While a citizen and resident of Illinois, petitioner purchased
there from respondent, an insurance company licensed to do business
in Illinois and Florida, an insurance policy covering "all risks"
of loss or damage to certain personal property having no fixed
situs. After moving to Florida, petitioner sustained losses there
on which respondent denied liability. More than 12 months after
discovery of the losses, petitioner sued respondent in a Federal
District Court in Florida, basing jurisdiction on diversity of
citizenship. That Court awarded a judgment to petitioner after
ruling that, (1) under Florida law, the losses were not excluded
from "all risks" coverage if they were caused by deliberate acts of
petitioner's wife, and (2) the suit was not barred by a provision
in the policy that suit on any claim for loss must be brought
within 12 months of discovery of the loss, apparently because a
Florida statute forbade enforcement of such a clause. Without
passing on these issues of local law, the Court of Appeals reversed
on the ground that Florida could not, consistently with the
requirements of due process, apply its statute to the "suits
clause" of this contract made in Illinois, where such a clause is
valid.
Held: the Court of Appeals should not have passed on
the constitutional question without first passing on the two issues
of local law, and not unless its decision on those issues made a
decision on the constitutional question necessary. Pp.
363 U. S.
208-212.
265 F.2d 522, judgment vacated and cause remanded.
Page 363 U. S. 208
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
In 1952, petitioner, while a citizen and resident of Illinois,
purchased from respondent in Illinois the contract of insurance
upon which this suit is based. The respondent is a British company
licensed to do business in Illinois, Florida, and nine other
States.
The policy, which petitioner bought for a lump sum, ran for
three years. Designated a "Personal Property Floater Policy (World
Wide)," it provides worldwide coverage against "all risks" of loss
or damage to the property covered, property generally classified as
personal property having no fixed situs. A provision of the policy,
which has given rise to this controversy, required that suit on any
claim for loss must be brought within twelve months of the
discovery of the loss.
Some months after purchasing the policy the petitioner moved to
Florida, where he brought this suit for losses sustained in Florida
in the winter of 1954-1955. Petitioner reported the losses to the
respondent on February 1, 1955, and, on April 1, 1955, respondent
denied liability.
The action, resting on diversity of citizenship, was instituted
in the United States District Court for the Southern District of
Florida on May 20, 1957, more than two years after discovery of the
losses. The respondent defended on two grounds: (1) that, under the
time limitation for bringing suit, a restriction concededly valid
under Illinois law, the suit was barred; and (2) that the "all
risks" coverage of the policy does not include the losses resulting
from willful injury to or appropriation of the insured property
Page 363 U. S. 209
by the insured's spouse. [
Footnote 1] The jury was charged that, if the losses were
caused by the deliberate acts of petitioner's wife, they were not
therefore excluded from coverage. The jury found for petitioner,
and judgment in the amount of $6,800 was entered. The District
Court, without opinion, denied a motion for judgment
non
obstante veredicto which was based,
inter alia, upon
the suit clause, apparently believing that Florida Statutes (1957),
§ 95.03 which is set out in the margin, [
Footnote 2] rendered the clause ineffective.
On appeal, the Court of Appeals for the Fifth Circuit reversed
(one judge dissenting), sustaining the defense based upon the suit
clause on the ground that Florida could not apply its statute to
this Illinois-made contract consistently with the requirements of
due process. 265 F.2d 522. The court considered the preliminary
question of state law -- whether the Florida statute § 95.03 in
fact applies to a contract made in these circumstances. Strangely
enough, it did not decide this threshold question, because it
apparently found it easier to decide the constitutional question
that would be presented only if the statute did apply. Such
disposition of a serious constitutional issue justified bringing
the case here. 361 U.S. 874.
By the settled canons of constitutional adjudication the
constitutional issue should have been reached only if, after
decision of two nonconstitutional questions, decision was
compelled. The lower court should have
Page 363 U. S. 210
first considered: (1) whether, under the law of Florida, § 95.03
is applicable to this contract; and (2) whether the losses sued
upon were within the "all risks" coverage of the policy if in fact
caused by petitioner's wife.
It would be a temerarious man who described the constitutional
question decided below as frivolous. The seriousness of the
question becomes manifest from a recital of the decisions of this
Court relevant to the determination of the issue on which the court
below passed.
In
Home Insurance Co. v. Dick, 281 U.
S. 397, the Court held that Texas could not
constitutionally apply its own law to invalidate a suit clause in a
contract of fire insurance covering a tugboat. The plaintiff was at
all pertinent times both a Texas domiciliary and a resident of
Mexico. The contract, of which he was an assignee, was made in
Mexico between a Mexican insurer which had no contact whatever with
Texas, and a Mexican resident. The premium was paid in Mexico, and
the policy covered the tug only while it was in Mexican waters. In
Hartford Accident & Indemnity Co. v. Delta & Pine Land
Co., 292 U. S. 143, the
Court held that Mississippi could not constitutionally apply its
own law to invalidate a contract clause limiting the insurer's
liability on a surety bond against defalcations by the insured's
employees "in any position, anywhere," to losses of which notice
was given within fifteen months after the termination of coverage.
The contract was made in Tennessee, where the insured had offices
and the insurer was licensed to do business. Mississippi's action
was struck down although the contract covered an ambulatory risk,
the default giving rise to the claim actually occurred in
Mississippi, the insurer was under license doing business there,
and the insured was incorporated there.
The most recent case in the series is
Watson v. Employers
Liability Assurance Corp., Ltd., 348 U. S.
66.
Page 363 U. S. 211
Without questioning either
Dick or
Delta &
Pine, the Court sustained Louisiana's application, in a suit
by a Louisiana citizen, of its own "direct action" statute,
although thereby it invalidated an express provision against direct
liability of the insurer in a contract negotiated and paid for
within Illinois and Massachusetts, in both of which the clause was
valid. The contract insured Toni, an Illinois corporation
distributing its product nationally, against liabilities arising
from the use of the product. The insurer was a British corporation
licensed to do business in several States, including Massachusetts,
Illinois and Louisiana. Toni had no contact with Louisiana, and
could not be served there. The Louisiana plaintiff had sustained
her injury in Louisiana. The Court found Louisiana's contact with
the subject justified its application of the statute to make an
insurer doing business in Louisiana amenable to suit by a locally
injured citizen.
The relevant factors of the present case are not identic either
with
Dick or
Delta & Pine or
Watson,
and not one of them can fairly be deemed controlling here. The
bearing of all three on the immediate situation would have to be
considered and appropriately evaluated in adjudicating the precise
constitutional issue presented by it were that issue inescapably
before us. The disposition of either of two unresolved state law
questions may settle this litigation. The Court of Appeals was
therefore not called upon initially to reach this constitutional
question; nor is this Court. The doctrine that the Court will not
"anticipate a question of constitutional law in advance of the
necessity of deciding it,"
Liverpool, N.Y. & P. S.S. Co. v.
Emigration Commissioners, 113 U. S. 33,
113 U. S. 39,
relied on by Mr. Justice Brandeis in his well known concurring
opinion in
Ashwander v. TVA, 297 U.
S. 288,
297 U. S.
347-348, is a well settled doctrine of this Court which,
because it carries a special weight in maintaining proper
harmony
Page 363 U. S. 212
in federal-state relations, must not yield to the claim of the
relatively minor inconvenience of postponement of decision. Of
course, we do not remotely hint at an answer to a question that is
prematurely put.
While both questions not disposed of by the Court of Appeals are
questions of local law, the question whether under Florida law §
95.03 is applicable to this contract is one on which the state
court's determination is controlling. But, as the Court of Appeals
indicated, it could not, on the available materials, make a
confident guess how the Florida Supreme Court would construe the
statute.
See, e.g., Hoagland v. Railway Express
Agency, 75 So. 2d
822;
Equitable Life Assurance Society v. McRee, 75
Fla. 257, 78 So. 22. The Florida Legislature, with rare foresight,
has dealt with the problem of authoritatively determining
unresolved state law involved in federal litigation by a statute
which permits a federal court to certify such a doubtful question
of state law to the Supreme Court of Florida for its decision.
Fla.Stat.Ann., 1957, § 25.031. [
Footnote 3] Even without such a facilitating statute we
have frequently deemed it appropriate, where a federal
constitutional question might be mooted thereby, to secure an
authoritative state court's determination of an unresolved question
of its local law.
See Allegheny County v. Frank Mashuda
Co., 360 U. S. 185,
360 U. S. 189,
and cases cited;
see also Meredith v. Winter Haven,
320 U. S. 228,
320 U. S.
236.
Vacated and remanded.
Page 363 U. S. 213
[
Footnote 1]
Certain property was taken from his home. Other property,
clothing, was burned, and a painting was slashed.
[
Footnote 2]
"All provisions and stipulations contained in any contract
whatever . . . fixing the period of time in which suits may be
instituted under any such contract . . . at a period of time less
than that provided by the statute of limitations of this state, are
hereby declared . . . to be illegal and void. No court in this
state shall give effect to any provision or stipulation of the
character mentioned in this section."
Section 95.11(3) provides a five-year limitation for actions on
written contracts not under seal.
[
Footnote 3]
The statute provides that the Supreme Court of Florida may
devise rules to govern such certifications; it appears that to date
such rules have not been promulgated.
See Kurland, Toward
a Cooperative Judicial Federalism, 24 F.R.D. 481, 489. It is not to
be assumed, however, that such rules are a jurisdictional
requirement for the entertainment by the Florida Supreme Court of a
certificate under § 25.031.
MR. JUSTICE BLACK, whom THE CHIEF JUSTICE and MR. JUSTICE
DOUGLAS join, dissenting.
The Court today holds that this Court and the federal courts
below must refrain from exercising their jurisdiction to decide
this lawsuit properly brought. It remands the case to the Court of
Appeals and implies that a state court should be the one to
determine two questions of state law to avoid a federal
constitutional question which is also presented. In so doing, I
believe this Court is carrying the doctrine of avoiding
constitutional questions to a wholly unjustifiable extreme. I agree
that it is frequently better not to decide constitutional questions
when decision of nonconstitutional questions also presented will
dispose of a case. But I do not agree that this is such an
occasion. The state law questions do not call for first
interpretation of a broad, many-pronged, state regulatory scheme.
[
Footnote 2/1] They do not involve
peculiarly local questions such as the eminent domain power a State
has allowed a city to exercise, [
Footnote 2/2] or the local land law of a State.
[
Footnote 2/3] Nor are the state
questions here difficult ones depending on ambiguous or vague state
law, [
Footnote 2/4] but instead
they border
Page 363 U. S. 214
on the frivolous. Since I think the answer to the constitutional
question also is clear, I believe we should decide all the
questions in the case. The Court's refusal to do so, together with
the language it uses, seems to me to be an automatic application of
"canons of constitutional adjudication" so absolute that a federal
court can never under any circumstances or conditions decide a
constitutional question if there is any possibility of turning a
case away on other grounds. I believe that there are times when a
constitutional question is so important that it should be decided
even though judicial ingenuity would find a way to escape it. I
would decide this case here and now.
The first state question is whether, under state interpretation,
the clause of this insurance policy which insures the petitioner
against "all risks," protects him against destruction and loss of
the property caused by his wife. [
Footnote 2/5] The policy does not intimate any exception
to its coverage for such a risk, although it has pages of small
printed type stating its extensions, limitations, exclusions and
general conditions. The United States District Judge who tried this
case, experienced in Florida law, not surprisingly paid scant
attention to this contention. No case in which we have ever
"abstained" from passing on difficult state questions offers the
faintest support for the holding that a contention so unlikely to
be sustained anywhere can be used as a reason to avoid passing on a
constitutional question, even one much more serious than I see the
one here to be.
The second state question that the Court is sending back, with
the suggestion that the Court of Appeals
Page 363 U. S. 215
should refer it to the Florida Supreme Court for decision, is
almost equally devoid of plausibility. A Florida state statute
provides that all contractual provisions fixing a period of time in
which suits may be brought under such contract at a period of time
less than that provided by the statute of limitations of Florida
are illegal and void. The statute also forbids any court in Florida
to "give effect to any provision or stipulation of the character
mentioned in this section." [
Footnote
2/6] Since the contract of insurance here provided for a period
of limitation shorter than the State's five-year period for
unsealed, written contracts, [
Footnote
2/7] this contractual provision would be void under the Florida
statute if it applies. [
Footnote
2/8] The only way to get ambiguity into this section is to
import it. Statutes of a similar nature exist in 31 States and the
District of Columbia. [
Footnote
2/9] They are in line with the protective safeguards that
States have felt it necessary to create so as to preserve a fair
opportunity for people who have bought and paid for insurance to go
to court and collect it. And state courts, in the main, have
interpreted and applied such statutes so as to carry out
Page 363 U. S. 216
the legislative policy adopted. [
Footnote 2/10] Florida's particular interest in this
very statute is shown by the fact that the Attorney General of the
State filed briefs and participated in oral argument to support
both the full meaning petitioner claimed for the statute and its
constitutionality when so interpreted. I see no reason to send this
particular question back to the Court of Appeals, much less,
ultimately, to the state court. The statute's plain language, its
interpretation by the experienced trial judge who sat on the case,
and its interpretation by the Attorney General of the State should
be sufficient to show to even the most doubtful that this state law
applies to this printed provision of the contract and requires the
company to try this lawsuit on its merits (unless, of course, the
statute is unconstitutional when so applied). I think no cloud
should be cast on the statute's clear meaning, and I certainly do
not think it is necessary to point out to the Florida court that it
also could, if it wished, avoid the constitutional question the
Court makes so much of by limiting the meaning the Florida
legislature obviously intended to give this statute. [
Footnote 2/11] If "maintaining proper
harmony in federal-state relations" is the objective of the Court,
I would think it best to give this statute its plain meaning and to
settle the constitutionality of this statute Florida passed
(according to its Attorney General) to protect its people.
In now come to the constitutional question which is avoided and
which I would decide. This insurance contract was made in the State
of Illinois. There are Illinois cases indicating that the
contractual provision shortening
Page 363 U. S. 217
the Illinois state statute of limitations might be treated as
valid in a court of that State. [
Footnote 2/12] There are no cases, however, indicating
that Illinois wanted to project its law into the State of Florida
so as to nullify a Florida law invalidating such contractual
provisions in Florida courts. [
Footnote 2/13] The constitutional question raised is
this. Since the policy's restrictive provision would probably be
upheld in Illinois courts in a suit on an Illinois contract, does
either the Due Process Clause or the Full Faith and Credit Clause
require Florida to pay it homage?
The Florida statute is, in my judgment, constitutional as
applied by the District Court in this case. I believe it violates
neither the Due Process Clause nor the Full Faith and Credit Clause
of the Constitution. There was a time in the evolution of conflict
of laws theories when the idea was championed that every detail and
element of a contract, every action taken under it, was governed by
the law of the place where the contract was made. This concept ran
into many difficulties. Was the contract made at the home office of
an insurance company or at the place where an agent dropped it in
the mail to send it to a man in another State? Exceptions sprang up
such as the rule applying the law of the place where the contract
was to be performed to issues of performance. Soon it was
discovered that it was almost as puzzling to tell where a contract
was intended to be performed or what part of activities under a
contract could be considered performance
Page 363 U. S. 218
as it had been to determine where a contract was made. These and
other such academic problems dissipated the dream of a fixed rule
or rules for deciding which law governed contract cases. As the
concepts developed, there came an emphasis upon having a contract
governed by the law which the parties intended to be applied. But
it was not always possible to tell which law the parties had agreed
upon, and there was resistance on the part of some jurisdictions
having close interests in the events leading to litigation to
applying foreign law, against their deeply felt policies, solely
because the parties at one time preferred it.
As business boomed throughout our growing country giving more
States than one an interest in what a contract meant and how it
should be enforced for the benefit of the citizens who made it or
for whose benefit it was made, practical men began to see that
there could not be one single rule of law to govern a contract in
which the citizens of many States were interested. One of the many
opinions of this Court recognizing that fact was
Pacific
Employers Ins. Co. v. Industrial Accident Comm'n, 306 U.
S. 493, in which Mr. Justice Stone, later Chief Justice,
stated that:
"[T]he conclusion is unavoidable that the full faith and credit
clause does not require one state to substitute for its own
statute, applicable to persons and events within it, the
conflicting statute of another state, even though that statute is
of controlling force in the courts of the state of its enactment
with respect to the same persons and events."
Id., at
306 U. S. 502.
Later, in
Klaxon Co. v. Stentor Electric Mfg. Co.,
313 U. S. 487, and
in
Griffin v. McCoach, 313 U. S. 498,
this Court recognized that the courts of a State are not compelled
to enforce all provisions of all contracts, but have much freedom
to exercise their own state policy in their own courts.
Page 363 U. S. 219
See also Pink v. A.A.A. Highway Express, 314 U.
S. 201;
Hoopeston Canning Co. v. Cullen,
318 U. S. 313.
[
Footnote 2/14]
After these and a host of other cases recognizing the
constitutional power of States to apply their own laws in many ways
to contracts made outside the State, we decided
Watson v.
Employers Liability Assurance Corp., 348 U. S.
66. That case involved a law of Louisiana which provided
that injured persons could bring direct actions against liability
insurance companies that had issued policies contracting to pay
judgments imposed against persons who had inflicted the injuries.
The insurance contract in that case, however, contained a clause,
binding and enforceable under the law of the places where the
contract was made and delivered, that prohibited direct action
against the insurance company until after final determination of
the insured's obligation to pay damages. A person injured in
Louisiana by an insured company sued the insurance company there
directly. Application of the Louisiana law was challenged as an
unconstitutional denial of equal protection, due process, full
faith and credit, and an unconstitutional impairment of contract.
We rejected all these contentions. The policy of insurance there,
like the one here, was to be given nationwide effect. We held
there, MR. JUSTICE FRANKFURTER disagreeing with the grounds of the
Court's opinion, that none of the provisions of the Constitution
relied on requires States automatically to subordinate their own
contract laws to the laws of other States in which contracts
happened to have been executed. We said:
"Where, as here, a contract affects the people of several
states, each may have interests that leave it free to enforce its
own contract policies."
Id. at
348 U. S.
73.
Page 363 U. S. 220
In the
Watson case, we also rejected a contention that
the cases relied on by the Court here as throwing a cloud upon the
Florida statute,
Hartford Accident & Indemnity Co. v. Delta
& Pine Land Co., 292 U. S. 143, and
Home Ins. Co. v. Dick, 281 U. S. 397,
required that we hold Louisiana's law unconstitutional. The reasons
we gave for rejecting the contention about those cases there apply
equally to the Florida statute here. In the
Dick case, the
Court's opinion carefully pointed out that the decision in that
case might have been different had activities relating to the
contract there held binding in Texas been carried on in that State.
And in the
Delta & Pine Land Co. case, we pointed out
that the Court had considered that the Mississippi activities in
connection with the policy sued on there were found to be so
"slight" and so "casual" that Mississippi could not apply its own
law. I myself have grave doubts that the
Delta & Pine Land
Co. case would be treated the same way today on its facts.
But, however that may be, as it stands, it does not require a
holding that Florida's law is unconstitutional. If thought to
suggest such a holding, it only means that we should decide this
case to remove any such suggestion once and for all. The only
philosophy on which the
Dick and
Delta & Pine Land
Co. cases could be made to apply here would be on the old idea
that the law of the place where the contract is made always governs
every activity under it, a rule that had been repudiated by courts
and commentators everywhere, especially as a constitutional rule.
[
Footnote 2/15]
Page 363 U. S. 221
Our later cases previously discussed express the only workable
rule for this country today. [
Footnote 2/16] Insurance companies, like other
contractors, do not confine their contractual activities and
obligations within state boundaries. They sell to customers who are
promised protection in States far away from the place where the
contract is made. In this very case, the policy was sold to Clay
with knowledge that he could take his property anywhere in the
world he saw fit without losing the protection of his insurance. In
fact, his contract was described on its face as a "Personal
Property Floater Policy (World Wide)." The contract did not even
attempt to provide that the law of Illinois would govern when suits
were filed anywhere else in the country. Shortly after the contract
was made, Clay moved to Florida and there he lived for several
years. His insured property was there all that time. The company
knew this fact. Particularly since the company was licensed to do
business in Florida, it must have known it might be sued there, and
that Florida courts would feel bound by Florida law.
In addition to the reasons already given for my view that
Florida law constitutionally may govern this case -- that Florida,
the forum State, has sufficient contacts with the parties, the
property insured and the lawsuit -- I would add that, when a
contractual provision is one dealing with limitations on actions,
it is particularly inappropriate to compel the forum State, as a
constitutional matter, to
Page 363 U. S. 222
apply the law of the place where the contract was "made." This
Court has long recognized that the States where lawsuits are tried
are free to apply their own statutes of limitations. This has been
the constitutional rule since the decision in 1839 of
M'Elmoyle v.
Cohen, 13 Pet. 312. The continued vitality of this
principle was recognized by the Court in
Wells v. Simonds
Abrasive Co., 345 U. S. 514,
345 U. S.
516-517. The only deviation from it appears to have been
Order of United Commercial Travelers v. Wolfe,
331 U. S. 586,
which applied a special rule freeing fraternal insurance companies
because of their "indivisible unity," a distinction to which I
registered my dissent. It is true that this case is not identical
with one in which the forum seeks to apply an ordinary statute of
limitations to a suit on a contract having no limitation clause.
Here, Florida, seeking to be sure that its own limitation rules and
no others apply to cases in its courts, has legislated that
contractual limitations of too short duration are invalid. The
Court of Appeals called it error to assume
"that the issue presented concerned the choice of the applicable
statute of limitations, rather than the choice of the substantive
law governing the validity of the contract itself."
But the same reasons for the view that the forum may refuse to
apply a foreign statute of limitations impel me to the view that
the forum may refuse to apply a foreign contract of limitations.
See Order of United Commercial Travelers v. Wolfe,
331 U. S. 586,
331 U. S.
627-630 (dissenting opinion).
And cf. Metropolitan
Cas. Ins. Co. v. Brownell, 294 U. S. 580.
The Court, however, says that there is a serious constitutional
question whether Florida can apply its own law here. Therefore, the
Court refuses to decide the question (and the related state
questions) on the ground, as I read the opinion, that there exists
an unbending, unyielding, automatic canon of constitutional
adjudication that, if a constitutional question is not "frivolous,"
the Court must
Page 363 U. S. 223
avoid it unless decision is "compelled" after disposition of all
nonconstitutional questions. In fact, the Court indicates that,
when a constitutional question lurks in the case, not even the
lower federal courts sitting in diversity jurisdiction should
decide the nonconstitutional questions. [
Footnote 2/17] Of course, this view is not
unprecedented altogether; it is in my opinion, however, wholly
unprecedented in a case such as this. I agree that there is a
judicial practice, wise perhaps in most instances, under which
courts do not ordinarily decide constitutional questions unless
essential to a decision of the case. [
Footnote 2/18] This practice extends back to the early
days of the country. But even the greatest of our judges have not
always followed it as a rigid rule. Perhaps, had they done so, the
great opinion of Chief Justice Marshall in
Marbury v.
Madison would never have been written. [
Footnote 2/19] Only if the practice of occasionally
avoiding decision of a constitutional question is first made into a
rule and then elevated to a position of absoluteness denied by some
even to constitutional commands themselves are we wise in avoiding
decision here. On the
Page 363 U. S. 224
other hand, if the power to avoid deciding constitutional issues
is discretionary, as I think it undoubtedly is, I believe that this
is not a proper case for its exercise.
Such a rigid, ironclad, all-encompassing rule as I understand
the Court to promulgate here is, in my judgment, bad for the
litigants, bad for the courts, and bad for the country. Litigants,
too, have a right to have their lawsuits decided without
unreasonable and unnecessary delay or expense. [
Footnote 2/20] There do come times, in my
judgment, when a constitutional question is so ripe for decision,
when its resolution is so much needed, that it would be proper to
decide the constitutional question even though there might be a
possibility or even a probability that, by sending a case back,
some nonconstitutional question might be decided in a way that
would remove the constitutional controversy from that particular
case. The fact that one case presenting the constitutional issue in
some clear form has survived the jurisdictional and practical
obstacles to adjudication, the fact that such an issue has been
tossed up from the maelstrom of trials and private disputes to the
height of our appellate courts, is one sign that the issue needs
deciding. However this particular case is or may be decided, the
pressing need for deciding this constitutional question will remain
the same. Our expanding commerce among the States guarantees that.
The constitutional question is squarely presented
Page 363 U. S. 225
and the way it is decided will have an important effect on the
laws of many States in addition to Florida. It is here now. Why not
decide it? Sometimes a conflict of view among the circuits and
among the States on a constitutional question, like such conflicts
on statutes or common law questions, reaches such proportions that
they cry out for an authoritative decision of our Court. At least
in such instances, I am not willing to tie myself down by a
judicially created rule that would bar deciding constitutional
questions when they get here. [
Footnote 2/21] Subscribing as I have to the belief that
there is virtue in the policy of not unnecessarily deciding
constitutional issues, I think it would be better to abandon that
policy entirely than to carry it to the extremes of the Court's
opinion today. In my judgment, the rule in the rigid and sweeping
form announced has not been the rule heretofore. It is true that
some dissents might possibly have gone so far, but I do not think
it can fairly be said that the whole Court has done so. That this
Court has not heretofore followed the dogmatic rule announced today
is very clear from our case of
Chicago v. Atchison, T. &
S.F. R. Co., 357 U. S. 77.
Cf. United States v. Sullivan, 332 U.
S. 689,
332 U. S.
692-694. In the
Chicago case, over a strong
dissent, the majority of the Court refused to avoid the
Page 363 U. S. 226
constitutional question on the ground that we should first wait
to have a city ordinance interpreted by Illinois courts. We
said:
"We see no ambiguity in the section which calls for
interpretation by the state courts.
Cf. Toomer v. Witsell,
334 U. S.
385. Remission to those courts would involve substantial
delay and expense, and the chance of a result different from that
reached below, on the issue of applicability, would appear to be
slight."
Id. at
357 U. S. 84.
This was a fair application of the constitutional avoidance
practice. [
Footnote 2/22]
The Court assumes that there is in Florida a method which will
enable the Court of Appeals for the Fifth Circuit to obtain a
decision of the Supreme Court of Florida by certifying to them the
two questions of state law here involved. Florida does have such a
law on paper, but evidently does not have one in fact. The state
statute, first passed in 1945 and now appearing as Fla.Stat.Ann.
(1959 Supp.) § 25.031, authorizes the Supreme Court of Florida to
provide rules for obtaining such certifications from federal
appellate courts, but the best information obtainable is that the
Supreme Court of Florida has never promulgated any such rules, and
evidently has never accepted such a certificate. [
Footnote 2/23] This is not difficult to
understand.
Page 363 U. S. 227
Perhaps state courts take no more pleasure than do federal
courts in deciding cases piecemeal on certificates. State courts
probably prefer to determine their questions of law with complete
records of cases in which they can enter final judgments before
them. It seems rather unfortunate for this petitioner that he is to
be made the guinea pig in the Court's effort to get the Supreme
Court of Florida to put into effect a law that it has deliberately
left unused for a period of 15 years. [
Footnote 2/24] This suit was filed three years ago and,
borrowing an expression, it would be a "temerarious man" who would
forecast that it is sure to get back to us again before three more
years. That would be all right if such an exasperating delay were
necessary in order to achieve fair and just consideration of this
case. I do not think it is necessary or justified in this case, and
I think the Court's handling of the case sets up a precedent of
such an extreme nature that the rule of avoiding constitutional
questions might begin to produce more evil consequences than
good.
I would affirm the judgment of the District Court.
[
Footnote 2/1]
See Harrison v. NAACP, 360 U.
S. 167 (a declaratory judgment case);
Rescue Army v.
Municipal Court of Los Angeles, 331 U.
S. 549;
Alabama State Federation of Labor v.
McAdory, 325 U. S. 450, and
Congress of Industrial Organizations v. McAdory,
325 U. S. 472
(declaratory judgment cases);
American Federation of Labor v.
Watson, 327 U. S. 582
(parallel action pending in state court).
And cf. Alabama
Public Service Comm'n v. Southern R. Co., 341 U.
S. 341;
Burford v. Sun Oil Co., 319 U.
S. 315;
Railroad Comm'n of Texas v. Pullman
Co., 312 U. S. 496
(cases involving injunctions or interference with state
regulations, law or administrative orders).
[
Footnote 2/2]
See Louisiana Power & Light Co. v. City of
Thibodaux, 360 U. S. 25.
[
Footnote 2/3]
See Thompson v. Magnolia Petroleum Co., 309 U.
S. 478.
[
Footnote 2/4]
In
Chicago v. Atchison, T. & S.F. R. Co.,
357 U. S. 77,
357 U. S. 84;
Albertson v. Millard, 345 U. S. 242
(1953), and
Toomer v. Witsell, 334 U.
S. 385 (1948), it was made clear that "abstention would
be improper if the statute was in fact reasonably clear. . . ."
Note, Abstention: An Exercise in Federalism, 108 U. of Pa.L.Rev.
226, 233 (1959).
[
Footnote 2/5]
The policy stated under "Perils Insured," "All risks of loss of
or damage to property covered except as hereinafter provided."
[
Footnote 2/6]
Fla.Stat., 1957, § 95.03. Relevant portions of the statute are
set forth in note 2 of the opinion of the Court.
[
Footnote 2/7]
Fla.Stat. § 95.11(3).
[
Footnote 2/8]
The suit clause in the contract provided:
"No suit, action or proceeding for the recovery of any claim
under this Policy shall be sustainable in any court of law or
equity unless the same be commenced within twelve (12) months next
after discovery by the Assured of the occurrence which gives rise
to the claim. Provided, however, that if by the laws of the state
within which this Policy is issued such limitation is invalid, then
any such claims shall be void unless such action, suit or
proceeding be commenced within the shortest limit of time permitted
by the laws of such state to be fixed herein."
[
Footnote 2/9]
See statutes referred to in Carnahan, Conflict of Laws
and Life Insurance Contracts (1958), §§ 26(h), n. 83 and 137. Also
four States have statutes dealing specifically with certificates of
fraternal benefit societies.
Id., § 26(h), n. 84.
[
Footnote 2/10]
See, e.g., Galliher v. State Mutual Life Ins. Co., 150
Ala. 543, 43 So. 883 (1907); Ehrenzweig, Contracts in the Conflict
of Laws, 59 Col.L.Rev. 973, 1000.
[
Footnote 2/11]
Cf. Harrison v. NAACP, 360 U.
S. 167,
360 U. S.
177-178.
[
Footnote 2/12]
The Circuit Court below cited
Trichelle v. Sherman &
Ellis, Inc., 259 Ill.App. 346;
Hartzell v. Maryland Cas.
Co., 163 Ill.App. 221.
Sun Ins. Office Limited v.
Clay, 265 F.2d 522, 524, note 2.
[
Footnote 2/13]
The Illinois cases cited by the court below as upholding
limitation clauses did not deal with events so connected with
foreign jurisdictions, statutes of policies as were those in the
present case. They merely held that Illinois courts would honor
limitation clauses in Illinois centered controversies.
See
363
U.S. 207fn2/15|>note 15,
infra.
[
Footnote 2/14]
But see Order of United Commercial Travelers v. Wolfe,
331 U. S. 586, in
which an exception was made with regard to policies issued by a
fraternal benefit society.
[
Footnote 2/15]
It has been pointed out that if a court of one State, in
applying the rule that the law of the place of making the contract
determines its validity, looks only to the internal law, and not
the conflict of laws rules of the foreign jurisdiction, it enforces
the rights not of the parties in the case before it, but of the
parties in some hypothetical case.
See Stumberg, Conflict
of Laws, 11-12, 228. Constitutionally requiring blind and unvarying
application of the internal law of the place of making is a return
to outmoded territorial and vested rights theories of conflict of
laws long ago outgrown by our jurisprudence.
And see generally, on application of the law of the
forum, Ehrenzweig, The Lex Fori -- Basic Rule in The Conflict of
Laws, 58 Mich.L.Rev. 637.
[
Footnote 2/16]
See also McGee v. International Life Ins. Co.,
355 U. S. 220;
Travelers Health Ass'n v. Virginia ex rel. State Corporation
Comm'n, 339 U. S. 643;
International Shoe Co. v. Washington, 326 U.
S. 310.
[
Footnote 2/17]
Cf. Penagaricano v. Allen Corp., 267 F.2d 550, 556
where Judge Woodbury, speaking for the Court, said:
"Indeed this ground for declining to exercise jurisdiction [the
'salutary policy of refraining from the unnecessary decision of
constitutional questions'] has been invoked in so many cases
decided by the United States Supreme Court as perhaps to give rise
to serious doubt as to whether the lower courts in fact have
'discretion' in this matter."
[
Footnote 2/18]
See, e.g., United States v. Raines, 362 U. S.
17,
362 U. S. 21
(citing
Barrows v. Jackson, 346 U.
S. 249).
[
Footnote 2/19]
5 U. S. 1 Cranch
137.
See 3 Beveridge, The Life of John Marshall, 132-133,
142; 1 Warren, The Supreme Court in United States History, 242-243.
And see 19 U. S.
Virginia, 6 Wheat. 264, where Chief Justice Marshall said:
"It is most true that this Court will not take jurisdiction if
it should not; but it is equally true that it must take
jurisdiction if it should. The judiciary cannot, as the legislature
may, avoid a measure because it approaches the confines of the
constitution. . . . With whatever doubts, with whatever
difficulties, a case may be attended, we must decide it if it be
brought before us."
[
Footnote 2/20]
This case was begun in 1957. The damage was sustained in late
1954 and early 1955. It has taken over a year to have this Court
rule on the decision of the Circuit Court below. Remand, some form
of transfer of part or all of the case to the state courts,
proceedings there and either appeal to this Court again or return
to the federal system and eventually return here, might possibly
even take 10 years or more.
See, e.g., the post-abstention
history of the
Windsor and
Spector cases in Note,
Consequences of Abstention by a Federal Court, 73 Harv.L.Rev. 1358
(1960).
[
Footnote 2/21]
There is a view, ably and clamorously urged by many, that would
consider the canon of constitutional avoidance as so broad that it
practically would be impossible ever to reach a constitutional
question. Should this view wholly prevail, the great decision of
Marbury v.
Madison, 1 Cranch 137, might just as well not have
been written. In that opinion Chief Justice Marshall said:
"The very essence of civil liberty certainly consists in the
right of every individual to claim the protection of the laws,
whenever he receives an injury. One of the first duties of
government is to afford that protection."
Id. at
5 U. S. 163. For
a general discussion of judicial restraint and this Court's powers
of review,
see C. L. Black, The People and The Court
(1960),
passim, particularly c. IV.
[
Footnote 2/22]
Five cases last Term include full discussions of the policy of
federal courts of waiting for state court determinations.
Martin v. Creasy, 360 U. S. 219;
Allegheny County v. Frank Mashuda Co., 360 U.
S. 185;
Harrison v. NAACP, 360 U.
S. 167;
Lassiter v. Northampton County Bd. of
Elections, 360 U. S. 45;
Louisiana Power & Light Co. v. City of Thibodaux,
360 U. S. 25.
See generally Wright, The Abstention Doctrine
Reconsidered, 37 Tex.L.Rev. 815, Note, 59 Col.L.Rev. 749.
[
Footnote 2/23]
See opinion of the Court,
ante, p.
363 U. S. 213,
note 3; Vestal, The Certified Question of Law, 36 Iowa L.Rev. 629,
643; Note, 73 Harv.L.Rev. 1358, 1368, n. 68; Stern, Conflict of
Laws, 12 U.Miami L.Rev. 383, 397 (1958); Kurland, Toward A
Cooperative Judicial Federalism, 24 F.R.D. 481, 489.
Cf.
Fla.App. Rule 4.6, 31 Fla.Stat.Ann., 1959 Cum.Pocket Part.
[
Footnote 2/24]
The statutory authorization giving the State Supreme Court the
power to entertain certified questions, first enacted in 1945,
Fla.Laws 1945, c. 23098, § 1, was "perfected" in 1957, Fla.Laws
1957, c. 57-274, § 1.
See Stern, Conflict of Laws, 12
U.Miami L.Rev. 383, 395 (1958).
MR. JUSTICE DOUGLAS, dissenting.
While I join the dissent of my Brother BLACK, I desire to give
renewed protest to our practice of making litigants travel a long,
expensive road in order to obtain justice. Congress has created
federal courts with power to adjudicate controversies between
citizens of different States. They are manned by judges drawn from
the local Bars
Page 363 U. S. 228
and fairly conversant with the laws of their respective areas.
They are equipped to decide questions of local law as well as
federal questions. As we stated in
Meredith v. Winter
Haven, 320 U. S. 228,
320 U. S.
236:
"Congress having adopted the policy of opening the federal
courts to suitors in all diversity cases involving the
jurisdictional amount, we can discern in its action no recognition
of a policy which would exclude cases from the jurisdiction merely
because they involve state law or because the law is uncertain or
difficult to determine."
The situations where a federal court might await decision in a
state court or even remand the parties to it should be the
exception not the rule. Only prejudice against diversity
jurisdiction can explain the avoidance of the simple constitutional
question that is presented here and the remittance of the parties
to state courts to begin the litigation anew. Some litigants have
long purses. Many, however, can hardly afford one lawsuit, let
alone two. Shuttling the parties between state and federal
tribunals is a sure way of defeating the ends of justice. The
pursuit of justice is not an academic exercise. There are no
foundations to finance the resolution of nice state law questions
involved in federal court litigation. The parties are entitled --
absent unique and rare situations -- to adjudication of their
rights in the tribunals which Congress has empowered to act.