (AIDS).16 In April, 1989, Vincent Fioretti filed a claim with MassGen as the beneficiary of the death benefits under Anthony Fioretti's life insurance policy. In December, 1989, MassGen denied Vincent Fioretti's claim and tendered the premiums paid under the policy, but this tender was rejected by Vincent Fioretti's counsel. Later that month, MassGen commenced an action in the Superior Court of New Jersey seeking rescission of this policy, but this action was dismissed on June 1, 1990 for lack of personal jurisdiction over Vincent Fioretti. Soon thereafter, Vincent Fioretti commenced an action in the Circuit Court of Florida seeking to recover the death benefits under the policy. On July 5, 1990, MassGen removed this action to the district court and filed its counterclaims seeking rescission.

In support of its claims for rescission, MassGen argued that since Anthony Fioretti had committed fraud in securing his life insurance policy, viz, by misrepresenting his HIV-positive status and by using an imposter's blood to avoid detection, it should be relieved of its obligations under the policy. Vincent Fioretti, however, argued that under the policy's incontestability clause, MassGen was precluded from disclaiming coverage for any reason--including fraud--other than non-payment of premiums. The relevant clause provides as follows:

This policy will be incontestable after it has been in force during the lifetime of the insured for 2 years from the date of issue except for non-payment of premiums.

Vincent Fioretti further argued that since the policy stated that its effective date was August 30, 1986, the two-year period of contestability had lapsed prior to Anthony Fioretti's death on February 28, 1989,17 and that accordingly he was entitled to the policy's death benefits. The district court agreed with MassGen and concluded that an "imposter defense" exists which removes the bar on coverage disputes otherwise imposed by an incontestability clause. Accordingly, the district court entered judgment in favor of MassGen and rescinded the policy.

There is little doubt that this dispute presents, on its face, a conflict-of-laws problem, namely whether the governing law is to be supplied by New York, New Jersey, or Florida.18 The district court recognized this problem, but ultimately concluded that it "need not resolve the choice of law question ..., because [the court found] that neither New York, New Jersey, nor Florida law bars proof of imposture [as a defense in an insurance coverage action] despite the existence of an incontestability clause."19 Accordingly, the district court found it unnecessary to undertake any formal conflict-of-laws analysis in order to determine the controlling law. Instead, the district court appears to have followed a conflict-of-laws principle that has been applied to this species of "false conflict" cases.20 Simply stated, this principle is that, when the laws of the competing states are substantially similar, the court should avoid the conflicts question and simply decide the issue under the law of each of the interested states.21 See Bonar v. Dean Witter Reynolds, Inc., 835 F.2d 1378, 1387-88 & n. 17 (11th Cir.1988); accord Lucker Mfg. v. Home Ins. Co., 23 F.3d 808, 813 (3d Cir.1994). We review conflict-of-laws issues de novo. Shapiro v. Associated Int'l Ins. Co., 899 F.2d 1116, 1118 (11th Cir.1990); American Family Life Assurance Co. v. United States Fire Co., 885 F.2d 826, 830 (11th Cir.1989).

In order to determine whether the district court answered the conflict-of-laws question properly, it appears that we must first decide whether the court correctly interpreted the law of New York, New Jersey and Florida on the controlling legal question, i.e., whether these states recognize the "imposter defense" in life insurance coverage actions involving an incontestability clause.22 We review the district court's interpretation of state law de novo. Salve Regina College v. Russell, 499 U.S. 225, 231-33, 111 S. Ct. 1217, 1221-22, 113 L. Ed. 2d 190 (1991); Insurance Co. of N. Am. v. Lexow, 937 F.2d 569, 517 (11th Cir.1991).

As the district court below correctly recognized, neither the Supreme Court of Florida, the Supreme Court of New Jersey, nor the New York Court of Appeals have ever addressed the question whether their respective jurisdictions recognize the "imposter defense." Indeed, there is presently not a single reported decision from any state court in these jurisdictions addressing this precise legal issue.23 This fact alone counsels against the district court's treatment of the conflict-of-laws issue presented by this case. In the total absence of any relevant precedent, it becomes necessary to attempt to prognosticate how these state courts would resolve the "imposter defense" issue. See Towne Realty, Inc. v. Safeco Ins. Co. of Am., 854 F.2d 1264, 1269 n. 5 (11th Cir.1988); Wammock v. Celotex Corp., 835 F.2d 818, 820 (11th Cir.1988). However, without any such precedent it is, quite simply, impossible to say with certainty what the law of these states actually is, not to mention whether these states' laws are identical. Accordingly, we choose not to follow the analytical approach adopted by the district court. Rather, in a case such as this we believe that the more prudent course is for the court to undertake a traditional conflict-of-laws analysis, determine the controlling law, and then attempt to answer the relevant legal question under the law of that state. See Day & Zimmerman, Inc. v. Challoner, supra, 423 U.S. at 4-5, 96 S. Ct. at 168. This approach reduces the likelihood that an error of state law will infect the proceeding, since the court will only be required to interpret the unsettled law of one jurisdiction. Cf. Delahanty v. Hinckley, 845 F.2d 1069, 1070 (D.C.Cir.1988) (a federal court sitting in diversity should refrain, as much as possible, from speculating on unsettled questions of state law); Melville v. American Home Assurance Co., 584 F.2d 1306, 1311 n. 7 (3d Cir.1978) (same).

Since this is a diversity action, we are required to apply the substantive law of the forum state, namely Florida, Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), including its conflict-of-laws rules. Klaxon Co. v. Stentor Elect. Mfg. Co., 313 U.S. 487, 496, 61 S. Ct. 1020, 1021, 85 L. Ed. 1477 (1941); Bryan v. Hall Chem. Co., 993 F.2d 831, 834 (11th Cir.1993). When resolving conflict-of-laws issues in contract actions, the Florida Supreme Court has unambiguously indicated its intent to reject the more modern (and flexible) "significant contacts" analysis of the second Restatement of the law of conflicts,24 or the "center of gravity" analysis first pioneered by the New York Court of Appeals,25 choosing instead to adhere to the traditional rule of lex loci contractus. Goodman v. Olsen, 305 So. 2d 753, 755 (Fla.1974); accord Walling v. Christian & Craft Grocery Co., 41 Fla. 479, 27 So. 46, 49 (1899). The doctrine of lex loci contractus directs that, in the absence of a contractual provision specifying the governing law,26 a contract (other than one for the performance of services) is governed by the law of the state in which the contract is made, i.e., where the last act necessary to complete the contract is done. Equitable Life Assurance Soc'y of the U.S.A. v. McRee, 75 Fla. 257, 78 So. 22, 24 (1918); Lacy v. Force V Corp., 403 So. 2d 1050, 1056 (Fla.Dist.Ct.App.1981); Jemco, Inc. v. United Parcel Serv., Inc., 400 So. 2d 499, 500 (Fla.Dist.Ct.App.1981), review denied, 412 So. 2d 466 (Fla.1982); see also Robert A. Leflar, Luther L. McDougal, III & Robert L. Felix, American Conflicts Law Sec. 145 at p. 145-46 (4th ed. 1986). The Florida Supreme Court has not recently had occasion to apply this doctrine in the context of a life insurance dispute. However, the Florida court has expressly held that the principle of lex loci contractus applies to automobile insurance contracts, Lumbermens Mut. Casualty Co. v. August, 530 So. 2d 293, 295 (Fla.1988); Sturiano v. Brooks, 523 So. 2d 1126, 1129-30 (Fla.1988), concluding that because ours is a migratory society, Florida's public policy favors a rigid conflict-of-laws rule in such disputes, and counsels against a more flexible rule that could possibly "allow one party to modify the contract simply by moving to another state," since such a rule "would substantially restrict the power to enter into valid, binding, and stable contracts."27 Sturiano v. Brooks, supra, 523 So.2d at 1130. Since this rationale applies with equal (if not greater) force to contracts insuring the life of an automobile's driver (or passenger) as it does to contracts insuring the automobile itself, we have little doubt that, under Florida law, the lex loci contractus doctrine also applies to the life insurance policy at issue in this dispute.28 Confederation Life Ass'n v. Vega Y Arminan, 207 So. 2d 33, 36-37 (Fla.Dist.Ct.App.), aff'd and cert. discharged, 211 So. 2d 169 (Fla.), cert. denied, 393 U.S. 980, 89 S. Ct. 450, 21 L. Ed. 2d 441 (1968); see also Santovenia v. Confederation Life Ass'n, 460 F.2d 805, 809-10 (5th Cir.1972) (applying Florida conflicts law).

In this case, MassGen agreed to underwrite Anthony Fioretti's life insurance policy, contingent only upon his execution of the Statement of Good Health. Since MassGen expressly conditioned its approval of Anthony Fioretti's application on this one event (as opposed, to say, his tendering of the first required premium),29 we agree with the parties' mutual position, as expressed during oral argument, that the execution of the Statement of Good Health was the last event necessary to complete this contract. See Equitable Life Assurance Soc'y of the U.S.A. v. McRee, supra, 78 So. at 24. Therefore, since this Statement of Good Health was executed in New Jersey, we conclude that, under Florida's conflict-of-laws rules, New Jersey's substantive insurance law governs this dispute.30

Under New Jersey law, an insurer is required to include an incontestability clause in any policy of life insurance. N.J.Stat.Ann. Sec. 17B:25-4 (West 1985) provides:

There shall be a provision that the policy (exclusive of provisions of the policy or any contract supplemental thereto relating to disability benefits or to additional benefits in event of death by accident or accidental means or in event of dismemberment or loss of sight) shall be incontestable, except for nonpayment of premiums, after it has been in force during the lifetime of the insured for a period of 2 years from its date of issue.

As Vincent Fioretti correctly points out, the incontestability clauses contemplated by such statutes are generally construed as statutes of limitations that, upon expiration, preclude all coverage defenses, including fraud. See generally 18 George J. Couch, Ronald A. Anderson & Mark S. Rhodes, Couch Cyclopedia of Insurance Law Secs. 72:70 to 72:76 (2d ed. rev. ed. 1983); 1A John Alan Appleman & Jean Appleman, Insurance Law and Practice Secs. 332 to 334 (1981). This principle found support in some early New Jersey cases. See Prudential Ins. Co. of Am. v. Connallon, 154 A. 729, 730 (N.J.Ct.Err. & App.1931); but see Metropolitan Life Ins. Co. v. Tarnowski, 20 A.2d 421, 423-24 (N.J.Ct.Err. & App.1941). However, in a recent decision involving the incontestability clause of a life insurance policy governed by Sec. 17B:25-4, the New Jersey Supreme Court explicitly stated that this statute does not prevent a life insurer from denying coverage when its insured has committed fraud in securing coverage. The New Jersey court explained:

Even after the expiration of the contestability period, an insurer may deny a claim if the insured committed fraud in the policy application. Paul Revere Life Ins. Co. v. Haas, 137 N.J. 190, 644 A.2d 1098 (1994). To rescind a policy, an insurer need not show that the insured actually intended to deceive. Massachusetts Mut. Life Ins. Co. v. Manzo, 122 N.J. 104, 114, 584 A.2d 190 (1991). Even an innocent misrepresentation can constitute equitable fraud justifying rescission. Metropolitan Life Ins. Co. v. Tarnowski, 130 N.J.Eq. 1, 3-4, 20 A.2d 421 (E. & A. 1941).

Ledley v. William Penn Life Ins. Co., 138 N.J. 627, 651 A.2d 92, 95 (1995).31

Since New Jersey law permits an insurer to rescind even when its insured has committed an innocent misrepresentation, it seems obvious that New Jersey law would also recognize the "imposter defense," as the fraud in such a case is far more egregious. In any event, we need not resolve this question. It is undisputed that Anthony Fioretti knowingly misrepresented his HIV-positive status, as well as other health-related information, in both the final policy application and the Statement of Good Health. Thus, under New Jersey law, these misrepresentations, which were undoubtably material to the underwriting process, plainly constitute a sufficient basis to support MassGen's denial of Vincent Fioretti's claim and its rescission of the disputed policy, even if it is assumed that the contestability period expired prior to Anthony Fioretti's death. See id. at 651 A.2d at 95-97; see also Paul Revere Life Ins. Co. v. Haas, 137 N.J. 190, 644 A.2d 1098, 1106-08 (1994) (even after lapse of contestability period, a health insurer may deny coverage based on insured's nondisclosure of a serious illness in his insurance application); Johnson v. Metropolitan Life Ins. Co., 53 N.J. 423, 251 A.2d 257, 263-67 (1969) (rescission authorized when insured knowingly misrepresents material health information to health insurer); Urback v. Metropolitan Life Ins. Co., 32 A.2d 337, 338-39 (N.J.Ct.Err. & App.1943) (same when misrepresentations made to life insurer). Accordingly, the judgment of the district court is

AFFIRMED.