IN THE SUPREME COURT OF FLORIDA. v. Case No.: SC ANSWER BRIEF ON JURISDICTION OF RESPONDENTS BARBARA REIS AND JOSEPH REIS

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1 IN THE SUPREME COURT OF FLORIDA STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Petitioner, v. Case No.: SC BARBARA REIS and JOSEPH REIS, Respondents. / ANSWER BRIEF ON JURISDICTION OF RESPONDENTS BARBARA REIS AND JOSEPH REIS DAVID H. BURNS Florida Bar No.: TALLEY KALEKO Florida Bar No.: Cox & Burns, P.A. 122 South Calhoun Street Tallahassee, Florida (850) Attorneys for Respondents

2 TABLE OF CONTENTS TABLE OF CONTENTS......i TABLE OF AUTHORITIES....ii STATEMENT OF THE CASE AND THE FACTS SUMMARY OF ARGUMENT. 3 ARGUMENT.4 A. Jurisdiction 4 B. The Majority Opinion Does Not Conflict With Supreme Court Precedent.4 C. The Treichel Opinion Does Not Create A Conflict With Sturiano...7 D. The Crabtree Opinion Does Not Create A Conflict With Sturiano... 9 CONCLUSION CERTIFICATE OF SERVICE..10 CERTIFICATE OF TYPE SIZE AND STYLE.. 10 ii

3 TABLE OF AUTHORITIES Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29 (Fla. 2000) Allstate Ins. Co. v. Boynton, 486 So. 2d 552, 555 (Fla. 1986) Crabtree v. State Farm Ins. Co., 632 So. 2d 736 (La. 1994)...9 Daniels v. East Alabama Paving, Inc., 740 So. 2d 1033, 1049 (Ala. 1999).....2, 7 Mackoul v. Fidelity & Casualty Co., 402 So. 2d 1259 (Fla. 1st DCA 1981) Reis v. State Farm, 926 So. 2d 415, 416 (Fla. 1st DCA 2006) 1 Skroh v. Travelers Ins. Co., 227 So. 2d 328 (Fla. 1st DCA 1969)..6 Sturiano v. Brooks, 523 So. 2d 1126 (Fla. 1988)...4, 6, 8, 9 Swire Pacific Holding, Inc. v. Zurich Ins. Co., 845 So. 2d 161 (Fla. 2003)...3 Treichel v. State Farm Mutual Automobile Ins. Co., 443 P. 2d 661 (Mont. 1997).7, 8 iii

4 STATEMENT OF CASE AND FACTS Respondents accept Petitioner s Statement of Case and Facts, except in one aspect. Petitioner states that in addition to the bodily injury claims of Barbara and Joseph Reis both made claims for injury resulting from being present in the accident and witnessing the death of Robert Reis (the emotional distress claims). Petitioner s Brief on Jurisdiction p. 2. Moreover, Petitioner states that the emotional distress claims were then tried to a jury and a verdict was rendered for these counts on a specially itemized verdict form. Petitioner s Brief on Jurisdiction p. 2. This case does not involve emotional distress claims. As stated in the First District Court of Appeal Majority Opinion, State Farm does not challenge the trial court s determination that the appellees damages were independently recoverable by appellees as part of their own bodily injuries arising from the accident. Reis v. State Farm, 926 So. 2d 415, 416 (Fla. 1st DCA 2006) (emphasis added). The Plaintiffs, Barbara and Joseph Reis, were both injured in the automobile collision and brought claims for their own bodily injuries under Alabama law pursuant to the express language of their UM policy with State Farm.. The State Farm policy stated that it would pay those damages which Barbara and Joseph Reis were legally entitled to collect from the 1

5 underinsured driver. Thus, the Florida contract itself provides for Alabama law to govern the determination of damages in this matter since the underinsured driver could only be sued in Alabama under Alabama tort law. Pursuant to the Alabama Supreme Court case of Daniels v. East Alabama Paving, Inc., 740 So. 2d 1033 (Ala. 1999), Barbara and Joseph Reis bodily injury claims included mental anguish damages arising from being physically injured in the collision and the circumstances of the collision, including witnessing the death of Robert Reis. Robert Reis was driving the vehicle at the time of the collision and was killed. Prior to any lawsuit being filed, State Farm paid the $100,000 limit to the estate of Robert Reis in settlement of the estate s claim, not including any survivors damages for Barbara or Joseph Reis, as they are not legally entitled to those claims under Alabama law. 2

6 SUMMARY OF ARGUMENT The Majority Opinion of the First District Court of Appeal is based upon a long standing principle of Florida law: where a contract can be read on the one hand so as to provide coverage but on the other hand so as to limit coverage, the contract is considered ambiguous; where a contract is ambiguous, the language should be interpreted broadly so as to provide coverage. Swire Pacific Holding, Inc. v. Zurich Ins. Co., 845 So. 2d 161 (Fla. 2003); Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29 (Fla. 2000). The Majority Opinion does not conflict with Sturiano v. Brooks, 523 So. 2d 1126 (Fla. 1988), whereby the contract language is interpreted based upon on the state law where the accident took place. Nothing in the Majority Opinion even implicates Florida s long standing contract choice of law rule, lex loci contractus. In fact, the Opinion s holding is based upon the fact that State Farm did not challenge the trial court s determination that the damages relating to the death of Robert Reis were part of the Reis nonderivative, independent bodily injury claims. Since State Farm did not appeal this point, the record is void of any facts upon which to argue a conflict with Sturiano. The basis of the damages claims at issue herein are not even before this Court. 3

7 Regardless of this fact, the Majority Opinion does not suggest that a court should look to the state where the collision took place to determine whether a claim is derivative. The Majority Opinion merely looks at some other state court opinions construing the identical State Farm policy language as examples for interpreting the per person provision of the policy. The Majority Opinion does not adopt either of those out-of-state court s positions but uses the opinions as persuasive in following Florida s long standing rule of contract law that an ambiguous policy provision should be interpreted broadly against the insurer. ARGUMENT A. Jurisdiction The Court should not accept jurisdiction of this matter as the First District Court of Appeal s Majority Opinion does not conflict with any decision of this Court and there is no other basis for jurisdiction. B. The Majority Opinion Does Not Conflict With Supreme Court Precedent. Nothing in the Majority Opinion conflicts with the principles of Sturiano v. Brooks, 523 So. 2d 1126 (Fla. 1988). State Farm contracted with Barbara and Joseph Reis to pay those damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured 4

8 vehicle. This language has been interpreted by the Florida courts to mean that the insured must have a claim against the tortfeasor which could be reduced to judgment in a court of law. Allstate Ins. Co. v. Boynton, 486 So. 2d 552, 555 (Fla. 1986). As the motor vehicle collision occurred in Alabama and the underinsured at-fault driver was an Alabama resident, any and all claims available against the tortfeasor would have to be brought in an Alabama court and Alabama law would govern the action. Thus, the Florida contract itself provides for Alabama law to govern the determination of the damages in this matter. Thus Alabama law establishes the universe of potentially recoverable claims. Next, a court pursuant to Florida law must determine under the insurance contract what amounts are payable for those claims and damages. The significant policy language at issue here is the per person limits definition of bodily injury to one person as including all injury and damage to others resulting from this bodily injury. State Farm posited one interpretation before the Appellate Court that any damage that can be related to another s injury by the broadest definition of resulting from is covered under the provision. The Reises posited that the line should be drawn between derivative claims and non-derivative claims. 5

9 Likewise, Sturiano stands for the proposition that the rule of lex loci contractus governs the applicable law to be applied in the interpretation of automobile insurance contracts. There has never been any dispute that Florida law, pursuant to the lex loci contractus rule, is the applicable law for interpreting the Per Person policy provision at issue herein. Florida courts interpreting similar per person language in insurance contracts have already held that derivative wrongful death claims and loss of consortium claims are covered under per person policy limits. See Mackoul v. Fidelity & Casualty Co., 402 So. 2d 1259 (Fla. 1st DCA 1981); Skroh v. Travelers Ins. Co., 227 So. 2d 328 (Fla. 1st DCA 1969). Alabama law, however, does not give Barbara and Joseph Reis any survivors claims. In fact, because this collision occurred in Alabama, Barbara and Joseph Reis have a much smaller range of damages available to them. Alabama law is unique in that Barbara and Joseph Reis mental anguish damages for witnessing the death of Robert Reis are part their own personal bodily injury claims and are not bystander emotional distress claims. Neither are those claims derivative to the Estate s claim for the death of Robert Reis. Alabama law provides that the jury may consider that Barbara and Joseph Reis witnessed the death of Robert Reis in the same collision, as part of 6

10 their own individual bodily injury claims. See Daniels v. East Alabama Paving, Inc., 740 So. 2d 1033 (Ala. 1999). The First DCA s Majority Opinion does not result in a situation where the interpretation of State Farm s policy will fluctuate according to the law of the state in which the collision occurs (hereinafter the forum state ). Whether the forum state has held that a wrongful death claim and/or a bystander emotional distress claim is derivative or non-derivative is not a factor in determining the applicable policy limits. The Majority Opinion does not tamper with the principle that it is Florida law that decides the interpretation of the contract language. Thus whether the claim either falls within the per person limits as derivative or within the per accident limit as non-derivative is determined by Florida law. The Majority Opinion expressly states that State Farm did not challenge the trial court s determination that the claims were independent bodily injury claims. Because the contract itself calls for the application of Alabama substantive law, the court in interpreting the policy language must follow Florida law and construe the policy broadly and in favor of coverage. C. The Treichel Opinion Does Not Create A Conflict With Sturiano The First DCA s Majority Opinion merely cites to the case of Treichel v. State Farm Mutual Automobile Ins. Co., 443 P. 2d 661 (Mont. 1997), as 7

11 typify[ying] decisions construing State Farm policy language. The Majority Opinion goes on to explain that because the claim at issue in Treichel was independent and non-derivative the court held that it was not covered under the per person limit but the per accident limit. The Majority Opinion does not discuss the Treichel Court s basis for the determination of the claim as non-derivative and independent. The issue of whether Montana applies the lex loci contractus rule or the substantial relationship test is not addressed or even mentioned by the Majority Opinion. This is because the Majority Opinion begins with the statement that, [i]n the present case, State Farm has not challenged the trial court's determination that the appellees claims are independent and nonderivative claims. The trial court's ruling here therefore accords with the Treichel construction of the policy language. Reis, 926 So. 2d at 419. Thus, the Majority cites to Treichel merely as an example of a court s construction of the State Farm policy s per person coverage as including only derivative claims. It is completely irrelevant to the discussion whether Montana, Iowa, Wisconsin, Texas, Colorado, or Michigan hold that bystander emotional distress claim are independent or derivative claims. Nothing about the Majority Opinion s citation to or reliance upon Treichel creates a conflict with the lex loci contractus rule or Sturiano. 8

12 D. The Crabtree Opinion Does Not Create A Conflict With Sturiano The same analysis used above can be applied in looking at the Majority Opinion s reliance upon Crabtree v. State Farm Ins. Co., 632 So. 2d 736 (La. 1994). The Majority Opinion cites to Crabtree as another approach to interpreting the identical State Farm policy language. In Crabtree the court holds that the per person definition does not include any bodily injury damages to another person in the same collision. The Majority Opinion once again explains its basis for reliance upon the opinion: State Farm does not challenge the trial court's determination that the appellees' damages were recoverable as part of their own bodily injuries arising out of the accident. The trial court's ruling here therefore accords with the Crabtree construction of the policy language. Hence, once again, there is no significance as to what State the collision occurred in or how that State defines bystander emotional distress claims. CONCLUSION The Majority Opinion does not directly nor indirectly conflict with this Court s decision in Sturiano v. Brooks, 523 So. 2d 1126 (Fla. 1988). The applicable policy language was interpreted pursuant to Florida law not Alabama law. 9

13 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been sent to Wiley Horton, Esq., Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., P.O. Box , Tallahassee, FL via regular U.S. Mail this day of July, DAVID H. BURNS CERTIFICATE OF TYPE SIZE AND STYLE This brief is typed using Times New Roman 14 point, a font that complies with the requirements of Fla. R. App. P (l). DAVID H. BURNS 10