HELEN POWELL OLSEN, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JOHNNIE B. OLSEN, APPELLANT,
v.
STATE FARM AUTOMOBILE INSURANCE CO., ETC., APPELLEE
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The court reversed a summary judgment that would have applied Illinois law (which bars recovery based on contributory negligence) to an uninsured motorist claim arising from a Florida resident's death in an Illinois automobile accident. The court held that Florida's adoption of comparative negligence constitutes a public policy exception to the traditional lex loci delicti rule, requiring application of Florida law instead.
The court reversed the summary judgment, holding that Florida's adoption of comparative negligence constitutes a public policy exception to lex loci delicti, and therefore Florida law should apply to the uninsured motorist claim rather than Illinois law. The court certified the case to the Florida Supreme Court with the question of whether contributory negligence can bar recovery in a personal injury suit filed in Florida for a tort occurring outside Florida.
[1] The doctrine of lex loci delicti requires a forum state to apply the law of the situs of the tort unless that law conflicts with the forum's public policy.
[2] Florida's adoption of comparative negligence demonstrates that the doctrine of contributory negligence as a bar to recovery is contrary to the public policy of Florida.
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Join FLexlaw to unlock all legal intelligence“Under the doctrine of lex loci delicti, a forum state applies the law of the situs of the tort unless that law is contrary to the public policy of the forum state.”
Establishes the traditional rule and the public policy exception that the court applies
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Join FLexlaw to unlock all legal intelligenceJohnnie Olsen, a Florida resident insured by State Farm under a Florida automobile insurance policy, was killed in an automobile accident in Illinois …
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COBB, Judge.
In 1976, Johnnie Olsen was killed in an automobile accident in Illinois. At that time, he was a resident of Florida and insured by an automobile insurance policy issued in Florida by State Farm. The personal representative of his estate filed a demand for arbitration of any uninsured motorist benefits due under the policy, and asked that the arbitration be governed by the substantive law of Florida. State Farm then filed a suit for declaratory judgment in which it asked that any claim for uninsured motorist coverage be governed by the substantive law of Illinois. The reason for the difference in choice of laws is that Florida has adopted comparative negligence while Illinois has not.
State Farm filed a motion for summary judgment on the ground that Florida adheres to the doctrine of lex loci delicti. The trial court granted that motion and entered a final summary judgment in which it stated, “The law of the State of Illinois is controlling in determining the liability of the uninsured motorist in any arbitration which may be commenced in this action.” The personal representative of Johnnie Olsen’s estate has appealed that order. In the past Florida has adhered to the doctrine of lex loci delicti. Hopkins v. Lockheed Aircraft Corp., 201 So. 2d 743 (Fla. 1967); Bishop v. Florida Specialty Paint Co., 377 So. 2d 767 (Fla. 1st DCA 1979).1 Under the doctrine of lex loci delicti, a forum state applies the law of the situs of the tort unless that law is contrary to the public policy of the forum state.
In Hoffman v. Jones
our Florida Supreme Court abandoned the traditional concept of contributory negligence as a bar to recovery and adopted comparative negligence. That opinion described the discarded doctrine as “unjust and inequitable.” Subsequent to the Hoffman decision, the Florida Legislature incorporated the concept of allocation of fault into its Contribution Among Tortfeasors Act. Sec. 768.-31(3)(a), Fla.Stat. (Supp.1976).
We believe that the findings by the Florida Supreme Court in Hoffman and the subsequent recognition and implementation of that decision by the Florida Legislature clearly imply that the concept of contributory negligence as a bar to recovery is contrary to the public policy of this state. (As such, that concept should not be applied by the courts of this state under the doctrine of lex loci delicti.)
We, therefore, reverse the final summary judgment.
We deem this to be a matter of great public importance and therefore certify this case with the following question to the Florida Supreme Court:
In a personal injury suit filed in Florida for a tort alleged to have occurred outside of Florida, can the contributory negligence defense bar recovery?
REVERSED and REMANDED.
DAUKSCH, C. J., and FRANK D. UP-CHURCH, J., concur. . The Florida Supreme Court has granted certiorari and heard oral arguments in the Bishop case, but has not rendered a decision as of this time.
. 280 So. 2d 431 (Fla.1973).
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State Farm Mut. Auto. Ins. Co. v. Olsen, 406 So. 2d 1109 (Fla. 1981)…ADKINS, Justice. This cause is here on petition for writ of certiorari supported by certificate of the Fifth District Court of Appeal that its decision reported in 386 So. 2d 600 is one which involves a question of great public importance. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. (1972).. The present suit arose from an automobile accident occurring in Illinois in 1976 between an uninsured Illinois motorist and a…1 / 2
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Jemco, Inc. v. United Parcel Serv., Inc., 400 So. 2d 499 (Fla. 3d DCA 1981)…d in this state were not used. See Continental Mortgage Investors v. Sailboat Key, Inc., 395 So. 2d 507 (Fla. 1981); M/S Bremen v. Zapata Off-Shore Company, 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). Compare Olsen v. State Farm Insurance Co., 386 So. 2d 600 (Fla. 5th DCA 1980) (where the court held that the “unjust and inequitable” doctrine of contributory negligence, applicable in the fortuitous locus de-licti, was against Florida public policy). Lastly, we turn to the award of attorneys’ fees. The t…
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Futch v. Ryder Truck Rental, Inc., 391 So. 2d 808 (Fla. 5th DCA 1980)…red. However, since that time, this court has held that the harsh rule of contributory negligence is contrary to the public policy of this state and should not be applied under the lex loci delecti rule. Olsen v. State Farm Automobile Insurance Co., 386 So. 2d 600 (Fla. 5th DCA 1980). Shortly prior to oral argument in this case the Supreme Court rendered its opinion in Bishop v. Florida Specialty Paint Company, 389 So. 2d 999 (Fla.1980), receding from the inflexible lex loci delecti rule and adopting instead…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973)
- Hopkins v. Lockheed Aircraft Corp., 201 So. 2d 743 (Fla. 1967)
- Althea G. Bishop and William J. Bishop, Sr. v. Fla. Specialty Paint Co., 377 So. 2d 767 (Fla. 1st DCA 1979)