United States Court of Appeals,
Eleventh Circuit.
No. 95-3020.
Arthur MODDER and Gail Modder, Plaintiffs-Counter Defendants-
Appellants,
v.
AMERICAN NATIONAL LIFE INSURANCE COMPANY OF TEXAS, Defendant-
Counter Claimant-Appellee.
July 1, 1996.
Appeal from the United States District Court for the Middle
District of Florida. (No. 92-1243-CIV-T-24C), Elizabeth A. Jenkins,
Judge.
Before HATCHETT and ANDERSON, Circuit Judges, and WOOD*, Senior
Circuit Judge.
PER CURIAM:
CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT TO THE SUPREME COURT OF FLORIDA PURSUANT TO
ARTICLE V, SEC. 3(6) OF THE FLORIDA CONSTITUTION
TO THE SUPREME COURT OF FLORIDA AND ITS HONORABLE JUSTICES:
It appears to the United States Court of Appeals for the
Eleventh Circuit that this case involves an unanswered question of
Florida law that is determinative of this appeal. Therefore, we
certify the following question of law, based on the background
recited below, to the Supreme Court of Florida for instructions.
FACTS
Appellants, Arthur Modder and Gail Modder, contend the
exclusionary provision of section 627.6515(2), Florida Statutes
does not exempt appellee, American National Life Insurance Company
of Texas (Antex), from the all-inclusive language of the attorney's
*
Honorable Harlington Wood, Jr., Senior U.S. Circuit Judge
for the Seventh Circuit, sitting by designation.
fees provision under section 627.6698, Florida Statutes.
Appellants contend that because the legislature enacted the
attorney's fees provision after the exclusionary provision, the
legislature could not have contemplated that section 627.6515(2)
would exempt an insurer from fee liability under section 627.6698.
Alternatively, appellants contend that Antex failed to establish
that the National and Business Association (NBA), came within the
exclusionary provision of section 627.6515(2).
Antex contends that it issued and delivered its policy outside
of the state of Florida, satisfying all the requirements of the
exclusionary provision. Antex further contends that the NBA was
formed for purposes other than providing insurance and comprises an
association group under section 627.6515(2), thereby qualifying for
exemption from fee liability under section 627.6698. Antex
contends that the district court correctly interpreted the statutes
in question and denied the appellants' motion for attorney's fees.
PROCEDURAL HISTORY
Appellants sued Antex for reinstatement of a group health
insurance policy which Antex issued to them and later rescinded.
Antex counterclaimed asserting that appellants improperly
misrepresented facts to Antex in the application for insurance.
Ultimately, the appellants prevailed and Antex reinstated their
insurance coverage.
After receiving the favorable judgments, appellants filed a
motion for attorney's fees under section 627.6698, and Antex
opposed the motion arguing the exclusionary provision of section
627.6515(2) precluded attorney's fees against Antex. The district
court granted appellants' motion for attorney's fees against Antex
holding that Antex failed to establish that their insurance policy
fell within the exclusionary provision.
Antex filed a motion for reconsideration and submitted
additional evidence of their inclusion within the exclusionary
provision. The district court subsequently reversed the initial
order and denied attorney's fees to appellant Gail Modder.
Although the order only referenced Gail, the appellants submit that
the order also denied Arthur's claims. Both appellants appealed
the district court's order denying them attorney's fees.
DISCUSSION
We find that the parties in this appeal have raised issues of
first impression under Florida law. No Florida court has addressed
the application, if any, of the exclusionary provision of section
627.6515, Florida Statutes to the attorney's provision of section
627.6698, Florida Statutes. Because the outcome of this appeal
rests solely on the correct clarification of Florida law, we
refrain from resolving the issues and certify the question to the
highest court in Florida.
Accordingly, we certify the following question to the Supreme
Court of Florida:
DOES THE EXCLUSIONARY PROVISION OF SECTION 627.6515(2),
FLORIDA STATUTES EXEMPT AN INSURER FROM ATTORNEY'S FEES
LIABILITY UNDER SECTION 627.6698, FLORIDA STATUTES, AND IF SO,
HAS THE INSURER IN THIS CASE PROVIDED THE FACTUAL PREDICATE
NECESSARY TO COME WITHIN THE EXCLUSIONARY PROVISION.
The phrasing of this question is not intended to limit the
Supreme Court in considering the issue presented or the manner in
which it gives its answer. The entire record in this case and the
briefs of the parties shall be transmitted to the Supreme Court of
Florida for assistance in answering this question.
QUESTION CERTIFIED