10 Fla. L. Weekly Supp. 1005a
Insurance — Marine — Jurisdiction — Foreign insurer — Where Russian insurer issued policy to plaintiff, a Honduran resident; insurer provided coverage for fishing vessel registered in and operating out of Honduras; loss of vessel occurred in international waters; insurer does not maintain or have offices, employees, mailing address, telephone listing, real or personal property, agent for service of process, advertising or marketing, bank account, or business records in Florida, and insurer does not insure any Florida residents, insurer’s contacts with Florida are not continuous and systematic so as to establish general jurisdiction — Foreign insurer’s acceptance of premiums paid and delivered to Florida insurer pursuant to issuance of cover note established implied authority of Florida insurer as agent of foreign insurer — Where foreign insurer issued and delivered coverage and terms of insurance to plaintiff through chain of brokers, in Florida, for profit, it is reasonably foreseeable that foreign insurer could be haled into Florida court for transacting insurance and receiving benefits therefrom, and requirements for in personam jurisdiction are satisfied
VICTOR K. BORDEN, Plaintiff, v. EAST-EUROPEAN INSURANCE COMPANY, ALFA INSURANCE PLC, and SOUTHERN SEAS (UK) LTD., foreign corporations or business entities and OCEAN INSURANCE MANAGEMENT, INC., and BARNHARDT MARINE INSURANCE, INC., Florida corporations, Defendants. Circuit Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 02-07948. Division I. October 17, 2003. Herbert J. Baumann, Judge. Counsel: Nathaniel G.W. Pieper, Lau, Lane, Pieper, Conley & McCreadie, P.A., Tampa, for Plaintiff. Paul E. Parrish, Holland & Knight LLP, Tampa, for Defendants East European Insurance Company and Alfa Insurance PLC. David W. Henry and Barbara Rudolph Smith, Allen, Dyer, Doppelt, Milbrath & Gilchrist, P.A., Orlando, for Defendant Barnhardt Marine Insurance, Inc. James Bond Atkinson and Rebecca A. Brownell, Rumberger Kirk & Caldwell, P.A., Miami, for Defendant Ocean Insurance Management, Inc. Patrick E. Novak, Horr, Novak & Skipp, P.A., Miami, for Defendant Southern Seas UK.
[Reversed at 29 Fla. L. Weekly D1784c. District court decision approved at 31 Fla. L. Weekly S34a.]
CONSOLIDATED ORDER DENYING EAST-EUROPEAN’S MOTION TO QUASH AND GRANTING A BATEMENT, IN PART, AS TO SOUTHERN SEAS, BARNHARDT, AND OCEAN
THIS MATTER came before the Court, at hearing, August 11, 2003, regarding East-European’s Motion to Quash1 as well as Ocean Insurance Management Inc.’s Motion to Dismiss Plaintiff’s Amended Complaint for Failure to State a Cause of Action or in the Alternative, Abate and/or Stay Action2, Barnhardt Marine Insurance’s Motion to Dismiss Amended Complaint3, and Motion to Strike or Dismiss Claims Against Southern Seas4. The Court, after considering the Motions, responses thereto5, court file6, record, argument of counsel, additional supplemental authority, and being otherwise fully advised in the premises, hereby finds and rules as follows:
On or about July 2001, at the time of renewal, Silvia Borden7, on behalf of Victor K. Borden8 (“Plaintiff” or “Insured”), sought insurance from Ocean Insurance Management, Inc.9 (“Ocean”), a Florida corporation, for three (3) fishing vessels10 based in Honduras. Thereafter, Ocean contacted Barnhardt Marine Insurance, Inc. (“Barnhardt”)11, a Florida corporation, for assistance in locating a replacement underwriter. Through Marine Insurance Consultants International (“MICI”), a British corporation, Southern Seas12 (“Southern Seas”), a British corporation, and 2K Shipping and Trading Ltd.13 (“2K”) , a Turkish corporation, Barnhardt found East-European Insurance Company14 (“East-European” or “Insurer” or “Underwriter”), a Russian corporation, willing to underwrite the vessels.15 Through the chain of brokers set forth above, Barnhardt provided descriptive information on East-European and conveyed the terms and conditions for binding coverage. Plaintiff accepted coverage.16
On or about July 31, 2001, as authorized, John Nguyen (Barnhardt) drafted, signed, issued, and delivered Cover Note #MH00060117, in Florida, to Plaintiff. The policy period on Cover Note #MH000601 indicates July 31, 2001 to July 31, 2002 and lists East-European as the sole underwriter for each vessel.18
After receiving Cover Note #MH000601, Plaintiff made premium payments19, in Florida, to East-European through Barnhardt.20 Despite premium payments, the record indicates policy errors as early as August, 2001.21 Notwithstanding, on or about December 17, 2001, prior to Plaintiff’s receipt of the Policy, one of the fishing vessels (Captain Adolfo) sank in international waters. At or about the same time of the loss, East-European authorized Barnhardt to prepare and sign a “Notice of Cancellation” for non-payment of premium. As instructed, John Nguyen (Barnhardt) prepared, signed, and forwarded the Notice of Cancellation22 for “Non-Payment of Premium” to Plaintiff.23 Notably, the Notice of Cancellation lists John Nguyen (Barnhardt) as East-European’s “Authorized Representative”.24 Once notified, the premiums25 were paid and collected in Florida, and the Notice of Cancellation rescinded26 with no lapse in coverage. Thus, the rescinded Notice of Cancellation occurred after the loss prior to receipt of the alleged Policy. Without dispute, after recission, East-European received premiums.
Additionally, after the loss, Plaintiff submits Barnhardt provided Ocean a fax regarding the “addresses for Underwriters and their agent”. As such, Plaintiff names Southern Seas, Alfa-Insurance PLC, 2K, and Horizon.27 In essence, Plaintiff states East-European, through a chain of brokers, transacted insurance in Florida. Accordingly, pursuant to agreed terms and conditions, despite dispute (Policy)28, Plaintiff (Insured) seeks coverage, in Florida, for its sunken vessel (Captain Adolfo) from East-European (Insurer).
In response, East-European disputes: (1) jurisdiction; (2) agency29; (3) Policy terms and conditions30; and, (4) coverage31. As to jurisdiction, East-European contends it is an insurance company organized and existing solely under the laws of Russia32 and denies contacts or business in the state of Florida.33 Toward that end, East-European alleges the Policy was issued to Plaintiff, a Honduran resident, in Honduras, and provided coverage for a fishing vessel registered in and operating out of Honduras.34 Further, East-European states the alleged loss occurred in international waters.35 In sum, East-European disputes jurisdiction, either by Florida’s long-arm statute or otherwise as well as sufficient minimum contacts pursuant to the Due Process Clause of the United States Constitution.36 As such, East-European moves to quash service of process and seeks dismissal.
Turning to jurisdictional issues, the Court notes East-European denies maintaining or having: (1) an office in Florida; (2) employees in Florida; (3) a mailing address in Florida; (4) a telephone listing in Florida; (5) real or personal property (owned or leased) in Florida; (6) an agent for service of process in Florida; (7) any advertising or marketing in Florida; (8) a bank account in Florida; or, (9) any business records in Florida.37 East-European also denies “any salesmen, representatives, dealers, franchises, jobbers, wholesalers, distributors, brokers or agents of any nature in the state of Florida” and further alleges, to the best of its knowledge, not insuring any Florida resident.38 When considering the limits imposed by the Due Process Clause of the federal constitution in establishing personal jurisdiction over a non-resident, Florida courts distinguish between specific and general jurisdiction.
As to specific jurisdiction, this is present only if Plaintiff’s cause(s) of action arise(s) out of East-European’s forum-related activities such that East-European should reasonably anticipate being haled into Court in the forum.39 In contrast, general jurisdiction is based upon a Defendant’s continuous and systematic contacts with the forum and exists even if the Plaintiff’s cause of action arises from the Defendant’s non-forum related activities.40 In this case, the Court does not find East-European’s contacts in Florida continuous and systematic. As such, the Court examines whether East-European’s contacts are sufficient to give rise to specific personal jurisdiction.
In deciding personal jurisdiction in the context of unauthorized insurers, the First District, in Bookman v. Kah Incorporated, Inc.41, set forth two (2) statutory bases for jurisdiction qualified by the Due Process Clause:
[Insured] has advanced two statutory bases for jurisdiction: (1) Florida’s long-arm statute, section 48.193(1)(d), (g), Florida Statutes; and[,] (2) the Unauthorized Insurer’s Process Law (UIPL), sections 626.905 and 626.906, Florida Statutes. The trial court agreed that [the Insured’s] third-party complaint sufficiently alleged jurisdictional facts bringing the action within Florida’s long-arm statute. However, the trial court found that the long-arm statute could not expand the reach of Florida’s in personam jurisdiction beyond the constitutional limits of due process.42
As to the first statutory bases for jurisdiction, Florida’s long-arm statute §48.193(1)(d) & (g) states:
(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. . . (g) Breaching a contract in this state by failing to perform acts required by the contract to be performed in this state. (Emphasis added).
In the event Plaintiff sufficiently alleged43 jurisdictional facts bringing the action within Florida’s long-arm statute or Florida statutes §§626.905 and 626.906, as expressed in Bookman, the constitutional limits of the Due Process Clause must be considered:
[D]ue process requires that in order to subject nonresident defendants to in personam jurisdiction in Florida, the defendants must have certain minimum contacts with Florida such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. It is essential that there be some act by which the defendants purposely avail themselves of the privilege of conducting activities in Florida, thus reaping the benefit and protection of its laws. [An insured] cannot establish the necessary minimum contacts with Florida through his own unilateral activities.44
Bookman involved an insurer compelled by the Consolidated Omnibus Budget Reconciliation Act (COBRA) to continue a retiree insured’s healthcare after his move from Virginia to Florida. Despite insured’s increased premiums, payments, and renewal in Florida, the policy was issued and delivered in Virginia. Thus, the insured’s unilateral actions compelled the insurer’s contacts creating circumstances over which the insurer had no control. Absent control, the insurer’s compelled contacts were not the result of purposeful availment. Accordingly, Bookman held the extension or renewal was not synonymous with issuing and delivering a policy in Florida because the insurer did not voluntarily avail itself of business opportunity in Florida. Additionally, Bookman focused on contracts of insurance issued and delivered in the state rather than Florida residence and specifically distinguished policies voluntarily reissued by insurers as opposed to compelled by law.45
The Eleventh Circuit, in Walter v. Blue Cross & Blue Shield United of Wisconsin46, followed the same analysis prescribed in Bookman. In Walter, the insurer issued and delivered a policy to the insured in Wisconsin. Thereafter, the insured moved to Florida. Under the terms of a Third Party Administrator Agreement for health insurance coverage with the state of Wisconsin, the insurer was not permitted to terminate the insured’s policy for moving to Florida. For almost thirty (30) years, the insured paid his premium payments from Florida. Likewise, over the thirty (30) years, the insurer made payments in Florida on behalf of insured to healthcare providers. However, in 1997, the insured sued the insurer, in Florida, for failing to pay certain claims. Like here, the insurer denied Florida contacts and moved to dismiss for lack of personal jurisdiction.
As in Bookman, citing additional authority, Walter stated:
For personal jurisdiction to attach, the insurer must issue or deliver the original policy in Florida47. . . or reissue or amend the policy [voluntarily] after the insured has moved to Florida. . . . . T[he] principle does not apply. . .if the renewal or extension is compelled by law.48
Since the insurer was compelled to renew, the Eleventh Circuit held:
[A]n out-of-state insurer cannot be haled into Florida court under §626.906 simply because it accepts premiums from Florida on an insurance policy issued and delivered in another state. . . . .Because we conclude that the district court did not have jurisdiction over [the insurer] under §626.906, we need not determine whether [the insurer] had sufficient minimum contacts with Florida to satisfy the Due Process Clause.49
In Baker Electronics v. Pentar50, although not in the context of unauthorized insurers, the Middle District acknowledged a prima facie showing for in personam jurisdiction, reviewed Florida’s long-arm statute, examined due process, and set forth a three-part analysis for assessing minimum contacts. As to a prima facie showing for in personam jurisdiction, the Middle District explained:
To subject a defendant to a judgment in personam, a plaintiff must make a prima facie showing that jurisdiction exists by presenting enough evidence to withstand a motion for directed verdict . . . If the plaintiff pleads enough facts to state a prima facie basis for jurisdiction, the burden shifts to the defendant to challenge [the] [p]laintiff’s allegations by affidavits or other pleadings . . . If the defendant sufficiently challenges the plaintiff’s assertions, then the plaintiff must affirmatively support its jurisdictional allegations and may not merely rely upon the factual allegations set forth in the complaint.51
The Middle District further explained:
To determine whether the court may exercise personal jurisdiction over a nonresident defendant, the court must determine: (1) whether the state long-arm statute permits the assertion of jurisdiction52[,] and (2) whether sufficient “minimum contacts” exist to satisfy the due process requirements of the Fourteenth Amendment so that maintenance of the suit does not offend “traditional notions of fair play and substantial justice”.53
In Pentar, the Middle District applied the long-arm statute and determined the existence of a business relationship. In determining same, the Middle District noted: (1) interstate travel between parties; (2) exchanged communications; and, (3) goods placed into interstate commerce to effectuate a joint venture.54 Aside from satisfying §48.193(1)(a)55, the Middle District reviewed §48.193(1)(g)56:
To establish long-arm jurisdiction for a breach of contract[,] a party must demonstrate the defendant’s failure to perform acts required by the contract to be performed in Florida . . . Such a failure to perform the terms of the contract constitutes a breach and subjects the defendant to Florida’s long-arm statute.57
After satisfying the long-arm statute, the Middle District examined whether the defendant could be subjected to the court’s jurisdiction in accordance with traditional notions of due process and fair play. The Middle District, quoting, stated:
The Due Process Clause protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful contacts, ties, or relations58 . . .The Due Process Clause gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit59.60
Notwithstanding isolated and sporadic contact, the Middle District confirmed defendant’s may still maintain minimum contacts under the doctrine of specific jurisdiction. The Middle District continued:
This court may exercise specific jurisdiction when the suit arises out of, or is related to, a party’s single or isolated contact with the forum. . . The court may exercise specific jurisdiction over a non-resident if the defendant had purposefully directed his activities to the forum state, and the alleged injury to the forum residents arise out of those activities. . .The nonresident’s activities and connection with the forum state must be such that the defendant would ‘reasonably anticipate being haled into court there’.61
Specifically, the Middle District utilized a three-part test for determining whether the defendant satisfied the minimum contacts requirement in Florida:
(1) [T] he contacts must be related to the Plaintiff’s cause of action[;] (2) they must involve some act by which the defendant purposefully avails itself of the privilege of conducting activities within the state; and[,] (3) the defendant’s contacts with the state must be such that the defendant would reasonably anticipate being haled into court there.62
The Middle District observed: (1) travel to Florida; (2) transmitted information through mail and facsimile to Florida; and, (3) numerous communications. As such, the collective activities illustrated voluntary and purposeful availment. Therefore, the Middle District found sufficient minimum contacts and held:
It would be contrary to the interests of [plaintiff] to allow [defendant] to have acted on, and possibly benefitted from, a Florida business transaction and now withstand a lawsuit in this forum. [Plaintiff] has shown that haling [Defendant] into this jurisdiction comports with traditional notions of fair play and substantial justice.63
The constitutional threshold of minimum contacts was also addressed in Shelter Mutual Insurance Company v. Frederick64. In Frederick, the Fifth District interpreted Florida statutes §626.906 and 48.193 in the context of an insured seeking to recover for under-insured motorist (“UIM”) benefits. The Fifth District analyzed multiple authority65, noted distinction66, and concluded:
[U]nder Florida law, an out-of-state insurer’s act of renewing a policy of insurance in Kansas after its agent was informed that the insured was going to be in Florida for a while was not enough to subject the insurer to Jurisdiction of Florida courts. . .Even if section 48.193(1)(d) were properly pleaded and its requirements complied with, the fact that [the insured] was located in Florida in the instant the policy was renewed will not support in personam jurisdiction over [the insurer] in Florida’s courts.67
In furtherance of dismissal, East-European also challenges whether “a non-Florida resident cannot invoke jurisdiction under §626.906”.68 Notwithstanding, the Third District, in Winterthur International, Ltd. v. Palacios69, specifically held: “[The insurer’s] initial contention ‘that section 626.906 is unavailable to a nonresident as a matter of law’ must be rejected.”
Besides Palacios, in this case, as mentioned70, the Court notes disputed issues of fact as to residency. Multiple correspondence were mailed to the Tampa address, which, as alleged, is jointly owned by Plaintiff and his daughter, Sylvia Borden. Further, Sylvia Borden, as business manager, initiated contact with Ocean, in Florida, on behalf of Plaintiff to procure insurance from East-European. The premiums were paid, in Florida, from a jointly issued Florida account. Sylvia Borden signed the checks. The Cover Note and Notice of Cancellation, as authorized71, were issued and delivered through the chain to the Florida address prior to loss. Also, at the time of loss, neither Plaintiff nor Sylvia Borden had received the Policy. In any event, Florida contacts are primarily viewed from the prospective of East-European as opposed to Plaintiff. Accordingly, primary focus shall center on the nature of East-European’s contacts, in Florida, through the chain of brokers rather than the disputed residence, as alleged, of Plaintiff.72
As to Barnhardt’s agency73, whether express, implied, or apparent, East-European refutes same.74 East-European denies: (1) supplying “any blank forms, applications, stationary, or other supplies to be used in soliciting, negotiating, or affecting [the policy]”75; (2) direct contact with Barnhardt, the Insured, Ocean, or MICI; and, (3) authorization for Barnhardt to issue Cover Note #MH000601.76 Despite refutation, the Court finds East-European accepted premiums paid and delivered to Barnhardt, in Florida, by Plaintiff pursuant to the issuance of a cover note. East-European’s acceptance of the premiums, at a minimum, established implied authority. Implied or apparent authority is further illustrated by the preparation, issuance, and delivery of the Notice of Cancellation as well as, upon payment, recission of same.77 In like manner, East-European never directly contacted Plaintiff nor did Plaintiff directly contact East-European. Plaintiff was not aware of any limitation on Barnhardt’s authority nor put on notice to investigate otherwise.78 All correspondence reliably and routinely traveled up and down the brokerage chain draped with authority.79
After determining agency, whether express, implied, or apparent, the Court finds the relationship between the Parties is centered in Florida. Although the coverage terms and conditions remain in dispute, East-European issued and delivered same, in Florida, through the chain of brokers, to Plaintiff, for profit. Thus, collectively, it is reasonably foreseeable East-European could be haled into court, in Florida, for transacting insurance and receiving benefits therefrom. Accordingly, after examining the UIPL, Bookman, Walter, Pentar, Meijer, Toshiba, Frederick, Palacios, Mills, Drake, Parliament, Mason, and others, the Court finds, in this particular case, sufficient jurisdictional allegations exist within the constitutional parameters of the Due Process Clause of the Fourteenth Amendment that support “traditional notions of fair play and substantial justice” for subjecting East-European to the jurisdiction of the Court. Based on East-European’s purposeful activities, Plaintiff has satisfied the requirements for in personam jurisdiction.
It is therefore ORDERED AND ADJUDGED that East-European’s Motion to Quash is hereby DENIED, and the Court abates further action against Southern Seas, Ocean, and Barnhardt pending additional discovery.80 Notwithstanding abatement, the Parties are Ordered to continue discovery regarding any matter, not privileged, relevant to the subject matter of the pending action between Plaintiff (Insured) and East-European (Insurer).81 The Court reserves jurisdiction for such other relief, if any, as deemed appropriate.
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1See Renewed Motion to Quash stamped April 17, 2003. See also Motion to Quash Service of Barnhardt Marine Insurance, Inc.’s Cross-Claim stamped May 8, 2003. See also Memorandum in Support of Alfa Insurance PLC’s Motion to Quash signed August 19, 2003.
2See Ocean Insurance Management Inc.’s Motion to Dismiss Plaintiff’s Amended Complaint for Failure to State a Cause of Action or in the Alternative, Abate and/or Stay Action stamped April 28, 2003.
3See Motion to Dismiss Amended Complaint stamped May 2, 2003.
4See Motion to Strike or Dismiss Claims Against Southern Seas stamped May 21, 2003.
5See Plaintiff’s Response to Defendant Insurer’s Motion to Quash signed August 5, 2003; See also Defendant Ocean Insurance Management Inc.’s Post Hearing Memorandum of Law Opposing East European Insurance Company & Alfa Insurance Company’s Renewed Motion to Quash Service of Process signed August 19, 2003.
6Pleadings, Depositions (Jennifer A. DeAngelo), Answers, Admissions, Affidavits (Sylvia Borden & Vladmir Zelenchuk), Documentation, and Correspondence.
7As alleged, Sylvia Borden has been a resident of Florida since 1995 and is the daughter of and business manager for her father, Victor K. Borden. As sworn, Ms. Borden’s duties include obtaining insurance for her father’s fishing vessels. The Court notes multiple correspondence delivered to Ms. Borden’s mailing address: 3118 W. San Pedro St., Tampa, Florida 33629. Further, the Court notes said address on the checks (Victor K. Borden, Jr. or Sylvia Borden) signed by Ms. Borden for payment of premium. See Notice of Cancellation signed by John Nguyen (Barnhardt Marine Insurance, Inc.) (Noting delivery to Insured, Victor Borden, Jr., at Tampa address). See also January 31, 2002 Letter mailed by Jennifer A. DeAngelo (Barnhardt) in Jacksonville, Florida directly to Ms. Borden in Tampa, Florida (Indicating the premium was forwarded to the underwriter and cancellation notice rescinded).
8Shipowner, insured, and father of Sylvia Borden. The Court notes Cover Note #MH000601 indicates the following address: Guanaja, Bay Islands of Honduras, C.A. See Cover Note #MH000601 dated July 31, 2001 at Jacksonville, Florida signed by John Nguyen (Barnhardt).
9Ocean Insurance Management, Inc. is located in Tampa, Florida. Plaintiff alleges customarily dealing with Ocean for several years when procuring coverage. In prior years, as sworn, Plaintiff alleges Ocean secured insurance from Lloyds Underwriters (London, England) and RLI Insurance Company (Peoria, Illinois) for the vessels. Notwithstanding, the Court notes Ocean, despite conflicting record evidence, denies acting as broker or agent. See Response 6 of Defendant Ocean Insurance Management, Inc.’s Responses to Plaintiff’s Request for Admissions stamped April 25, 2003; See also August 6, 2001 Fax Cover Sheet from Ocean Insurance Management, Inc. sent by Barry Rowland (Ocean) to Eva Poole (Barnhardt)(“I am not acting as the agent/broker on this account and I will therefore submit net premium to you.”).
10Buccaneer ($175,000.00 Hull and Machinery with $10,000.00 deductible, Miss Sheray ($125,000.00 Hull and Machinery with $10,000.00 deductible), and Captain Adolfo ($140,000.00 Hull and Machinery with $10,000.00 deductible).
11Barnhardt Marine Insurance, Inc. is located in Jacksonville, Florida.
12“The Southern Seas web-site describes itself as an ‘alternative Fixed Cost P & I operation currently developing a strong foothold in the international marine insurance marketplace’ with locations in various places including an office in Panama City, Florida and with 2K Shipping in Turkey.” (Emphasis added) See Page 4 of Plaintiff’s Response to Defendant Insurer’s Motion to Quash signed August 5, 2003.
13“The web-site of 2K Shipping and Trading advises that 2K Shipping & Trading provides tailored insurance policies to suit ship owners and operators. It describes a joint venture with Southern Seas and lists its ‘institutional partners’ to include Southern Seas and Avest. Avest is the company that was listed as the successor. . . to East-European Insurance Company on the [Notice of Cancellation].” See Page 4 of Plaintiff’s Response to Defendant Insurer’s Motion to Quash signed August 5, 2003. Plaintiff also alleges “2K Shipping & Trading has a representative office in Miami, Florida under the name Horizon Shipping & Trading USA Inc. (“Horizon”).” Id.
14The Court notes Alfa Insurance PLC (“Alfa”) as the successor of East-European Insurance Company.
15See Page 2 of Memorandum in Support of Alfa Insurance PLC’s Motion to Quash stamped August 20, 2003 (“Victor Borden (apparently through his daughter) approached Ocean Marine to secure marine insurance for his three fishing vessels located in Honduras. Ocean Marine is located in Tampa, Florida. Ocean Marine, in turn, approached Barnhardt Marine, an insurance broker located in Jacksonville, Florida. Barnhardt, in turn, contacted Marine Insurance Consultants International, a British insurance broker. Marine Insurance Consultants International contacted Southern Seas, another British insurance broker. Southern Seas contacted 2K Shipping, a Turkish insurance broker. Finally, 2K Shipping contacted Alfa. After negotiations, which took place through the noted chain of brokers, Alfa issued the policy covering Borden’s three vessels. . .”).
16See July 27, 2001 Fax from Doug Wooding (Southern Seas) to B.L. Hailstone (MICI); See also July 31, 2001 Fax from Doug Wooding (Southern Seas) to Eva Pool (Barnhardt) and return of same (indicating acceptance of the quote, coverage, and a total gross premium of $20,150.00 for the three (3) vessels.); and, August 14, 2001 Letter from MICI to Barnhardt (acknowledging Cover Note #MH000601 prior to effecting insurance through Southern Seas, as stated under Security at Page 2).
17See Cover Note #MH000601 dated July 31, 2001 at Jacksonville, Florida signed by John Nguyen (Barnhardt); See also Plaintiff’s Response to Defendant Insurer’s Motion to Quash dated August 5, 2003 (“The Cover Note was sent by Barnhardt Marine to Ocean Insurance in Tampa, Florida who in turn delivered the [C]over [N]ote to Ms. Borden by mail addressed to [her Tampa residence] owned by Victor and Sylvia Borden.”).
18The Cover Note #MH000601 confined each vessel to the waters of Honduras and the Carribean Sea. See Cover Note #MH000601 dated July 31, 2001 at Jacksonville, Florida signed by John Nguyen (Barnhardt).
19See Bank of America Advantage Check #2297 dated August 10, 2001 in the amount of $5,108.39 paid to the order of Barnhardt Marine Insurance signed by Silvia Borden from the joint account of Victor K. Borden, Jr. and Silvia Borden.
20There is no dispute East-European received the premium payments through the chain.
21See December 11, 2001 Fax from Barrie L. Hailstone (MICI) to Doug Wooding (Southern Seas) (“Thank you for faxing me. . .copies of the issued Policy documents as produced by Underwriters. As advised in our subsequent telephone conversation, these documents are hopelessly wrong. It would appear that my comments, directives and corrections made in early August. . .have been ignored. . . . .The documents as they stand at present are unacceptable and not what was agreed at the inception of the Risk. I am very disappointed to say the least that after four months they are still wrong. . . . .[T]he reference to the policy wording is also incorrect. No such wording exists. . .”); See also May 1, 2002 Fax from Barrie L. Hailstone to Keith Atkinson, et al. (Noting East-European ignored advice highlighting errors).
22See Notice of Cancellation for Policy #MH000601 signed by John Nguyen (Barnhardt) (indicates cancellation to take effect January 31, 2002). The Court notes the effective cancellation date subsequent to the date of loss.
23The Court notes the salutation in the Notice of Cancellation lists Plaintiff at the Tampa residence.
24The Court notes “Avest Insurance Company Formally Known as East European of Russia” in the upper right hand corner of said Notice of Cancellation.
25See January 30, 2002 Letter from Sylvia Borden to Jennifer [De]Angelo (Stating two (2) checks for full yearly premium on the three (3) vessels was enclosed and thanking Ms. [De]Angelo for her explanation directly.); See also Bank of America Advantage Check #756 (dated January 30, 2002) in the amount of $6,000.00 and #757 (dated February 14, 2002) in the amount of $3,831.72 paid to the order of Barnhardt Marine Insurance signed by Silvia Borden from the joint account of Victor K. Borden, Jr. and Silvia Borden; and, FedEx USA Airbill 82929 064618 dated January 30, 2002 from Sylvia Borden in Tampa, Florida to Jennifer [De]Angelo (Barnhardt) in Jacksonville, Florida.
26See January 31, 2002 Letter from Jennifer A. DeAngelo to Sylvia Borden (Confirming the remainder of the yearly premium was received and forwarded to East-European and noting recission of the cancellation notice.).
27See Page 4 of Plaintiff’s Response to Defendant Insurer’s Motion to Quash dated August 5, 2003.
28“[I]f we had been advised that the insurance policy contained terms that might require us to submit to arbitration in Moscow, Russia before the Maritime Arbitration Commission of the Russian Chamber of Commerce and Industry, we would have immediately rejected the insurance and not paid any further premium. . .[I]f we had been advised that the insurance policy contained terms that might require that all disputes under the policy might be subject to Russian legislation or English legislation, we would have immediately rejected the insurance and not paid any further premium. . .” See ¶¶10-11 of Affidavit of Sylvia Borden.
29“In the present case, [East-European] provided ‘no blank forms, applications, stationary, or other supplies to be used in soliciting, negotiating, or effecting contracts of insurance’. Nor did [East-European] make any representation whatsoever concerning Barnhardt. [East-European] never had any communication with either Barnhardt, Ocean[ ], or [P]laintiff. Thus, [East-European] could not possibly have made any representation to those entities. Moreover, . . .Barnhardt became involved in procuring insurance for [Plaintiff’s] vessels before [East-European] had ever heard of [Plaintiff].” See Page 10 of East-European Insurance Company’s Response to Plaintiff’s Request for Admissions stamped February 7, 2003.
30See FN29.
31East-European submits Plaintiff breached a warranty by misrepresenting the vessel would only operate in “sheltered waters”. See Page 2 of Memorandum in Support of Alfa Insurance PLC’s Motion to Quash stamped August 20, 2003.
32See ¶ 1of Renewed Motion to Quash stamped April 17, 2003; See also ¶ 2 of Affidavit of Vladimir Zelenchuk signed and acknowledged November 1, 2002.
33See ¶ 2 of Renewed Motion to Quash stamped April 17, 2003; See also ¶ 3 Affidavit of Vladimir Zelenchuk signed and acknowledged November 1, 2002.
34See ¶ 3of Renewed Motion to Quash stamped April 17, 2003.
35Id.
36Id. at ¶ 4 .
37See ¶¶4-9 & 11 of Affidavit of Vladimir Zelenchuk signed and acknowledged November 1, 2002.
38See ¶¶10 & 12 of Affidavit of Vladimir Zelenchuk signed and acknowledged November 1, 2002.
39See Remick v. Mandredy, 238 F.3d 248, 255 (3rd Cir. 2001) (If a court has specific jurisdiction over a defendant as to a particular claim asserted by plaintiff, it does not necessarily mean that it has personal jurisdiction over that same defendant as to plaintiff’s other claims.); See also Silver v. Levinson, 648 So.2d 240, 243 (Fla. 4th DCA 1995) (Stating the single most important factor to consider in determining whether subjecting the out-of-state defendant to suit in state is violations of Due Process. The court must determine whether the defendant’s conduct and connection with the forum are such that he [or she or it] should reasonably anticipate being haled into court there. Further, this factor must be viewed from the perspective of the defendant as opposed to the plaintiff.).
40Id.
41See Bookman v. Kah Incorporated, Inc., 614 So.2d 1180 (Fla. 1st DCA 1993) (An insurer’s extension or renewal was not synonymous with issuing and delivering a policy in Florida because the insurer did not voluntarily avail itself of business opportunity in Florida.).
42Id. at 1181.
43See Walter v. Blue Cross & Blue Shield United of Wisconsin, 181 F.3d 1198, 1203 (11th Cir. 1999) (“The burden is on the plaintiff to establish jurisdiction when challenged by defendant.” Quoting Familia De Boom v. Arosa Mercantil, S.A., 629 F.2d 1134, 1138 (5th Cir. 1980)).
44See Bookman at 1182.
45Compare Toshiba Funding Authority Ltd. v. Somerset Marine, Inc., 923 F.Supp. 982 (S.D. Tx. 1996) (Stating nonresident marine insurer lacked sufficient contacts with forum to support personal jurisdiction. More particularly, the court held: ” [T] he only connection this case has to [the forum state] is the fact that [the plaintiff’s] lawyer, who was apparently involved in the procurement of insurance for the yacht, is located in the [forum state]. However, the in-state presence of an attorney representing a foreign client in matters not connected to the state is insufficient to give [the forum state] an interest in resolving the dispute between [plaintiff] and [defendant].”). Unlike Toshiba, in this case, the contacts did not involve the procurement of insurance through an attorney. Rather, Sylvia Borden, the daughter and alleged business manager of Plaintiff, initiated contact with Ocean, in Florida, to procure insurance from East-European. The premiums were paid, in Florida, from a jointly issued Florida account. Sylvia Borden signed the checks. Additionally, multiple correspondence were mailed and faxed to the Tampa address, which, as alleged, is jointly owned by Plaintiff and Sylvia Borden. Thus, the underlying facts in the case sub judice are sufficiently distinguished from Toshiba.
46See FN44 (Insured failed to establish personal jurisdiction over insurer under Florida statute §626.906 simply because insurer accepted premiums from Florida for an insurance policy issued and delivered in Wisconsin.).
47The Court notes the Cover Note was received in Florida prior to loss.
48See Walter v. Blue Cross & Blue Shield United of Wisconsin at 1204. The Court notes the Cover Note and Policy were issued voluntarily rather than compelled by law.
49Id. at 1205.
50See Baker Electronics v. Pentar, 219 F.Supp.2d 1260 (M.D. Fla. 2002) (suit between a Florida-based producer of in-flight entertainment systems and a Washington-based producer of avionics products).
51Id. at 1261.
52“Florida’s long-arm statute must be strictly construed, and the burden of proving facts that justify use of the statute is on the plaintiff.” Id. at 1262; See also FN44. The Court notes Bookman and Walter provided an additional statutory method for establishing jurisdiction in the context of unauthorized insurers.
53Id. at 1261.
54Id. at 1263 (“To establish that a defendant is carrying on a business for the purposes of the long-arm statute, the activities of the defendant must be considered collectively and show a general course of business activity in the state for pecuniary benefit.”).
55§48.193(1)(a) (“Operating, conducting, engaging in, or carrying on a business or business venture in this state . . .”).
56§48.193(1)(g) (“Breaching a contract in this state by failing to perform acts required by the contract to be performed in this state.”) 57See Baker Electronics v. Pentar at 1263.
58Quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-472 (1985).
59Quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 287 (1980).
60See Baker Electronics v. Pentar at 1264.
61Id.
62Id.; See also Response Reward Systems, L.C. v. Meijer, Incorporated, 189 F.Supp.2d 1332 (M.D. Fla. 2002) (Patent infringement action lacking sufficient contacts to exercise personal jurisdiction in Florida. The court used the same three-part test for considering the collective activity of defendant. One of the alleged collective activities included defendant’s web-site. As to the web-site, the Middle District noted: “The mere fact that [d]efendant’s website is accessible to Florida residents is not enough to give Florida a significant interest in adjudicating the matter. If that were the case, the State of Florida would have interest in virtually every lawsuit that arose from an internet site, a fact that would go against the interests of the interstate judicial system and the fundamental substantive social policies of the states.”).
63Id. at 1265.
64See Shelter Mutual Insurance Company v. Frederick, 654 So.2d 656 (Fla. 5th DCA 1995) (Simply because the insured was located in Florida at the time of renewal was not enough to support in personam jurisdiction on a policy issued by the out-of-state insurer.).
65“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. . . . .[Likewise,] the Fourth District, in Kanawha Insurance Co. v. Morrison, 394 So.2d 1147 (Fla. 4th DCA 1981) . . . held: ‘Payment of premiums for life insurance by mail from Florida to a foreign insurer is similarly insufficient to justify in personam jurisdiction over the foreign insurer. That aspect of 626.906 Florida Statutes (1979) refers to and its effect is limited to a situation where the insurance contract is entered into or delivered in the State of Florida’.” Id. at 658. (Also noting the Second District, in Drake v. Scharlau, 353 So.2d 961 (Fla. 2d DCA 1978), ruled against specific jurisdiction since the policy was not issued or delivered to the insured in Florida.). In this case, the Court notes the Cover Note was issued and delivered to the insured in Florida.
66“The Third District appears to have deviated . . . in two cases . . . In Citizens Insurance Co. v. Bowman, 525 So.2d 991 (Fla. 3d DCA 1988), the court held that the Michigan insurer’s act of reissuing the policy to a known Florida resident was an act which subjected the company to the jurisdiction of Florida courts and the substituted service of process authorized by section 626.906. Subsequently, in First of Georgia Insurance Co. v. Lloyd, 557 So.2d 138 (Fla. 3d DCA 1990), the Third District held that where a Georgia insurer increased coverage on an insured vehicle and collected additional premium from the insured, after learning that the insured had moved to Florida, the insurer was subject to service of process under section 626.906. Both of these opinions are short and few facts given. In neither case does the court say where the policies were issued and delivered.” (Emphasis added) Id. at 659.
67Id.
68See Page 4 of Memorandum in Support of Alfa Insurance PLC’s Motion to Quash stamped August 20, 2003.
69See Winterthur International, Ltd. v. Palacios, 559 So.2d 1214 (Fla. 3d DCA 1990) (Peruvian insured sought coverage against insurer organized under the laws of Bermuda creating disputable issues of fact as to personal jurisdiction in Florida. The policy was issued by an authorized agent of the insurer in Florida and delivered to the insured in Peru.).
70See FN46.
71See Notice of Cancellation listing John Nguyen (Barnhardt) as East-European’s “Authorized Representative”.
72Accord Kentucky Farm Bureau Mutual Insurance Company v. Mills, 367 So.2d 673, 675 (Fla. 2d DCA 1979) (“[T]he test for establishing personal jurisdiction over a defendant is ‘sufficient minimum contacts’ between the defendant and the state where jurisdiction is alleged.”).
73See Almerico v. RLI Insurance Company, 716 So.2d 774 (Fla. 1998) (“[C]ivil liability for an agent’s conduct may be imposed upon insurers who cloak insurance agents with sufficient indicia of agency to establish an agency relationship.”).
74Id. (Insurer denied claim asserting it would not have issued the policy with knowledge of either a youthful driver or high performance car. As a result, a coverage issue developed requiring a determination of the nature of an agency relationship between the insurer and an alleged agent. The Florida Supreme Court examined the legal standard underlying the theory of agency in the context of Florida’s insurance statutes and stated: “[A] determination that a particular agent is an insurance broker may not conclude the issue of agency relationship. In fact, petitioners contend here that there is an issue of statutory agency, as well as issues of actual or apparent authority based on the conduct of the insurer. . . . . Florida case law provides that an insurer may be held accountable for the actions of those whom it cloaks with ‘apparent agency’.”); Contrast AMI Insurance Agency v. Elie, 394 So.2d 1061, 1062 (Fla. 3d 1981) (In the context of denying coverage for alleged misrepresentations regarding non-covered commercial use of an insured vehicle, the Third District held: “Under the general rule,. . .an insurance broker is the agent of the insured in matters connected with the procurement of insurance . . . An insurance broker is ordinarily employed by the person seeking insurance, and, when so employed, is to be distinguished from the ordinary insurance agent, who is employed by insurance companies to solicit and write insurance. . .The fact that the insurer furnished the broker an application blank which was given to the person requesting insurance does not make the broker an agent of the insurer issuing the policy.”).
75Contrast Florida Statute §626.342(3). Furnishing supplies to unlicensed life, health, or general lines agent prohibited; civil liability. “(3) This section does not apply to the placing of surplus lines business under the provisions of ss. 626.913-626.937.” The Court notes surplus lines business herein.
76See Page 13 of Memorandum in Support of Alfa Insurance PLC’s Motion to Quash stamped August 20, 2003.
77See Pages 6-7 above. Accord Don Slack Insurance, Inc. v. Fidelity & Casualty Company of New York, 385 So.2d 1061, 1064 (Fla. 5th DCA 1980) (In the context of sending a proper notice of cancellation, the Fifth District held: “[T]he duty to send it to the insured cannot be delegated to an independent insurance agent. . .”).
78See Almerico v. RLI Insurance Company at 780 (“Facts within the knowledge of an authorized representative of the insurer while acting within the proper scope of his [or her] authority is knowledge of the insurance company.”); Accord Fidelity & Casualty Co. of New York v. Britt, 393 So.2d 41, 42 (Fla. 3d DCA 1981) (“Our decision is controlled by ‘[t]he rule that the acts of an agent performed within the scope of his real or apparent authority are binding upon his principal, regardless of whether the principal had knowledge of the agent’s act.”).
79See Nationwide Mutual Insurance v. Mason, 218 So.2d 185, 188 (Fla. 4th DCA 1969) (An insured that had no direct dealings with the insurer paid premiums to an agency prior to a specified date. The agency failed to forward the premiums to the insurer prior to said date. Thus, the insurer disputed coverage and denied agency. The Fourth District noted: “[I]f an agency relationship existed for the purpose of notification[,] it must have been one either imposed by law or implied in fact[.] [T]he court held that the company had clothed the agency with apparent authority and that it would not be heard to deny the burden of its contract once having accepted the benefit thereof.” The Fourth District also quoted: “[B]y the very fact of issuing a policy which requires, apparently, nothing but delivery and payment of premiums to put in force, the [c]ompany arms every man into whose hands it may come with the power to receive its money.”).
80See Blumberg v. USAA Casualty Insurance Company, 790 So.2d 1061, 1065 (Fla. 2001) (“If a negligence/malpractice action is filed prior to the time that a client’s right to sue in the related or underlying judicial proceeding has expired, or if a negligence/malpractice action is filed during the time that a related or underlying judicial proceeding is ongoing, then the defense can move for an abatement or stay of the claim on the ground that the negligence/malpractice action has not yet accrued.”). Despite the benefits of permitting Plaintiff to bring simultaneous causes of action arising from the same circumstances when a coverage dispute arises, in this case, at this stage of litigation, the Court finds Plaintiff’s cause(s) of action, if any, against Southern Seas, Ocean, and Barnhardt premature pending further discovery. Hence, the Court does not address the merits of Ocean Insurance Management Inc.’s Motion to Dismiss Plaintiff’s Amended Complaint for Failure to State a Cause of Action or in the Alternative, Abate and/or Stay Action, Barnhardt Marine Insurance’s Motion to Dismiss Amended Complaint, or the Motion to Strike or Dismiss Claims Against Southern Seas at this time.
81See Fla. R. Civ. Pro. Rule 1.280. General Provisions Governing Discovery. (“(b) Scope of Discovery . . . (1) In General. Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party . . . It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”).
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