Shelter Mutual Insurance Co. v. Frederick

654 So. 2d 656, 1995 Fla. App. LEXIS 5074, 1995 WL 275744
CourtDistrict Court of Appeal of Florida
DecidedMay 12, 1995
DocketNo. 94-2597
StatusPublished
Cited by3 cases

This text of 654 So. 2d 656 (Shelter Mutual Insurance Co. v. Frederick) 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
Shelter Mutual Insurance Co. v. Frederick, 654 So. 2d 656, 1995 Fla. App. LEXIS 5074, 1995 WL 275744 (Fla. Ct. App. 1995).

Opinion

GRIFFIN, Judge.

Shelter Mutual Insurance [“Shelter”], a defendant below, appeals the order of the lower court denying its Motion To Dismiss for Lack of In Personam Jurisdiction. Because we conclude that there is no basis under Florida law for in personam jurisdiction over Shelter and that the facts do not meet the constitutional threshold of minimum contacts,1 we reverse.

The appellee, James Mark Frederick, was in an automobile accident in Florida on April 17, 1992. He was insured by Shelter, a Missouri corporation. Frederick had purchased his Shelter policy in Kansas, where he was residing at the time the policy was issued. At the time of the accident, he was driving on a Kansas license. Frederick sued Shelter in Florida claiming that he was entitled to underinsured motorist benefits under the Shelter policy.

In his unsworn complaint, Frederick alleged as his basis for jurisdiction that Shelter was an insurance company doing business in Florida.2 Shelter moved to dismiss for lack of personal jurisdiction, and submitted an affidavit, the insurance policy, and other documents to show that it was not organized under Florida law, was not authorized to do business in Florida and was not conducting business in Florida. The record reflects that Shelter is authorized to write insurance in twenty-four states, but not Florida.

Frederick’s policy was renewable every six months and, before the accident, had last been renewed on January 17, 1992. The renewal policy and billings were sent to Frederick in Kansas. Shelter’s affidavit averred that: “SHELTER had no information prior to April 17, 1992 that Frederick had changed his residence from 1228 Martin Avenue, Salina, KS 67401.”

In response to Shelter’s motion to dismiss for lack of jurisdiction, Frederick filed an opposing affidavit which stated that:

[657]*6571. He moved from Kansas to Florida in December 1991.
2. Before moving, he notified his agent and advised him he was moving to Florida and then would be moving to Texas or Oklahoma.
3. His agent told him there would be no problem with his insurance and he should not make any changes until he arrived in Texas or Oklahoma.
4. His collision with Lusis occurred on April 17, 1992, in Florida “as [he] was preparing to move to Texas.”

Shelter then took Frederick’s deposition, which fleshed out these facts: Frederick was moving to Texas to work as a manufacturer’s representative for a company called Endolap in Texas and Oklahoma. He accepted this position while living in Kansas. Since Endo-lap’s product line was not completely finished at the time, he decided to come to Florida for “a short time.” When he talked to his insurance agent in late October 1991, he told him he was “going to Texas to live.” He told him he was first going to Florida but he should “only be in Florida for a little while.” Frederick came to Florida in December 1991 and stayed with a friend. He traveled back to Kansas at least once. Frederick claims he can’t remember whether he was in Kansas or Florida when he received his premium bill, nor could he remember whether he paid it with his Florida checking account or his Kansas checking account.

In January 1992, he learned it would be longer before Endolap would be ready to start so, to avoid imposing upon his friend any longer, he moved into an apartment. Frederick’s only communication with Shelter was the one conversation with the agent in October 1991. He was scheduled to depart for Texas on April 18, 1992 — the day after the accident in question.

Two Florida statutes provide a possible basis for in personam jurisdiction over an out-of-state insurer: section 626.906, Florida Statutes,3 which specifically pertains to unauthorized out-of-state insurers, and the more general section 48.193, Florida Statutes.4 In his complaint, Frederick only alleged “doing business” as the basis for jurisdiction. On appeal, he urges that section 48.193(l)(d) also is applicable. In addition, the federal constitutional threshold of “minimum contacts” with the forum where the action is brought must be met as well. Hassneh Ins. Co. of Israel, Ltd. v. Plastigone Technologies, Inc., 623 So.2d 1223 (Fla. 3d DCA 1993), review denied, 634 So.2d 626 (Fla.1994); Tennessee Farmers Mut. Ins. Co. v. Meador, 467 So.2d 471 (Fla. 6th DCA 1985); Kentucky Farm Bureau Mut. Ins. Co. v. Mills, 367 So.2d 673 [658]*658(Fla. 2d DCA), cert. denied, 376 So.2d 74 (Fla.1979); Drake v. Scharlau, 353 So.2d 961 (Fla. 2d DCA 1978).

In Drake v. Scharlau, 353 So.2d 961 (Fla. 2d DCA 1978), the Second District outlined the procedure to be followed in determining in personam jurisdiction:

When jurisdiction has been adequately challenged by the defendant by affidavit or other competent evidence, the plaintiff must then sustain its claims by affidavit or other proof and not just by reiteration of the unsworn allegations of the complaint. In other words, if the defendant establishes a prima facie showing by way of affidavit that the defendant’s conduct and actions did not make it amenable to service of process, then the burden shifts to the plaintiff to support the allegations of its complaint by way of evidence in opposition to the defendant’s affidavit. See Dublin Company v. Peninsular Supply Company, 309 So.2d 207 (Fla. 4th DCA 1975) and the cases cited therein; see also Elmex Corporation v. Atlantic Federal Savings and Loan Association of Fort Lauderdale, 325 So.2d 58 (Fla. 4th DCA 1976).

Id. at 965.

In this case, Shelter adequately challenged the jurisdiction of the court by affidavit. In response, Frederick submitted his own affidavit. The question thus becomes whether Frederick’s act of informing the agent in Kansas that he was going to Florida for a little while and Shelter’s subsequent renewal of the policy while he was located in Florida constitute an adequate basis for in personam jurisdiction.5

In Parliament Life Insurance Co. v. Eglin National Bank, 333 So.2d 517, 518 (Fla. 1st DCA 1976), the First District held that, to be subject to service pursuant to section 626.906, the insurer must issue and deliver the contract in Florida. The court held the fact that the insured is a known resident of Florida is not sufficient in itself to bring the insurer within the purview of the statute.

Two years later, the Second District decided Drake. In Drake, the plaintiff attempted to serve Beacon Insurance under section 626.906. The Second District, relying upon Parliament, held that Beacon Insurance could not be reached under the statute because, although the insured, Drake, was a Florida resident, Beacon Insurance was an Ohio company, and it did not issue or deliver any policy of insurance to Drake in Florida. The Drake court also went on to say that Beacon Insurance did not have the requisite minimum contacts with Florida which would subject it to the jurisdiction of the Florida courts without offending the fundamental due process guarantees of fair play and substantial justice required by International Shoe Co. v. Washington, 326 U.S. 310

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Cite This Page — Counsel Stack

Bluebook (online)
654 So. 2d 656, 1995 Fla. App. LEXIS 5074, 1995 WL 275744, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shelter-mutual-insurance-co-v-frederick-fladistctapp-1995.