Filed: Aug. 11, 2011
Latest Update: Mar. 02, 2020
Summary: [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS _ ELEVENTH CIRCUIT AUG 11, 2011 No. 09-15690 JOHN LEY CLERK _ D. C. Docket No. 08-00377-CV-ORL-22-GJK STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff- Counter-Defendant- Appellee, versus ANNA N. DUCKWORTH, Personal Representative of the Estate of Aquila E. Duckworth, Defendant- Counter-Claimant- Appellant. _ Appeal from the United States District Court for the Middle District of Florida
Summary: [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS _ ELEVENTH CIRCUIT AUG 11, 2011 No. 09-15690 JOHN LEY CLERK _ D. C. Docket No. 08-00377-CV-ORL-22-GJK STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff- Counter-Defendant- Appellee, versus ANNA N. DUCKWORTH, Personal Representative of the Estate of Aquila E. Duckworth, Defendant- Counter-Claimant- Appellant. _ Appeal from the United States District Court for the Middle District of Florida _..
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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUG 11, 2011
No. 09-15690 JOHN LEY
CLERK
________________________
D. C. Docket No. 08-00377-CV-ORL-22-GJK
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Plaintiff-
Counter-Defendant-
Appellee,
versus
ANNA N. DUCKWORTH,
Personal Representative of the
Estate of Aquila E. Duckworth,
Defendant-
Counter-Claimant-
Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 11, 2011)
Before TJOFLAT, CARNES and HILL, Circuit Judges.
TJOFLAT, Circuit Judge:
This appeal sits at the intersection of our summary judgment jurisprudence
and Florida’s choice of law rules. The defendant, Anna N. Duckworth (“Anna”)
and her husband, Aquila E. Duckworth (“Aquila”), purchased two automobile
insurance policies and one motorcycle insurance policy from the plaintiff, State
Farm Mutual Automobile Insurance Company (“State Farm”), while they were
Maryland residents. All three insurance contracts contained “anti-stacking”
provisions that precluded the Duckworths from recovering uninsured motorist
benefits under any policy other than that covering the damaged vehicle. Maryland
law explicitly permits the use of such anti-stacking provisions in insurance policies
without the informed consent of an insured.
The Duckworths subsequently moved to Florida, where Aquila was struck
and killed by an uninsured motorist while driving the motorcycle covered under
the Maryland policy. State Farm immediately paid Anna, as representative of
Aquila’s estate, the uninsured motorist benefits called for by that policy, $100,000,
but, citing the anti-stacking provisions, later denied Anna’s claim for benefits
under the two automobile policies. State Farm then brought this action in the
district court, seeking a declaratory judgment that it had satisfied its contractual
2
obligations to Aquila’s estate.1 Anna answered State Farm’s complaint, asserted
affirmative defenses, and counterclaimed for breach of contract.2 She alleged that
the policies should be construed under Florida, and not Maryland, law. Because
Florida law prohibits the use of anti-stacking provisions absent the insured’s
informed consent, and because neither Anna nor Aquila had given their informed
consent, Anna argued that Aquila’s estate should be entitled to recover uninsured
motorist damages on all three policies.
At issue before the district court was the applicability of the public policy
exception to Florida’s choice of law rule in disputes over contract terms. Since
Florida follows the rule of lex loci contractus—that is, Florida courts apply the law
of the jurisdiction in which the contract was entered into—the parties conceded
that, absent the exception, Maryland law would control and State Farm would be
entitled to declaratory relief. See State Farm Mut. Auto. Ins. Co. v. Roach, 945 So.
2d 1160, 1163 (Fla. 2006) (explaining that an insurance contract is entered into in
the state in which the contract was issued and delivered).
The public policy exception demands that Florida law control whenever the
State has (1) a paramount public policy interest in the application of its own law
1
The district court had jurisdiction under 28 U.S.C. § 1332.
2
Anna asserted various other counterclaims not at issue here, including one for contract
reformation and another for breach of fiduciary duty.
3
and (2) a citizen in need of protection.3 Id. at 1164–65. Whenever an insurance
contract is at issue, it is also necessary that the insured party seeking to benefit
from the exception satisfy a third prong: the insured must provide the insurer with
reasonable notice “of a permanent change of residence,”
id., such that the insurance
risk would thereafter be “centered in Florida,” Gillen v. United Servs. Auto.
Assoc.,
300 So. 2d 3, 7 (Fla. 1974). The third prong’s reasonable notice
requirement is meant to “inform[] the insurer of which state’s law will govern the
policy” and turns on the clarity with which an insured expressed his intent to make
Florida his permanent home. Roach,
945 So. 2d at 1165. Because “the public
policy exception is intended to be narrow,” it displaces Florida’s lex loci rule only
when all three prongs of the exception, including the reasonable notice
requirement, have been satisfied.
Id. at 1167.
Following discovery, State Farm and Anna filed cross-motions for summary
judgment on State Farm’s request for declaratory relief under Federal Rule of Civil
Procedure 56, and State Farm sought summary judgment on Anna’s counterclaims.
The district court granted summary judgment to State Farm on all claims. In
3
In this opinion, we refer generally to the “public policy exception” or the “exception”
as well as to the exception’s individual prongs. The exception’s third prong requires what we
refer to as “reasonable notice,” where “reasonable notice” is notice by the insured to the insurer
that the insured is permanently residing in Florida and subject to the protection of Florida law.
See State Farm Mut. Auto. Ins. Co. v. Roach, 945 So. 2d 1160, 1164–65 (Fla. 2006)
4
addressing State Farm’s motion for declaratory relief, the court found for State
Farm on each of the three prongs of the public policy exception, holding that (1) no
paramount public policy required the application of Florida law, (2) the
Duckworths had yet to establish themselves as Florida citizens, and (3) State Farm
was not given reasonable notice that Florida law would govern the Duckworths’
policies. The court then declared that State Farm had satisfied its contractual
obligations to Aquila’s estate and dismissed Anna’s counterclaims.
Anna now appeals.4 She claims that issues of material fact remain that
preclude summary judgment on each of the exception’s three prongs. Of particular
importance to this appeal, Anna argues that it is disputed whether she informed a
State Farm representative that her and Aquila’s move to Florida was “permanent.”
She suggests this is a material question of fact that must be resolved before any
judgment may issue.
We disagree and affirm. Taking into account all of the undisputed facts, and
assuming that Anna informed a State Farm representative that the Duckworths’
move would be “permanent,” State Farm still did not receive reasonable notice
sufficient to trigger the public policy exception. In fine, even if Anna informed the
representative as alleged, her later actions overwhelmingly indicated to State Farm
4
We have jurisdiction pursuant to 28 U.S.C. § 1291.
5
that the Duckworths’ move to Florida was not necessarily permanent and that,
consequently, Maryland law would continue to govern the Duckworths’ policies.
The issue of fact upon which her appeal rests is therefore immaterial and, as State
Farm was deprived of reasonable notice, judgment as a matter of law was proper.
I.
The undisputed record evidence establishes the following facts.5 In 1989,
Anna moved to Edgewater, Florida, with her mother, her two daughters, Nikki and
Falon, and her youngest sister. There, in 1996, Anna met Aquila. They married in
October 1998, while Aquila was in Navy training in Illinois. At that time, they both
had Florida drivers’ licenses and were registered to vote in Florida.
In December 1998, the Duckworths left Edgewater for San Diego, California,
where Aquila was to be stationed. At that time, they owned one vehicle, Aquila’s
1971 Cadillac Deville. Anna rented a San Diego apartment for her, Aquila, and her
two daughters beginning in January 1999. By July of that year, they had insured the
Cadillac with a local State Farm agent, Jack Dale, and added a second autmobile
policy for a newly-purchased Ford Probe. As Anna understood them, these “full
5
In reviewing a summary judgment, we consider the evidence in the light most
favorable to the non-movant. Centurion Air Cargo, Inv. v. United Parcel Serv. Co., 420 F.3d
1146, 1149 (11th Cir. 2005). Thus, in stating the facts, we afford Anna, the non-movant, all
credibility choices and the benefit of all reasonable inferences the facts yield. Latimer v.
Roaring Toyz,Inc.
601 F.3d 1224, 1237 (11th Cir. 2010).
6
coverage” policies were consistent with the California insurance “requirements”
Dale described to her. In 2001, after purchasing a Yamaha V-Star Classic
motorcycle, the Duckworths purchased a third (motorcycle) policy as well as a
renters’ insurance policy from Dale’s State Farm agency. All of the Duckworths’
policies were paid by automatic draft from their joint checking account at the North
Island Federal Credit Union in San Diego.
While in San Diego, Anna and Aquila received mail from the Florida
Department of Highway Safety and Motor Vehicles notifying them that they needed
to renew their Florida drivers’ licenses. Anna completed the required forms over
the Internet, and she and Aquila received their renewed licenses shortly thereafter.
Though issued by the Florida agency, the renewed licenses listed the Duckworths’
San Diego address as their place of residence. All three vehicles—the Cadillac, the
Ford, and the Yamaha motorcycle—were registered in California and had
California tags.
In 2003, Aquila requested a transfer from his post in California. He was
thereafter assigned to the National Naval Medical Center in Bethesda, Maryland, as
a military police officer. Before the Duckworths left for Maryland, Anna notified
Dale of their impending move and cancelled their renters’ insurance policy. At that
time, Dale informed Anna that, once settled, she should get in touch with a State
7
Farm agent in Maryland, and he offered to find an agent for her if she needed one.
The Duckworths left San Diego in March 2003. They took with them the
Probe and the motorcycle; the Cadillac was left behind and presumably sold. In
April, Anna and Aquila moved into a Germantown, Maryland, apartment with
Falon; Nikki, had moved from California to Florida. Anna got herself, Aquila, and
Falon settled, but never asked Dale to find her a Maryland State Farm agent.
Instead, within “a month or two,” Anna found the phone number for the Connie
Davis State Farm agency in a phone book advertisement and called to request a
renters’ insurance quote. While on the phone with a Davis agency representative,
Anna also obtained an automobile and motorcycle insurance quote. She then went
to the agency’s office and applied for insurance on the Probe and the motorcycle.
She did not purchase renters’ insurance at that time. While at the agency office,
Anna submitted her and Aquila’s (Florida) drivers’ licenses to be copied and also
provided the agency representative with VINs for the Probe and the motorcycle.
The Connie Davis agency issued policies for both vehicles that fully complied with
Maryland insurance requirements.
The Duckworths paid the same amount for their Maryland policies as they
had for their California policies, and they received approximately the same “full
coverage” as in California. State Farm billed the Duckworths for their Maryland
8
policies on the 15th of every month. Once again, payment was automatically
debited from Anna’s and Aquila’s joint checking account at the North Island Credit
Union in California.
On January 6, 2004, State Farm sent notice to Aquila, the principal insured
on all of the Duckworths’ policies, that under Maryland law he—and any family
member who might operate an insured vehicle—must immediately obtain a
Maryland drivers’ license and discard the Florida license then on file with State
Farm. The notice gave Aquila sixty days to provide State Farm with a new drivers’
license number demonstrating that he had complied with the notice. Aquila ignored
the notice and did not share it with Anna. Consequently, neither obtained a
Maryland license. Nor did they ever register to vote in Maryland.
Anna’s principal contact at Connie Davis’ State Farm agency was Francesca
“Frankie” Whiting. As the Duckworths’ State Farm agent, Whiting handled Anna’s
subsequent application for and the issuance of a renters’ insurance policy with State
Farm. She also assisted Anna when, in 2005, the Duckworths acquired a 1998
Chevrolet Cavalier and insured it with the Connie Davis agency. At Anna’s
request, Whiting even met with Falon when Falon purchased a vehicle and insured
it, a Pontiac Trans Am, with State Farm.
9
In December 2004, Falon married and moved to Utah.6 Anna told Falon to
contact Whiting when she got to Utah to let State Farm know about her permanent
change in residence. Falon and her husband eventually obtained Utah insurance
through another carrier.
Aquila’s Navy enlistment was set to expire in May 2006, and he and Anna
decided that he would not reenlist. The Duckworths instead planned to move to
Florida, where Nikki lived. Once in Florida, Aquila would apply for a job with the
U.S. Marshals or the Fish and Wildlife Service while Anna found temporary
employment. Once Aquila found a job, he and Anna would move again, this time
to a place nearer his duty station, and Anna would then find permanent
employment.
Aquila’s enlistment expired on schedule in May. Anna then phoned the
Connie Davis agency and informed Whiting that she and Aquila would be moving
to Florida and would no longer need a Maryland renters’ insurance policy. At that
time, Anna gave Whiting Nikki’s Florida address (125 West Loop, Oak Hill, FL
32759) and told Whiting that she and Aquila would be staying there only
temporarily.7 Whiting understood from her conversation with Anna that State Farm
6
By this time, Falon had sold the Trans Am and purchased a Mercury Cougar. The
Cougar was also insured by State Farm through the Connie Davis agency.
7
It was during this conversation between Anna and Whiting that Anna allegedly stated
that her move to Florida would be permanent. During Anna’s deposition, counsel for State Farm
10
should, until further notice, send all future correspondence relating to the remaining
automobile and motorcycle policies to that address. Anna later personally visited
the agency office and drafted, on State Farm letterhead, a hand-written note
canceling the Duckworths’ Maryland renters’ insurance policy.
The Duckworths moved in with Nikki, leaving the majority of their
belongings at a storage facility near Nikki’s home. In June 2006, Anna requested
insurance quotes for the Probe, Cavalier, and motorcycle from her mother’s
insurance agent, Debbie Banks, at the Charlie Cobb State Farm agency in
Edgewater. The quotes Banks provided were, according to Anna, “exorbitantly
high,” about $100 a month more than what the Duckworths had paid for their
Maryland policies. Accordingly, though Banks informed Anna that the Duckworths
should “find a[] [Florida] agent,” Anna declined to purchase any Florida insurance
asked Anna how she had described her move to Florida. Anna responded that she had told
Whiting that she and Aquila would be living “[t]emporarily with my daughter[, but p]ermanently
in the State of Florida.” Whiting later testified that she did not remember Anna making that
statement, but that, if Anna had said something to that effect, it would have been her practice to
instruct Anna to immediately obtain Florida coverage.
A disputed issue of fact will preclude summary judgment if it is material to a legal claim.
A fact issue is material if it has the potential to alter the disposition of that claim. In this case,
the disputed issue would be material if a fact-finder, having found that Anna did indicate that her
and Aquila’s move to Florida would be permanent, would be justified in deciding this case in
favor of applying the public policy exception. If, however, we assume that Anna made the
disputed statement and nevertheless conclude that State Farm still had valid reason to doubt that
the Duckworths intended to permanently reside in Florida, the dispute is immaterial and
judgment as a matter of law proper. As indicated supra and explained infra, we conclude that
this latter scenario is the case. Consequently, it is unnecessary to decide this disputed issue of
fact to resolve this appeal.
11
at that time. Anna explained that, had she intended to settle in Edgewater, she
would have shopped around for more competitive rates.8 But, as she was not
certain where she and Aquila would ultimately live, Anna did not seek quotes from
a State Farm competitor until December 2006, when, after reading a GEICO
advertisement, she obtained an online quote from that company, but again decided
against purchasing any Florida insurance because of its cost.
Instead, Anna maintained her existing Maryland policies, which were still
being paid by an automatic debit from the Duckworths’ California checking
account. In July 2006, for instance, Anna called Whiting to inform her that the
motorcycle’s California registration had expired, that Aquila had registered the
motorcycle in Florida, and that the motorcycle had a new Florida license plate. In
response to Anna’s call, Whiting sent Anna new proof-of-insurance cards that
included the updated information.
In November 2006, Anna again called Whiting, this time to inform Whiting
8
Anna’s conversation with Banks gave rise to another disputed issue of fact. Anna
claims that she informed Banks that she and Aquila would not know where in Florida they would
permanently settle until Aquila found a permanent job and that Banks, in turn, advised her to
wait before obtaining Florida insurance because auto insurance rates in Volusia County—home
to Edgewater—were higher than in other Florida counties. Banks testified that she made no such
statement and that, regardless, auto coverage in Volusia County was not more expensive than
elsewhere in Florida. Again, because we must determine whether this dispute issue is material,
we presume that Banks did tell Anna to wait before obtaining Florida insurance. And again,
because we conclude that, regardless of what was said by Banks, Anna nonetheless failed to
clearly express to State Farm that she and Aquila never would live outside of Florida, we find no
disputed issue of material fact that would preclude summary judgment.
12
that the Probe was no longer being driven and to request that Whiting change the
Probe’s “status” from “full coverage” to “nondriving.” Anna hoped the change in
status would reduce the insurance premium she and Aquila owed on the car. Also,
during that conversation, Whiting asked the status of Aquila’s job search, and Anna
told her that Aquila was “still putting in applications all over Florida.” Then, on
November 9, 2006, Anna faxed Whiting a typed confirmation of the request that
listed Nikki’s address as their place of residence.9
Also on November 9, Whiting updated the Duckworths’ mailing address to
show that they were temporarily staying at Nikki’s house. Nikki’s address
thereafter appeared in the State Farm computer system as the Duckworths’ mailing
address, but not their permanent home address.
On December 15, 2006, after having processed the Duckworths’ mailing
address change, State Farm’s “Move Center” sent Aquila a letter containing the
address and phone number of a nearby State Farm agent in Edgewater, Buddy
Davenport. The letter instructed Aquila to contact Davenport and provided him
with a list of the Duckworths’ existing insurance policies. The letter informed
Aquila that he should let Davenport know “if there are any other policies that also
9
Anna explained that Aquila had asked her to change the Probe’s status, that she was not
certain why Aquila requested that she do so, and that their financial situation at the time was
“close,” but not dire.
13
need to be transferred,” and it reminded him that “[t]here may be some additional
limitations on the availability of property and casualty insurance in your new
location” that might “affect the transfer of your policies.” The letter concluded with
the following caveat: “If your new address is temporary or a change of your
‘mailing address,’ please contact [the Move Center] or your current agent. In these
situations, your current agent may continue to serve your insurance needs.” Aquila
never responded to the letter, and Anna never saw it. Neither Aquila nor Anna
contacted Davenport. The Duckworths instead renewed their Maryland policies
with the Connie Davis State Farm agency.
Meanwhile, Aquila had applied with several potential employers, both inside
and outside of Florida, but had requested that he only be considered for positions
within Florida. Aquila, however, had received no offers.10 To ensure an income
while continuing his job search, Aquila joined the Navy Reserves.11 Aquila also
obtained part-time employment at G.I. Jeffs, an Army/Navy surplus store in
Edgewater and volunteered regularly at the local American Legion post. Also,
10
According to Anna, despite his difficulties in finding permanent employment, Aquila
would have steadfastly refused to accept any employment opportunity outside Florida, even if
that opportunity entailed working just over the Florida/Georgia border at the Kings Bay Naval
Station (adjacent to St. Marys, Georgia). Neither Aquila nor Anna, however, communicated that
fact to State Farm.
11
Aquila joined the Navy Reserves in October 2006 and remained in the Reserves until
his death. He took part in Reserve activity one weekend a month under a Reserve command in
Orlando.
14
Aquila eventually acquired a handgun and obtained a Florida license to carry it,
listing Nikki’s address as his place of residence on his application for the license.
Nevertheless, as Aquila saw his employment as temporary, he and Anna never
decided where they were going to settle permanently, and they took no steps toward
obtaining their own home.
On March 26, 2007, while riding his motorcycle, Aquila was in an accident
with an uninsured motorist and died from his injuries. Anna called Whiting and
notified her of the accident and Aquila’s death. Whiting subsequently informed the
State Farm claims department, which handled the matter from that point forward.
State Farm paid Anna the uninsured motorist benefits called for by the
Maryland motorcycle policy, but denied payment on her claim under the two
automobile policies. State Farm, however, failed to cancel the motorcycle policy.
And because State Farm’s records listed the policy as active, State Farm mistakenly
sent Anna notice on May 18, 2007, that it intended to renew the motorcycle policy.
The notice upset Anna, who called Whiting to cancel all of her existing policies
with State Farm and later faxed Whiting a handwritten letter confirming her desire
to cancel the motorcycle policy, effective March 27, 2007 (the day after Aquila was
killed), and the Probe and Cavalier policies, effective May 18, 2007 (the day Anna
received the renewal notice). After she canceled her State Farm coverage, Anna
15
immediately obtained Florida insurance policies for the Probe and Cavalier. She
later filed this action on behalf of Aquila’s estate in the district court.
II.
In this case, since we are exercising our diversity jurisdiction, we look for a
Supreme Court of Florida decision based on facts essentially indistinguishable from
the facts at hand to inform our decision. CSX Transp., Inc. v. Trism Specialized
Carriers, Inc., 182 F.3d 788, 790 (11th Cir. 1999). Where, as here, we find no
Supreme Court decision directly on point, we must anticipate how the Supreme
Court would decide this case.
Id. In doing so, we consider, in addition to Supreme
Court precedent, decisions of the State’s intermediate appellate courts that appear to
be on point, provided that there is no indication that the Supreme Court would reject
them. Bravo v. United States,
577 F.3d 1324, 1325–26 (11th Cir. 2009) (per
curiam) (explaining that, after Erie R.R. Co. v. Thompkins,
304 U.S. 64,
58 S. Ct.
817,
82 L. Ed. 1188 (1938), and its progeny, federal courts sitting in diversity
follow intermediate state court decisions so long as there is no indication that the
state high court would not agree). This process is not exact; often we must draw
our decision from comparisons to analogous cases.
Id. Accordingly, before we
reach a decision on the public policy exception, we will first review the field of
relevant precedents that guide our analysis.
16
A.
The Supreme Court of Florida has decided three cases that address the
exception to the lex loci contractus rule and inform our judgment. The most recent
of those is State Farm Mutual Automobile Insurance Co. v. Roach, 945 So. 2d 1160
(Fla. 2006), where the court held that Indiana residents who lived in Florida for five
and one-half months every year were not entitled to application of the public policy
exception because they had not shown an intent to become permanent Florida
residents.
Id. at 1163, 1168. Although the Roach decision turned on the second
prong of the public policy exception—that is, the court held that the Indiana
residents were not permanent Florida citizens in need of protection—the court also
engaged in a discussion of Florida precedent applying the exception’s reasonable
notice prong.
Id. at 1165–68. In sum, the court emphasized that it is imperative
that the insurer know that the insureds are permanent residents of Florida before the
“narrow” public policy exception will apply.
Id. at 1168–69 (explaining that, in
virtually every case in which the exception had been applied, “the insureds were
permanent residents of Florida, and the insurer knew it”).
As the Roach court explained, if it did not insist that an insured provide an
insurer with sufficient notice of a permanent change in the insured’s residence,
Florida courts would find themselves in the business of “rewrit[ing] . . . out-of-state
17
contracts” such that an insured could unilaterally alter his bargain with his insurer
by temporarily moving to Florida. Id. at 1169. Indeed, a contrary rule, the court
warned, would “destroy the stability in contractual arrangements that the lex loci
rule is designed to ensure.”
Id. The Roach court thus found the exception
unavailing and applied New Hampshire law even though the plaintiffs called
Florida home for a significant portion of every year.
Id.
The facts as well as the result were essentially identical in the case upon
which Roach most heavily leaned, Sturiano v. Brooks,
523 So. 2d 1126 (Fla. 1988).
Sturiano also considered whether an insurer had reasonable notice that Florida law
should apply to policies held by certain “snowbirds” who seasonally, but invariably,
resided in Florida.
Id. at 1128–30. As in Roach, the Sturiano court ultimately held
that foreign law should control after applying the lex loci contractus rule, again
emphasizing that “[t]o allow one party to modify the contract simply by moving to
another state would substantially restrict the power to enter into valid, binding, and
stable contracts.”
Id. at 1130. The parties to the insurance contract “bargained and
paid for . . . New York law to apply,” the court explained, and Florida courts would
not absolve them of the burdens of that bargain.
Id. (emphasis added).
By way of contrast to Roach and Sturiano, the Supreme Court of Florida
decided in favor of applying the exception in Gillen v. United Services Automobile
18
Ass’n, 300 So. 2d 3 (Fla. 1974).12 There, the Gillens obtained two auto insurance
policies from United Services Automobile Association (“USAA”) while residents
of New Hampshire.
Id. at 4. Those policies were numbered “28” and “29.”
Id. at
4–5. The Gillens subsequently moved to Florida and informed USAA of their
move.
Id. at 5. While living in Florida, the Gillens sold one of their vehicles and
cancelled the New Hampshire automobile policy covering that vehicle, policy
number “28.”
Id. They then purchased a new vehicle and purchased a third policy,
numbered “31,” to cover that vehicle.
Id. While driving the new vehicle, the
Gillens were in an accident caused by an uninsured motorist.
Id. The Gillens then
claimed uninsured motorist benefits under both policies, “29” and “31”.
Id. USAA
paid benefits under policy “31,” but refused to do so under policy “29,” relying on
an “other insurance” clause found in policy “29” that permitted USAA to refuse
payment of benefits whenever the claimed damage was covered by some other
insurance policy owned by the insured.
Id.
The Gillens sued, seeking a declaratory judgment that the other insurance
12
We do not consider a fourth Supreme Court of Florida decision, Strochak v. Federal
Insurance Co., which was cited in Roach, and in which the court refused to apply the public
policy exception because it found that the implicated policy had been issued and delivered while
the insured was a Florida resident. 717 So. 2d 453, 455 (Fla. 1998). That case, discussed at
some length by both parties, is distinguishable from the present one insofar as it applies the lex
loci contractus rule directly; since the contract was entered into in Florida, Florida’s general
choice of law rule demanded the court apply Florida law without ever considering the exception.
See
id.
19
clause found in policy “29,” while valid under New Hampshire law, was rendered
invalid because Florida law, which “eliminat[es]” other insurance clauses, applied
by virtue of the public policy exception.
Id. at 5–6. The Supreme Court of Florida
found that all three prongs of the public policy exception had been met, applied
Florida law, and invalidated the other insurance clause found in policy “29.”
Id. at
6–7. Again, the court emphasized how important it is, in the insurance contract
context, that an insured notify the insurer of a permanent change in residence with
sufficient clarity so that the insurer could know that Florida law would thereafter
govern the insured’s policies.
Id.
The Gillen court went further, however, and actually identified the facts that
gave USAA reasonable notice that Florida law would control. First and most
prominently, the court explained, the Gillens had purchased an insurance policy,
policy number “31,” after notifying USAA that they were residing in Florida.
Gillen, 300 So. 2d at 6. That act, the court said, put USAA on notice that the
Gillens intended to make Florida their permanent home.
Id. And USAA’s issuance
of policy “31” “c[ould] be seen as an acknowledgment of domiciliary change.”
Id.
Moreover, the Gillen court felt it would inequitable to permit USAA to collected
Florida premiums on policy “31” and then deny the Gillens the benefit of Florida
law on policy “29,” stating that “[t]here is nothing in law or equity which should aid
20
an insurance company in so one-sided an arrangement.” See id. (explaining that the
public policy exception would apply to stop USAA from collecting premiums on
both policies, but paying under only one).
Second, the court noted that it was likely that USAA knew of certain steps
the Gillens had taken to establish themselves as permanent Florida residents. Aside
from purchasing a family home in Florida, the Gillens had also “purchased
automobile tags, [obtained] drivers’ licenses, mortgaged their home in Florida and
entered their children in local schools.” Id. Accordingly, since USAA had
acknowledged that the Gillens were permanent Florida residents subject to the
protection of Florida law, USAA could not justifiably rely on a contract provision
that Florida law deemed invalid.
B.
Apart from the three Supreme Court of Florida decisions, two cases from
Florida’s intermediate appellate courts also bear upon our decision. In the first of
the two, New Jersey Manufacturers Insurance Co. v. Woodward, 456 So. 2d 552
(Fla. 3d Dist. Ct. App. 1984) (per curiam), a district court of appeal refused to apply
the public policy exception where the insureds, both New Jersey residents, had
purchased New Jersey policies, moved to Florida, and only provided their insurer
with a “post office change-of-address form indicating that they had changed their
21
mailing address to a location in Florida.” Id. at 553. The Woodward court
reasoned that the insurer had no reason to know that, on those facts, the insurance
risk had permanently shifted to Florida.
Id. at 553–54 (“There was no indication . .
. that the insureds had changed their permanent residence to Florida or that the
covered motor vehicles under the subject policy would now be principally garaged
in Florida.”). And without clear notice of a permanent move, the insurer had no
notice that Florida law would usurp New Jersey law and govern the court’s
interpretation of the insureds’ policies.
Id.
In the second of the two cases, State Farm Mutual Automobile Insurance Co.
v. Davella,
450 So. 2d 1202 (Fla. 3d Dist Ct. App. 1984) (per curiam), the same
district court of appeal confronted a case in which a Colorado resident informed her
insurer, State Farm, that her husband had been transferred to Florida for work, and
that she and her husband would be moving to Florida
temporarily. 450 So. 2d at
1205 (Pearson, J., dissenting).13 “The Davellas were hoping to stay in Florida, and
thus renewed their drivers’ licenses in Florida and registered [the insured vehicle] in
Florida. However, they encountered problems securing [permanent] housing and a
mortgage in Florida, and acknowledged the possibility that they might have to move
13
We refer to the dissenting opinion only for its presentation of the facts, which is far
more comprehensive than the majority’s. Compare State Farm Mut. Auto. Ins. Co. v. Davella,
450 So. 2d 1202, 1205–07 (Fla. 3d Dist Ct. App. 1984) (per curiam) (Pearson, J., dissenting),
with
id. at 1203–05.
22
back to Colorado.” Id.
While living in their temporary housing, see
id. at 1205 n.2, the Davellas
received notice from State Farm that their two existing insurance policies had been
transferred to Florida and a bill for the increased premiums due,
id. at 1205–06.
Mrs. Davella then visited the nearest State Farm agent and informed him that,
because the possibility existed that the Davellas would be returning to Colorado,
and because three months remained on the existing Colorado policies, she and her
husband did not want to transfer those policies to Florida.
Id. They would instead
allow their policies to be transferred if, once the policies expired, she and her
husband were still living in Florida.
Id.
After some confusion over which office would service the Davellas’ account,
the Davellas eventually renewed their Colorado policies. As the date upon which
the Colorado policies would expire neared, Mrs. Davella first approached a Florida
State Farm agent to purchase Florida policies. The Florida agent, however, failed to
send her the policies. Accordingly, because she had not received the requested
Florida policies, Mrs. Davella renewed her Colorado policies by writing directly to
her Colorado agent and asking for him to “send a renewal.”
Id. at 1206. She also
paid her premium directly to the Colorado State Farm agency (under the false
impression that the agency was actually State Farm’s headquarters).
Id.
23
The Davellas subsequently were involved in an accident.
Id. at 1203. They
sued for declaratory judgment holding that they were entitled to the minimum
policy limits mandated by Florida law ($100,000) instead of those contained in the
insurance contracts ($15,000).
Id. The trial court found for the Davellas, but the
district court of appeal reversed, holding that, since Mrs. Davella choose to reject a
Florida policy when it was first offered to her and renew her Colorado policies, the
Davellas had not given State Farm reasonable notice that Florida law would govern
their insurance contracts.
Id. at 1204.
III.
Extrapolating from the principles found in the foregoing decisions, we do not
believe that the Supreme Court of Florida would choose to invoke the public policy
exception on the undisputed facts related in part I, supra. Instead, we believe that
the Supreme Court would more likely hold that, because State Farm’s picture of
where the Duckworths’ intended to permanently reside was clouded by information
provided to State Farm agents by the Duckworths or otherwise discovered by State
Farm, State Farm did not have reasonable notice that Florida law would govern the
Duckworths’ policies.
The facts related above establish the following:
(1) Anna understood that she and Aquila needed to purchase California
insurance within a few months of moving to California and Maryland
24
insurance within a few months of moving to Maryland;
(2) While the Duckworths resided in California and Maryland, they
nevertheless maintained close ties to Florida and possessed Florida drivers’
licenses that listed a California address even though they had no intention to
returning to Florida;
(3) The Duckworths decided to move to Florida and informed Whiting
that they would temporarily be staying at Nikki’s house in Edgewater,
Florida;
(4) Anna cancelled the Duckworths’ renters’ insurance policy and did not
purchase a new renters’ insurance or homeowners’ policy from State Farm
once she and Aquila arrived in Florida;
(5) While temporarily staying at Nikki’s house, the Duckworths maintained
their California bank account and contacted Whiting in Maryland about their
policies;
(6) Anna explained to Whiting and Banks that she and Aquila intended
to live somewhere in Florida, but that they would not know where they
would permanently settle until Aquila found a job;
(7) Anna twice had the opportunity to purchase insurance coverage while in
Florida, but refused to do so because she was uncertain where she and Aquila
were going to permanently settle and because the price of Florida insurance
was prohibitively expensive since Aquila had yet to find a job;
(8) Anna told Whiting that, after six months of looking, Aquila had still not
found a job, or, much less, a job prospect, as he was “still putting in
applications all over Florida;”14
(9) After residing in Florida for four months, the Maryland registration on the
Duckworths’ motorcycle expired, so the Duckworths registered the
motorcycle in Florida and obtained Florida tags for the motorcylce, but they
did not register their other vehicles in Florida or obtain Florida tags for those
vehicles;
(10) The Duckworths later decided to change the Probe’s status from
14
There is evidence that, had Aquila lived, he would have received a job offer, and that
the job offer would have come from a Florida-based company. We do not mention it in the
facts, and only briefly mention it here, because neither Aquila, nor Anna, knew that the offer was
imminent, and thus could not have intended to permanently move nearer the opportunity.
Moreover, we cannot be sure that Aquila would have accepted the offer. And since the
Duckworths did not know of the offer prior to Aquila’s death, Whiting and State Farm certainly
cannot be charged with knowing that Aquila actually had an offer that would keep the
Duckworths permanently in Florida.
25
“full coverage” to “nondriving”; and
(11) Neither Anna nor Aquila took any action in response to the State
Farm Move Center letter informing them that they needed to transfer
their policies to a Florida agent if they intended to remain in Florida
permanently, but instead renewed their policies with Whiting’s agency.
A reasonable observer in State Farm’s position who knew of the foregoing
facts would have good cause to question whether the Duckworths intended to
permanently reside in Florida and whether, even if the Duckworths intended to
permanently move to Florida, it was actually feasible for them to do so. State Farm
had knowledge of, or could have inferred, most, if not all, of the foregoing facts and
therefore had good cause to question whether the Duckworths’ move to Florida
was, or would be, permanent. As such, because the Duckworths’ did not clearly
express to State Farm that their move to Florida was permanent, State Farm did not
have the reasonable notice required by the public policy exception.
Principally, in regard to the initial question of the Duckworths’ intent, State
Farm had knowledge of facts that would have indicated to a reasonable observer
like State Farm that, even had Anna told Whiting the move to Florida was
“permanent,” it was still possible that the Duckworths would decide to permanently
reside elsewhere. First, the only Florida address given to State Farm by the
Duckworths was for Nikki’s home, a home that Anna had specifically told Whiting
would serve as her and Aquila’s temporary, not permanent, residence. Thus, State
26
Farm had no information from which it could infer that the Duckworths had
conclusively decided that their new home would be in Florida. Second, and
similarly, the Duckworths had not yet purchased or rented a Florida home or
purchased a homeowners’ or renters’ insurance policy from State Farm. Neither
had they notified Florida’s motor vehicles department of a change in their
permanent address, as their drivers’ licenses, which were on file with State Farm,
still listed their prior California address. Both facts would have led a reasonable
observer like State Farm to question whether the Duckworths were indeed certain
that they would not ultimately reside elsewhere.
And third, though the Duckworths had registered the motorcycle in Florida
and purchased a Florida license plate for that vehicle, State Farm knew, based on
Anna’s comments to Whiting, that they had only done so because (1) the
motorcycle’s Maryland registration had expired and (2) the Duckworths did not
intend to return to Maryland. Thus, judging by the Duckworths’ timing, as well as
their decision not to register their other two vehicles in Florida, State Farm could
have logically viewed that act as one of convenience rather than a declaration of
their intent to become permanent Florida citizens.15
15
That conclusion jibes with the thrust of Fla. Stat. § 320.38, which requires that any
individual who accepts employment in Florida register his vehicles with the State motor vehicles
department within ten days of beginning work. Because the Duckworths did not register their
motor vehicles with Florida in accordance with § 320.38, a reasonable observer might have
27
Moreover, and more importantly, the Duckworths had rejected an
opportunity to purchase Florida coverage when it was offered to them by Banks and
instead chose to renew their Maryland policies with Whiting. When viewed in
conjunction with Anna’s earlier proclivity to obtain local coverage from State Farm
within months after arriving at a new home—not to mention her instructions to
Falon to notify a State Farm agent as soon as Falon relocated to Utah—State Farm
easily could have construed the Duckworths’ decision to forego Florida coverage as
evidence that the Duckworths did not view their move to Florida as permanent. At
minimum, the fact that the Duckworths did not continue to seek insurance rate
quotes after Banks told Anna to “get a[] [Florida] agent” or contact a State Farm
representative after receiving the Move Center letter would have led a reasonable
observer to doubt the Duckworths’ resolve to permanently remain in Florida.
In other words, then, despite living at Nikki’s for approximately nine months,
the Duckworths had done nothing to give State Farm the clear impression that they
had made permanent living arrangements in Florida. Whatever the Duckworths’
subjective desires might have been, State Farm had every reason to view the
Duckworths as a family in transit, capable of pulling up stakes and moving to
another state at any point.
concluded that they did not intend to stay in Florida.
28
Next, turning to the issue of whether a permanent move to Florida was even
feasible, State Farm had every reason to question whether the Duckworths had the
means to make Florida their permanent home. After all, based on the Duckworths’
decisions to refuse Florida coverage based on the increased premiums and to change
the Probe’s status to “nondriving” in order to save money on premium, State Farm
must have inferred that the Duckworths’ financials were, as Anna called them,
“close.” It is not difficult to infer from that point that the Duckworths were
dependent upon Aquila to find a job that paid enough to support them; if Aquila
could not find such a job in Florida, State Farm must have realized, the Duckworths
would certainly have to look elsewhere. And, after learning from Anna that
Aquila’s job search was not going well, State Farm had to believe that there was, at
minimum, a reasonable chance that the Duckworths would end up elsewhere.
In that sense, and viewing all of the foregoing facts in concert, this appeal
most closely resembles State Farm Mutual Automobile Insurance Co. v. Davella,
450 So. 2d 1202 (Fla. 3d Dist Ct. App. 1984), where the public policy exception
was rejected for failure of reasonable notice, than Gillen v. United Services
Automobile Ass’n,
300 So. 2d 3 (Fla. 1974), the next closest on its facts and the
only precedent upon which we might base a contrary holding. Unlike the Gillens,
for example, the Duckworths had not taken steps that would indicate to a reasonable
29
observer that they had settled, once and for all, in Florida. While the Gillens had a
permanent home in Florida, enrolled their children in Florida schools, and
registered all of their vehicles in Florida, Gillen, 300 So. 2d at 6, the Duckworths
lived at a temporary address and had two vehicles still registered in Maryland.
Moreover, and more importantly, the Gillens had notified their insurer that they had
a permanent home in Florida and had even purchased a Florida insurance policy for
one of their vehicles, two things the Duckworths had not done.
Id. As such, while
the Gillens were paying a Florida premium and being denied the benefits of Florida
law, here we have the Duckworths paying Maryland premiums and requesting
Florida coverage for which they had not paid.
Instead, like the insureds in Davella, the Duckworths informed State Farm
that they were moving to Florida and hoped to stay there permanently. See 450 So.
2d at 1205. Likewise, State Farm was aware in both cases of facts indicating that
the insureds were still living in temporary housing and had no prospects for
permanent housing. Moreover, in this case as well as in Davella, State Farm knew
that the insureds’ plans to settle in Florida permanently were contingent upon the
occurrence of an event that was not certain—or, more accurately, doubtful—to
occur. See
id. In Davella, for example, Mrs. Davella informed her agent that she
and her husband were having trouble securing housing and obtaining a mortgage in
30
Florida and might have to return to Colorado unless those troubles could be
resolved, id., while in this case Anna told Whiting that she and Aquila would not
know where they would settle until Aquila found employment and that Aquila’s job
prospects were not good.
And, finally, in both cases, the insureds rejected at least one good opportunity
to purchase Florida insurance and instead renewed their policies with their former
agents in their former home states, the Davellas in Colorado and the Duckworths in
Maryland. Based on Davella, then, the Duckworths’ choice to forego Florida
coverage and ignore the Move Center letter deprived of State Farm of reasonable
notice. See id. at 1204. Instead, the Duckworths appeared to State Farm to be just
like the insureds in New Jersey Manufacturers Insurance Co. v. Woodward,
456 So.
2d 552 (Fla. 3d Dist. Ct. App. 1984), who had only changed their mailing address to
reflect the fact that they were temporarily staying in Florida. See
id. at 553.
On balance, then, these Florida precedents further support our belief that the
Supreme Court of Florida would decline Anna’s invitation to apply the public
policy exception. To apply the exception would, as the court warned against in
State Farm Mutual Automobile Insurance Co. v. Roach, 945 So. 2d 1160, 1169(Fla.
2006), and Sturiano v. Brooks,
523 So. 2d 1126, 1129–30 (Fla. 1988), threaten the
stability of contracts, the very principle at the core of Florida’s lex loci rule. Florida
31
law, as explained by these precedents, does not permit an insured to unilaterally
alter his bargain with his insurer without reasonable notice. The Duckworths paid
Maryland premiums for Maryland coverage, and we, like the Florida courts, cannot
absolve them of the burdens of their bargain.
IV.
For the reasons stated above, and based on the totality of the circumstances,
we conclude that, even if Anna had told Whiting that the Duckworths move to
Florida was “permanent,” the Duckworths nonetheless failed to clearly demonstrate
to State Farm that they had become permanent Florida citizens. For this reason,
judgment as a matter of law is proper: absent reasonable notice, the public policy
exception is inapplicable and, as the district court concluded, State Farm is entitled
to declaratory relief. The district court’s grant of summary judgment in favor of
State Farm, therefore, is
AFFIRMED.
32
CARNES, Circuit Judge, dissenting:
Summary judgment should be granted only when there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56. But it is often tempting for a district court judge to grant, and for
appellate judges to affirm, summary judgment even when there is conflicting
evidence on a material issue. The temptation is for the judge to take on the task of
finding facts and enter judgment based on what the judge believes a jury should
find. By affirming the grant of summary judgment in this case, the majority follows
the maxim of Lord Henry Wotton in Oscar Wilde’s The Picture of Dorian Gray:
“The only way to get rid of a temptation is to yield to it.”1
The majority opinion is wrong to conclude that, after drawing all reasonable
inferences in Anna Duckworth’s favor, no reasonable factfinder could find from the
evidence that the Duckworths gave State Farm reasonable notice that they had
permanently moved to Florida. The conclusion is wrong for a number of reasons,
chief of which is Anna Duckworth’s testimony that she unequivocally told State
Farm’s agent that she and her husband were permanently moving to Florida. That
fact—and we are required to accept it as a fact for summary judgment
purposes—the majority simply dismisses as “immaterial.” Maj. Op. at 11 n.7. But
1
Oscar Wilde, The Picture of Dorian Gray 35 (Signet Classic 1962) (1890).
33
that fact is anything but immaterial. There can be no more material fact about
whether Anna Duckworth put State Farm on notice that she and her husband were
moving to Florida permanently than the fact that she told State Farm they were
moving to Florida permanently.
I.
The majority opinion states that even assuming, as it must at this stage, that
Anna Duckworth told State Farm’s Agent Whiting that she and her husband were
permanently moving to Florida, “State Farm still had valid reason to doubt that the
Duckworths intended to permanently reside in Florida.” Maj. Op. at 11 n.7. It
argues that “[a] reasonable observer in State Farm’s position . . . would have good
cause to question whether the Duckworths intended to permanently reside in
Florida,” and “even had Anna told Whiting the move to Florida was ‘permanent,’ it
was still possible that the Duckworths would decide to permanently reside
elsewhere.” Maj. Op. at 26. It insists that the Duckworths’ “later actions
overwhelmingly indicated to State Farm that [their] move to Florida was not
necessarily permanent.” Maj. Op. at 5–6.
While all of that might be proven true at a trial, none of it matters at the
summary judgment stage, which is where we are. There is no support in the
governing substantive law of Florida or in our summary judgment law for the
34
proposition that judgment can be granted on the factual issue of notice of the
insured’s intent because an insurer has “valid reason to doubt” an insured’s
unequivocal statement of intent, because an insurer has “good cause to question” if
the insured will carry out the stated intent, because it is “still possible” that an
insured could change her intent, or because later actions indicated that the move
“was not necessarily permanent.”
The rule is that “[s]ummary judgment should be granted only when the
evidence produced by the nonmoving party, when viewed in a light most favorable
to that party, fails to establish a genuine issue.” Tippens v. Celotex Corp., 805 F.2d
949, 953 (11th Cir. 1986). “If one or more of the essential elements is in doubt,
then summary judgment must not be granted.”
Id. at 952. All a non-moving party
must do to avoid summary judgment is show a disputed issue of material fact.
“Where the non-movant presents direct evidence that, if believed by the jury,
would be sufficient to win at trial, summary judgment is not appropriate even where
the movant presents conflicting evidence. It is not the court’s role to weigh
conflicting evidence or to make credibility determinations; the non-movant’s
evidence is to be accepted for purposes of summary judgment.” Mize v. Jefferson
City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996). In other words, in
determining whether a genuine issue of material fact remains at this stage of the
35
proceedings, “[n]either we nor the district court are to undertake credibility
determinations or weigh the evidence.” Latimer v. Roaring Toyz, Inc., 601 F.3d
1224, 1237 (11th Cir. 2010); cf. Norelus v. Denny’s, Inc.,
628 F.3d 1270, 1293
(11th Cir. 2010) (“[A]s everyone knows, appellate courts may not make fact
findings.”). That, however, is exactly what the district court did in granting
summary judgment to State Farm and what the majority has done in affirming it.
A.
At her deposition, Anna Duckworth testified as follows:
Q: And did you tell [the Maryland agent] that that was going to be a
permanent change of address for you?
A: I told her that we were permanently moving to the State of
Florida, I just wasn’t sure where we were going to live in
Florida. She was also informed that [the new address] was my
daughter’s home and that I would notify her when we decided
where in Florida we were going to live.
Q: All right. And you specifically recall telling her that you were
going to find other residence someplace in the State of Florida
other than your daughter’s residence?
A: Yes.
Q: Did you suggest or indicate to her that you were going to be
staying temporarily with your daughter?
A: Temporarily with my daughter, yes. Permanently in the State of
Florida.
Q: And you—as you sit here today, you recall that specific
36
statement that, I am permanently living in Florida effective May
whatever date, 2006?
A: Yes.
In order to conclude that State Farm did not have reasonable notice that the
Duckworths had permanently moved to Florida, one would have to disbelieve Anna
Duckworth’s deposition testimony that she specifically told her State Farm agent in
Maryland that even though her address in Florida was temporary, the move to
Florida was permanent. And that is exactly what the majority does—disbelieve the
testimony—even though courts are not authorized at the summary judgment stage
to believe or disbelieve testimony.2
The majority rejects Anna Duckworth’s testimony as “immaterial” because it
finds as a fact that the Duckworths’ “later actions overwhelmingly indicated to State
Farm that [their] move to Florida was not necessarily permanent.” Maj. Op. at 5–6.
But at the summary judgment stage courts, including appellate courts, have no
business making fact findings.
In a squid-like attempt to cover its move into the jury box, the majority
2
After making that credibility determination, the majority analogizes the present case to
one in which “the insured advised the company on several occasions that her move to Florida
was temporary and that she wanted to keep her Colorado policy intact.” State Farm Mut. Auto.
Ins. Co. v. Davella, 450 So. 2d 1202, 1204 (Fla. 3d DCA 1984); see Maj. Op. at 30–31. The
analogy, of course, does not fit. Anna Duckworth did not tell the insurance company that the
move to Florida was temporary, but just the opposite. Opposites are not analogous, but just the
opposite.
37
opinion throws up a cloud of ink composed of lesser facts in an effort to mask its
unauthorized rejection of the primary fact that State Farm was told that the
Duckworths’ move to Florida was permanent. See Maj. Op. at 24–26. The
majority’s list of facts is incomplete. Among the facts that the majority
acknowledges earlier in its opinion but fails to include in its list of those relevant to
the critical issue of notice are these:
(1) “In July 2006 . . . Anna called Whiting to inform her that the
motorcycle’s California registration had expired, that Aquila had
registered the motorcycle in Florida, and that the motorcycle
had a new Florida license plate.” Maj. Op. at 12.
(2) “In response to Anna’s call, Whiting sent Anna new proof-of-
insurance cards” to the Duckworths’ Florida address. Maj. Op.
at 12.
(3) “In November 2006, Anna again called Whiting, . . . and Anna
told her that Aquila was ‘still putting in applications all over
Florida.’” Maj. Op. at 12–13.
(4) Anna testified that when she declined to obtain new policies
from Debbie Banks through the Charlie Cobb State Farm
agency, Debbie advised her to “[w]ait until you get settled,
[because] insurance rates in Volusia County [Florida] are higher
than anywhere else [in Florida].”3 Doc. 28–2 at 97; see Maj.
Op. at 11–12, 12 n.8.
(5) “[O]n November 9, 2006, Anna faxed Whiting a typed
3
Crediting Anna Duckworth’s testimony and drawing all reasonable inferences in her
favor, we have to infer that Debbie Banks meant that “insurance rates in Volusia County are
higher than anywhere else” in Florida, thereby implying that Banks, an agent of State Farm, was
aware of the Duckworths’ intentions to reside permanently somewhere in Florida.
38
confirmation of the request that listed Nikki’s [Florida] address
as their place of residence.” Maj. Op. at 13.
(emphasis added).
Despite all of those facts, and Anna Duckworth’s own unequivocal testimony
that she specifically told State Farm Agent Whiting that the Duckworths were
permanently moving to Florida, the majority nevertheless insists on pretending that
“State Farm had no information from which it could infer that the Duckworths had
conclusively decided that their new home would be in Florida.” Maj. Op. at 26–27
(emphasis added). Summary judgment ought not be based on the pretended
absence of evidence.
Faced with conflicting evidence, a reasonable trier of fact could conclude that
the Duckworths put State Farm on reasonable notice that their move to Florida was
permanent, or it could conclude, as the majority acting as a factfinder does, that
their inconsistent actions “overwhelmingly indicated to State Farm that the
Duckworths’ move to Florida was not necessarily permanent.” Maj. Op. at 5–6.
Because reasonable minds could differ in their ultimate conclusions based on the
disputed and undisputed material facts, a trier of fact—not the district court on a
motion for summary judgment and not a majority of this Court—should weigh the
conflicting evidence and make a fact finding about whether State Farm had
reasonable notice that the Duckworths’ move was permanent.
39
B.
Because of its decision against Anna Duckworth on the reasonable notice
issue, the majority does not reach the citizenship requirement of Florida’s public
policy exception to its lex loci contractus rule. Because I disagree with the majority
on the reasonable notice issue, I will address it. The requirement means that in
order to get past summary judgment, Anna Duckworth must have created a genuine
issue of material fact that the Duckworths were “in the process of establishing
themselves as permanent residents” of Florida. See Gillen v. United Servs. Auto.
Ass’n, 300 So. 2d 3, 6 (Fla. 1974). I conclude that Anna Duckworth’s testimony
along with other undisputed facts create a genuine issue about that, so that the
district court was also precluded from granting summary judgment to State Farm on
the citizenship requirement.
The following evidence created a genuine issue about whether the
Duckworths were actually in the process of establishing themselves as permanent
residents of Florida at the time of the accident:
(1) Anna had full-time employment in Florida;
(2) Aquila had part-time employment in Florida;
(3) both Aquila and Anna were actively seeking long-term
employment in Florida;
(3) one of the Duckworths’ three vehicles (the Yamaha motorcycle)
40
was registered in Florida;
(4) Aquila had obtained a concealed weapons permit in Florida;
(5) Aquila joined the American Legion in Florida;
(6) the Duckworths had opened a bank account in Florida;
(7) the Duckworths had Florida driver licenses that predated their
move to California;
(8) the Duckworths had Florida voter registration cards (which had
expired)
(9) the Duckworths filed income tax returns as Florida residents.4
There was, to be sure, evidence weighing against a finding that the
Duckworths actually were permanent Florida residents, including: their temporary
living arrangements with Anna’s daughter (in Florida); the Cavalier vehicle had a
Maryland title and was registered in Maryland; the Probe vehicle was registered in
California with a Maryland address on the title; the Florida driver licenses at the
time of the accident listed the Duckworths’ California address; their voter
registrations had expired before they returned to Florida, and neither one had voted
in a Florida election after 1998 when they left Florida to move to California.
The conflicting evidence on the issue of Florida citizenship should be weighed by a
4
Anna Duckworth asserts in her brief that she and her husband filed their income tax
returns as Florida residents. Because Florida has no state income tax, we assume that she means
they listed a Florida address on their federal income tax returns. Even though there is no record
citation for the assertion, State Farm’s brief does not dispute it.
41
trier of fact and not resolved by a court. Summary judgment on the issue is not
appropriate, and we ought to reverse.
42
