AEISEL v. Duvall

972 So. 2d 1035
CourtDistrict Court of Appeal of Florida
DecidedJanuary 16, 2008
Docket3D07-1194
StatusPublished
Cited by10 cases

This text of 972 So. 2d 1035 (AEISEL v. Duvall) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
AEISEL v. Duvall, 972 So. 2d 1035 (Fla. Ct. App. 2008).

Opinion

972 So.2d 1035 (2008)

AMERICAN EXPRESS INSURANCE SERVICES EUROPE LIMITED, Appellant,
v.
Johanna DUVALL, Helen Duvall, and Vincent Sansalone, Appellees.

No. 3D07-1194.

District Court of Appeal of Florida, Third District.

January 16, 2008.

*1037 Mase & Lara, Miami and Joel V. Lumer; Kahan Shir and Paul E. Heimberg, Boca Raton, for appellant.

Roy D. Wasson and Annabel C. Majewski, Miami; Brett Weinberg, Coral Gables, for appellees.

Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.

RAMIREZ, J.

American Express Insurance Services Europe Limited ("AEISEL") appeals the denial of its motion to dismiss based upon waiver of jurisdiction and/or Florida's long arm statute. We reverse because we conclude that AEISEL is not subject to personal jurisdiction in Florida for claims that arose in Florida, based on an insurance policy issued in the United Kingdom, and AEISEL did not waive its objection to personal jurisdiction.

I. Factual Background

AEISEL acts as intermediary between insurance companies and retail customers for the sale and purchase of traveler's insurance policies. The decedent Johanna Duvall was one of those retail customers. She purchased a policy in the United Kingdom effective from May 27, 2004 to May 26, 2005. In the policy section titled "Policy Information," under the subheading "[t]he insurers," Viator agreed to "provide the insurance benefits and AXA Assistance (UK) Ltd. the services described in the Policy booklet during the period of insurance." The insurance policy, was "effected in England and governed by the laws of England and Wales." The insurance policy automatically renewed each year.

Duvall subsequently suffered a stroke in Florida and requested the benefits due under the policy. On her return commercial flight from Florida to Great Britain, Duvall suffered severe permanent injuries for which she sued numerous defendants, including counts for breach of contract and negligent entrustment against. AEISEL. The complaint alleged that AEISEL conducted business worldwide, and more specifically in Miami-Dade County, Florida.

The plaintiff served process on American Express Company. Attorney Debra M. Cohen filed a motion to dismiss American Express, explaining that the service had been effected on the wrong party. Meanwhile, plaintiff's counsel sent notices of depositions of two employees of defendant AXA Assistance USA: Hector Ojeda and Rodolfo Medina. AEISEL was served with process on May 15, 2006. The next day, the circuit court signed an agreed order dismissing American Express. The depositions took place on May 23, 2006, with various defendants attending via telephone. Attorney Cohen, who had represented American Express, attended in person, on behalf of AEISEL. On June 6, she filed a motion to dismiss attacking personal jurisdiction over AEISEL.

II. Jurisdiction

In support of its motion to dismiss, AEISEL filed the affidavit of its general manager, Graham P. Setterfield. Setterfield testified that AEISEL is a United Kingdom corporation with its principal offices located in London. It does not issue or underwrite insurance policies, and it functions as a regulated insurance intermediary *1038 or insurance agent of the insurer. Setterfield further testified that AEISEL is not registered in Florida as a foreign corporation or foreign insurer qualified to transact business in Florida; has not transacted business in Florida; has never had any directors, officers, employees, or agents in Florida; has not maintained any offices in Florida; does not own, lease, manage, or otherwise have any interest in real property in Florida; does not sell, consign or lease tangible or intangible personal property, directly or indirectly, in Florida; has never had any bank accounts in Florida; has not had any monies sent to it in Florida; has not received mail in Florida; does not market itself or its services directly or indirectly in Florida; and it has not received any pecuniary benefits from or in Florida.

In opposition to AEISEL's motion to dismiss, Duvall introduced the affidavit of attorney Brett A. Weinberg. Weinberg testified that AEISEL maintains a web page on the internet, showing that it is owned by American Express Company, the former defendant.

The standard of review is de novo whenever a case, such as this, arises from the trial court's decision on a motion to dismiss for lack of personal jurisdiction. Wendt v. Horowitz, 822 So.2d 1252, 1256-57 (Fla.2002); Enic, PLC v. F.F.S. & Co., 870 So.2d 888, 889 (Fla. 5th DCA 2004).

We conclude that the trial court did not have personal jurisdiction over AEISEL. In determining whether long-arm jurisdiction is appropriate in a given case involves a two-step inquiry. First, it must be determined that the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of the long-arm statute. Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989). If the requirements of the first prong are met, the next inquiry is whether sufficient "minimum contacts" are demonstrated. Id.

Duvall attempts to satisfy the first prong through section 48.193(1)(d), Florida Statutes (2006), which provides, in relevant part, as follows:

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
. . .
(d) Contracting to insure any person, property, or risk located within this state at the time of contracting.

There is nothing in the record of this case to intimate that the insurance contract was entered into anywhere other than the United Kingdom. At the time that the contract of insurance was entered into, there was no person, property or risk located within the State of Florida.

Failing the first prong, we need not reach the second. But as to minimum contacts, Duvall's argument is even weaker. There are insufficient contacts here to permit the trial court to exercise personal jurisdiction over AEISEL under the well-established principles that govern personal jurisdiction over non-residents as enunciated in Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). The test is whether "the defendant's conduct and connection with the forum are such that he should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 287, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).

The evidence establishes that AEISEL only acts as an agent for retail customers within the United Kingdom. Certainly some of these customers may turn up in Florida, but also in France, Germany and *1039 Spain. A company like AEISEL that services customers within the United Kingdom acting as an insurance agent for policies that specifically provide that they are subject to "the laws of England and Wales" cannot reasonably anticipate being haled into court anywhere in the world where its customers may travel.

Duvall relies upon Dollar Systems, Inc. v. Elvia, 863 So.2d 378 (Fla.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Villamorey, S.A. v. Bdt Investments, Inc.
245 So. 3d 909 (District Court of Appeal of Florida, 2018)
The Sampson Farm Limited Partnership v. Parmenter
238 So. 3d 387 (District Court of Appeal of Florida, 2018)
Paola A. Alvardo-Fernandez v. Matthew Mazoff
151 So. 3d 8 (District Court of Appeal of Florida, 2014)
Puigbo v. Medex Trading, LLC
209 So. 3d 598 (District Court of Appeal of Florida, 2014)
Universal Music Venezuela, S.A. v. Montaner
105 So. 3d 588 (District Court of Appeal of Florida, 2012)
Reynolds American, Inc. v. Gero
56 So. 3d 117 (District Court of Appeal of Florida, 2011)
Aspsoft, Inc. v. WebClay
983 So. 2d 761 (District Court of Appeal of Florida, 2008)
Carruthers v. State
972 So. 2d 1035 (District Court of Appeal of Florida, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
972 So. 2d 1035, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aeisel-v-duvall-fladistctapp-2008.