FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUG 11, 2011

JOHN LEY

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-15690

________________________

D. C. Docket No. 08-00377-CV-ORL-22-GJK

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY,

PlaintiffCounter-DefendantAppellee,

versus

ANNA N. DUCKWORTH,

Personal Representative of the

Estate of Aquila E. Duckworth,

DefendantCounter-ClaimantAppellant.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(August 11, 2011)
Before TJOFLAT, CARNES and HILL, Circuit Judges.

TJOFLAT, Circuit Judge:

This appeal sits at the intersection of our summary judgment jurisprudence

and Florida’s choice of law rules. The defendant, Anna N. Duckworth (“Anna”)

and her husband, Aquila E. Duckworth (“Aquila”), purchased two automobile

insurance policies and one motorcycle insurance policy from the plaintiff, State

Farm Mutual Automobile Insurance Company (“State Farm”), while they were

Maryland residents. All three insurance contracts contained “anti-stacking”

provisions that precluded the Duckworths from recovering uninsured motorist

benefits under any policy other than that covering the damaged vehicle. Maryland

law explicitly permits the use of such anti-stacking provisions in insurance policies

without the informed consent of an insured.

The Duckworths subsequently moved to Florida, where Aquila was struck

and killed by an uninsured motorist while driving the motorcycle covered under

the Maryland policy. State Farm immediately paid Anna, as representative of

Aquila’s estate, the uninsured motorist benefits called for by that policy, $100,000,

but, citing the anti-stacking provisions, later denied Anna’s claim for benefits

under the two automobile policies. State Farm then brought this action in the

district court, seeking a declaratory judgment that it had satisfied its contractual

2
obligations to Aquila’s estate. Anna answered State Farm’s complaint, asserted

1

affirmative defenses, and counterclaimed for breach of contract. She alleged that

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the policies should be construed under Florida, and not Maryland, law. Because

Florida law prohibits the use of anti-stacking provisions absent the insured’s

informed consent, and because neither Anna nor Aquila had given their informed

consent, Anna argued that Aquila’s estate should be entitled to recover uninsured

motorist damages on all three policies.

At issue before the district court was the applicability of the public policy

exception to Florida’s choice of law rule in disputes over contract terms. Since

Florida follows the rule of lex loci contractus—that is, Florida courts apply the law

of the jurisdiction in which the contract was entered into—the parties conceded

that, absent the exception, Maryland law would control and State Farm would be

entitled to declaratory relief. See State Farm Mut. Auto. Ins. Co. v. Roach, 945 So.

2d 1160, 1163 (Fla. 2006) (explaining that an insurance contract is entered into in

the state in which the contract was issued and delivered).

The public policy exception demands that Florida law control whenever the

State has (1) a paramount public policy interest in the application of its own law

 The district court had jurisdiction under 28 U.S.C. § 1332. 1

 Anna asserted various other counterclaims not at issue here, including one for contract

2

reformation and another for breach of fiduciary duty. 

3
and (2) a citizen in need of protection. Id. at 1164–65. Whenever an insurance

3

contract is at issue, it is also necessary that the insured party seeking to benefit

from the exception satisfy a third prong: the insured must provide the insurer with

reasonable notice “of a permanent change of residence,” id., such that the insurance

risk would thereafter be “centered in Florida,” Gillen v. United Servs. Auto.

Assoc., 300 So. 2d 3, 7 (Fla. 1974). The third prong’s reasonable notice

requirement is meant to “inform[] the insurer of which state’s law will govern the

policy” and turns on the clarity with which an insured expressed his intent to make

Florida his permanent home. Roach, 945 So. 2d at 1165. Because “the public

policy exception is intended to be narrow,” it displaces Florida’s lex loci rule only

when all three prongs of the exception, including the reasonable notice

requirement, have been satisfied. Id. at 1167.

Following discovery, State Farm and Anna filed cross-motions for summary

judgment on State Farm’s request for declaratory relief under Federal Rule of Civil

Procedure 56, and State Farm sought summary judgment on Anna’s counterclaims.

The district court granted summary judgment to State Farm on all claims. In

 In this opinion, we refer generally to the “public policy exception” or the “exception” 3

as well as to the exception’s individual prongs. The exception’s third prong requires what we

refer to as “reasonable notice,” where “reasonable notice” is notice by the insured to the insurer

that the insured is permanently residing in Florida and subject to the protection of Florida law. 

See State Farm Mut. Auto. Ins. Co. v. Roach, 945 So. 2d 1160, 1164–65 (Fla. 2006)

4
addressing State Farm’s motion for declaratory relief, the court found for State

Farm on each of the three prongs of the public policy exception, holding that (1) no

paramount public policy required the application of Florida law, (2) the

Duckworths had yet to establish themselves as Florida citizens, and (3) State Farm

was not given reasonable notice that Florida law would govern the Duckworths’

policies. The court then declared that State Farm had satisfied its contractual

obligations to Aquila’s estate and dismissed Anna’s counterclaims.

Anna now appeals. She claims that issues of material fact remain that

4

preclude summary judgment on each of the exception’s three prongs. Of particular

importance to this appeal, Anna argues that it is disputed whether she informed a

State Farm representative that her and Aquila’s move to Florida was “permanent.”

She suggests this is a material question of fact that must be resolved before any

judgment may issue.

We disagree and affirm. Taking into account all of the undisputed facts, and

assuming that Anna informed a State Farm representative that the Duckworths’

move would be “permanent,” State Farm still did not receive reasonable notice

sufficient to trigger the public policy exception. In fine, even if Anna informed the

representative as alleged, her later actions overwhelmingly indicated to State Farm

 We have jurisdiction pursuant to 28 U.S.C. § 1291. 4

5
that the Duckworths’ move to Florida was not necessarily permanent and that,

consequently, Maryland law would continue to govern the Duckworths’ policies.

The issue of fact upon which her appeal rests is therefore immaterial and, as State

Farm was deprived of reasonable notice, judgment as a matter of law was proper.

I.

The undisputed record evidence establishes the following facts. In 1989,

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Anna moved to Edgewater, Florida, with her mother, her two daughters, Nikki and

Falon, and her youngest sister. There, in 1996, Anna met Aquila. They married in

October 1998, while Aquila was in Navy training in Illinois. At that time, they both

had Florida drivers’ licenses and were registered to vote in Florida.

In December 1998, the Duckworths left Edgewater for San Diego, California,

where Aquila was to be stationed. At that time, they owned one vehicle, Aquila’s

1971 Cadillac Deville. Anna rented a San Diego apartment for her, Aquila, and her

two daughters beginning in January 1999. By July of that year, they had insured the

Cadillac with a local State Farm agent, Jack Dale, and added a second autmobile

policy for a newly-purchased Ford Probe. As Anna understood them, these “full

 In reviewing a summary judgment, we consider the evidence in the light most 5

favorable to the non-movant. Centurion Air Cargo, Inv. v. United Parcel Serv. Co., 420 F.3d

1146, 1149 (11th Cir. 2005). Thus, in stating the facts, we afford Anna, the non-movant, all

credibility choices and the benefit of all reasonable inferences the facts yield. Latimer v.

Roaring Toyz,Inc. 601 F.3d 1224, 1237 (11th Cir. 2010).

6
coverage” policies were consistent with the California insurance “requirements”

Dale described to her. In 2001, after purchasing a Yamaha V-Star Classic

motorcycle, the Duckworths purchased a third (motorcycle) policy as well as a

renters’ insurance policy from Dale’s State Farm agency. All of the Duckworths’

policies were paid by automatic draft from their joint checking account at the North

Island Federal Credit Union in San Diego.

While in San Diego, Anna and Aquila received mail from the Florida

Department of Highway Safety and Motor Vehicles notifying them that they needed

to renew their Florida drivers’ licenses. Anna completed the required forms over

the Internet, and she and Aquila received their renewed licenses shortly thereafter.

Though issued by the Florida agency, the renewed licenses listed the Duckworths’

San Diego address as their place of residence. All three vehicles—the Cadillac, the

Ford, and the Yamaha motorcycle—were registered in California and had

California tags.

In 2003, Aquila requested a transfer from his post in California. He was

thereafter assigned to the National Naval Medical Center in Bethesda, Maryland, as

a military police officer. Before the Duckworths left for Maryland, Anna notified

Dale of their impending move and cancelled their renters’ insurance policy. At that

time, Dale informed Anna that, once settled, she should get in touch with a State

7
Farm agent in Maryland, and he offered to find an agent for her if she needed one.

The Duckworths left San Diego in March 2003. They took with them the

Probe and the motorcycle; the Cadillac was left behind and presumably sold. In

April, Anna and Aquila moved into a Germantown, Maryland, apartment with

Falon; Nikki, had moved from California to Florida. Anna got herself, Aquila, and

Falon settled, but never asked Dale to find her a Maryland State Farm agent.

Instead, within “a month or two,” Anna found the phone number for the Connie

Davis State Farm agency in a phone book advertisement and called to request a

renters’ insurance quote. While on the phone with a Davis agency representative,

Anna also obtained an automobile and motorcycle insurance quote. She then went

to the agency’s office and applied for insurance on the Probe and the motorcycle.

She did not purchase renters’ insurance at that time. While at the agency office,

Anna submitted her and Aquila’s (Florida) drivers’ licenses to be copied and also

provided the agency representative with VINs for the Probe and the motorcycle.

The Connie Davis agency issued policies for both vehicles that fully complied with

Maryland insurance requirements.

The Duckworths paid the same amount for their Maryland policies as they

had for their California policies, and they received approximately the same “full

coverage” as in California. State Farm billed the Duckworths for their Maryland

8
policies on the 15th of every month. Once again, payment was automatically

debited from Anna’s and Aquila’s joint checking account at the North Island Credit

Union in California.

On January 6, 2004, State Farm sent notice to Aquila, the principal insured

on all of the Duckworths’ policies, that under Maryland law he—and any family

member who might operate an insured vehicle—must immediately obtain a

Maryland drivers’ license and discard the Florida license then on file with State

Farm. The notice gave Aquila sixty days to provide State Farm with a new drivers’

license number demonstrating that he had complied with the notice. Aquila ignored

the notice and did not share it with Anna. Consequently, neither obtained a

Maryland license. Nor did they ever register to vote in Maryland.

Anna’s principal contact at Connie Davis’ State Farm agency was Francesca

“Frankie” Whiting. As the Duckworths’ State Farm agent, Whiting handled Anna’s

subsequent application for and the issuance of a renters’ insurance policy with State

Farm. She also assisted Anna when, in 2005, the Duckworths acquired a 1998

Chevrolet Cavalier and insured it with the Connie Davis agency. At Anna’s

request, Whiting even met with Falon when Falon purchased a vehicle and insured

it, a Pontiac Trans Am, with State Farm.

9
In December 2004, Falon married and moved to Utah. Anna told Falon to

6

contact Whiting when she got to Utah to let State Farm know about her permanent

change in residence. Falon and her husband eventually obtained Utah insurance

through another carrier.

Aquila’s Navy enlistment was set to expire in May 2006, and he and Anna

decided that he would not reenlist. The Duckworths instead planned to move to

Florida, where Nikki lived. Once in Florida, Aquila would apply for a job with the

U.S. Marshals or the Fish and Wildlife Service while Anna found temporary

employment. Once Aquila found a job, he and Anna would move again, this time

to a place nearer his duty station, and Anna would then find permanent

employment.

Aquila’s enlistment expired on schedule in May. Anna then phoned the

Connie Davis agency and informed Whiting that she and Aquila would be moving

to Florida and would no longer need a Maryland renters’ insurance policy. At that

time, Anna gave Whiting Nikki’s Florida address (125 West Loop, Oak Hill, FL

32759) and told Whiting that she and Aquila would be staying there only

temporarily. Whiting understood from her conversation with Anna that State Farm

7

 By this time, Falon had sold the Trans Am and purchased a Mercury Cougar. The 6

Cougar was also insured by State Farm through the Connie Davis agency. 

 It was during this conversation between Anna and Whiting that Anna allegedly stated 7

that her move to Florida would be permanent. During Anna’s deposition, counsel for State Farm

10
should, until further notice, send all future correspondence relating to the remaining

automobile and motorcycle policies to that address. Anna later personally visited

the agency office and drafted, on State Farm letterhead, a hand-written note

canceling the Duckworths’ Maryland renters’ insurance policy.

The Duckworths moved in with Nikki, leaving the majority of their

belongings at a storage facility near Nikki’s home. In June 2006, Anna requested

insurance quotes for the Probe, Cavalier, and motorcycle from her mother’s

insurance agent, Debbie Banks, at the Charlie Cobb State Farm agency in

Edgewater. The quotes Banks provided were, according to Anna, “exorbitantly

high,” about $100 a month more than what the Duckworths had paid for their

Maryland policies. Accordingly, though Banks informed Anna that the Duckworths

should “find a[] [Florida] agent,” Anna declined to purchase any Florida insurance

asked Anna how she had described her move to Florida. Anna responded that she had told

Whiting that she and Aquila would be living “[t]emporarily with my daughter[, but p]ermanently

in the State of Florida.” Whiting later testified that she did not remember Anna making that

statement, but that, if Anna had said something to that effect, it would have been her practice to

instruct Anna to immediately obtain Florida coverage. 

A disputed issue of fact will preclude summary judgment if it is material to a legal claim. 

A fact issue is material if it has the potential to alter the disposition of that claim. In this case,

the disputed issue would be material if a fact-finder, having found that Anna did indicate that her

and Aquila’s move to Florida would be permanent, would be justified in deciding this case in

favor of applying the public policy exception. If, however, we assume that Anna made the

disputed statement and nevertheless conclude that State Farm still had valid reason to doubt that

the Duckworths intended to permanently reside in Florida, the dispute is immaterial and

judgment as a matter of law proper. As indicated supra and explained infra, we conclude that

this latter scenario is the case. Consequently, it is unnecessary to decide this disputed issue of

fact to resolve this appeal. 

11
at that time. Anna explained that, had she intended to settle in Edgewater, she

would have shopped around for more competitive rates. But, as she was not

8

certain where she and Aquila would ultimately live, Anna did not seek quotes from

a State Farm competitor until December 2006, when, after reading a GEICO

advertisement, she obtained an online quote from that company, but again decided

against purchasing any Florida insurance because of its cost.

Instead, Anna maintained her existing Maryland policies, which were still

being paid by an automatic debit from the Duckworths’ California checking

account. In July 2006, for instance, Anna called Whiting to inform her that the

motorcycle’s California registration had expired, that Aquila had registered the

motorcycle in Florida, and that the motorcycle had a new Florida license plate. In

response to Anna’s call, Whiting sent Anna new proof-of-insurance cards that

included the updated information.

In November 2006, Anna again called Whiting, this time to inform Whiting

 Anna’s conversation with Banks gave rise to another disputed issue of fact. Anna 8

claims that she informed Banks that she and Aquila would not know where in Florida they would

permanently settle until Aquila found a permanent job and that Banks, in turn, advised her to

wait before obtaining Florida insurance because auto insurance rates in Volusia County—home

to Edgewater—were higher than in other Florida counties. Banks testified that she made no such

statement and that, regardless, auto coverage in Volusia County was not more expensive than

elsewhere in Florida. Again, because we must determine whether this dispute issue is material,

we presume that Banks did tell Anna to wait before obtaining Florida insurance. And again,

because we conclude that, regardless of what was said by Banks, Anna nonetheless failed to

clearly express to State Farm that she and Aquila never would live outside of Florida, we find no

disputed issue of material fact that would preclude summary judgment. 

12
that the Probe was no longer being driven and to request that Whiting change the

Probe’s “status” from “full coverage” to “nondriving.” Anna hoped the change in

status would reduce the insurance premium she and Aquila owed on the car. Also,

during that conversation, Whiting asked the status of Aquila’s job search, and Anna

told her that Aquila was “still putting in applications all over Florida.” Then, on

November 9, 2006, Anna faxed Whiting a typed confirmation of the request that

listed Nikki’s address as their place of residence.

9

Also on November 9, Whiting updated the Duckworths’ mailing address to

show that they were temporarily staying at Nikki’s house. Nikki’s address

thereafter appeared in the State Farm computer system as the Duckworths’ mailing

address, but not their permanent home address.

On December 15, 2006, after having processed the Duckworths’ mailing

address change, State Farm’s “Move Center” sent Aquila a letter containing the

address and phone number of a nearby State Farm agent in Edgewater, Buddy

Davenport. The letter instructed Aquila to contact Davenport and provided him

with a list of the Duckworths’ existing insurance policies. The letter informed

Aquila that he should let Davenport know “if there are any other policies that also

 Anna explained that Aquila had asked her to change the Probe’s status, that she was not 9

certain why Aquila requested that she do so, and that their financial situation at the time was

“close,” but not dire. 

13
need to be transferred,” and it reminded him that “[t]here may be some additional

limitations on the availability of property and casualty insurance in your new

location” that might “affect the transfer of your policies.” The letter concluded with

the following caveat: “If your new address is temporary or a change of your

‘mailing address,’ please contact [the Move Center] or your current agent. In these

situations, your current agent may continue to serve your insurance needs.” Aquila

never responded to the letter, and Anna never saw it. Neither Aquila nor Anna

contacted Davenport. The Duckworths instead renewed their Maryland policies

with the Connie Davis State Farm agency.

Meanwhile, Aquila had applied with several potential employers, both inside

and outside of Florida, but had requested that he only be considered for positions

within Florida. Aquila, however, had received no offers. To ensure an income

10

while continuing his job search, Aquila joined the Navy Reserves. Aquila also

11

obtained part-time employment at G.I. Jeffs, an Army/Navy surplus store in

Edgewater and volunteered regularly at the local American Legion post. Also,

 According to Anna, despite his difficulties in finding permanent employment, Aquila 10

would have steadfastly refused to accept any employment opportunity outside Florida, even if

that opportunity entailed working just over the Florida/Georgia border at the Kings Bay Naval

Station (adjacent to St. Marys, Georgia). Neither Aquila nor Anna, however, communicated that

fact to State Farm. 

 Aquila joined the Navy Reserves in October 2006 and remained in the Reserves until 11

his death. He took part in Reserve activity one weekend a month under a Reserve command in

Orlando. 

14
Aquila eventually acquired a handgun and obtained a Florida license to carry it,

listing Nikki’s address as his place of residence on his application for the license.

Nevertheless, as Aquila saw his employment as temporary, he and Anna never

decided where they were going to settle permanently, and they took no steps toward

obtaining their own home.

On March 26, 2007, while riding his motorcycle, Aquila was in an accident

with an uninsured motorist and died from his injuries. Anna called Whiting and

notified her of the accident and Aquila’s death. Whiting subsequently informed the

State Farm claims department, which handled the matter from that point forward.

State Farm paid Anna the uninsured motorist benefits called for by the

Maryland motorcycle policy, but denied payment on her claim under the two

automobile policies. State Farm, however, failed to cancel the motorcycle policy.

And because State Farm’s records listed the policy as active, State Farm mistakenly

sent Anna notice on May 18, 2007, that it intended to renew the motorcycle policy.

The notice upset Anna, who called Whiting to cancel all of her existing policies

with State Farm and later faxed Whiting a handwritten letter confirming her desire

to cancel the motorcycle policy, effective March 27, 2007 (the day after Aquila was

killed), and the Probe and Cavalier policies, effective May 18, 2007 (the day Anna

received the renewal notice). After she canceled her State Farm coverage, Anna

15
immediately obtained Florida insurance policies for the Probe and Cavalier. She

later filed this action on behalf of Aquila’s estate in the district court.

II.

In this case, since we are exercising our diversity jurisdiction, we look for a

Supreme Court of Florida decision based on facts essentially indistinguishable from

the facts at hand to inform our decision. CSX Transp., Inc. v. Trism Specialized

Carriers, Inc., 182 F.3d 788, 790 (11th Cir. 1999). Where, as here, we find no

Supreme Court decision directly on point, we must anticipate how the Supreme

Court would decide this case. Id. In doing so, we consider, in addition to Supreme

Court precedent, decisions of the State’s intermediate appellate courts that appear to

be on point, provided that there is no indication that the Supreme Court would reject

them. Bravo v. United States, 577 F.3d 1324, 1325–26 (11th Cir. 2009) (per

curiam) (explaining that, after Erie R.R. Co. v. Thompkins, 304 U.S. 64, 58 S. Ct.

817, 82 L. Ed. 1188 (1938), and its progeny, federal courts sitting in diversity

follow intermediate state court decisions so long as there is no indication that the

state high court would not agree). This process is not exact; often we must draw

our decision from comparisons to analogous cases. Id. Accordingly, before we

reach a decision on the public policy exception, we will first review the field of

relevant precedents that guide our analysis.

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A.

The Supreme Court of Florida has decided three cases that address the

exception to the lex loci contractus rule and inform our judgment. The most recent

of those is State Farm Mutual Automobile Insurance Co. v. Roach, 945 So. 2d 1160

(Fla. 2006), where the court held that Indiana residents who lived in Florida for five

and one-half months every year were not entitled to application of the public policy

exception because they had not shown an intent to become permanent Florida

residents. Id. at 1163, 1168. Although the Roach decision turned on the second

prong of the public policy exception—that is, the court held that the Indiana

residents were not permanent Florida citizens in need of protection—the court also

engaged in a discussion of Florida precedent applying the exception’s reasonable

notice prong. Id. at 1165–68. In sum, the court emphasized that it is imperative

that the insurer know that the insureds are permanent residents of Florida before the

“narrow” public policy exception will apply. Id. at 1168–69 (explaining that, in

virtually every case in which the exception had been applied, “the insureds were

permanent residents of Florida, and the insurer knew it”).

As the Roach court explained, if it did not insist that an insured provide an

insurer with sufficient notice of a permanent change in the insured’s residence,

Florida courts would find themselves in the business of “rewrit[ing] . . . out-of-state

17
contracts” such that an insured could unilaterally alter his bargain with his insurer

by temporarily moving to Florida. Id. at 1169. Indeed, a contrary rule, the court

warned, would “destroy the stability in contractual arrangements that the lex loci

rule is designed to ensure.” Id. The Roach court thus found the exception

unavailing and applied New Hampshire law even though the plaintiffs called

Florida home for a significant portion of every year. Id.

The facts as well as the result were essentially identical in the case upon

which Roach most heavily leaned, Sturiano v. Brooks, 523 So. 2d 1126 (Fla. 1988).

Sturiano also considered whether an insurer had reasonable notice that Florida law

should apply to policies held by certain “snowbirds” who seasonally, but invariably,

resided in Florida. Id. at 1128–30. As in Roach, the Sturiano court ultimately held

that foreign law should control after applying the lex loci contractus rule, again

emphasizing that “[t]o allow one party to modify the contract simply by moving to

another state would substantially restrict the power to enter into valid, binding, and

stable contracts.” Id. at 1130. The parties to the insurance contract “bargained and

paid for . . . New York law to apply,” the court explained, and Florida courts would

not absolve them of the burdens of that bargain. Id. (emphasis added).

By way of contrast to Roach and Sturiano, the Supreme Court of Florida

decided in favor of applying the exception in Gillen v. United Services Automobile

18
Ass’n, 300 So. 2d 3 (Fla. 1974). There, the Gillens obtained two auto insurance

12

policies from United Services Automobile Association (“USAA”) while residents

of New Hampshire. Id. at 4. Those policies were numbered “28” and “29.” Id. at

4–5. The Gillens subsequently moved to Florida and informed USAA of their

move. Id. at 5. While living in Florida, the Gillens sold one of their vehicles and

cancelled the New Hampshire automobile policy covering that vehicle, policy

number “28.” Id. They then purchased a new vehicle and purchased a third policy,

numbered “31,” to cover that vehicle. Id. While driving the new vehicle, the

Gillens were in an accident caused by an uninsured motorist. Id. The Gillens then

claimed uninsured motorist benefits under both policies, “29” and “31”. Id. USAA

paid benefits under policy “31,” but refused to do so under policy “29,” relying on

an “other insurance” clause found in policy “29” that permitted USAA to refuse

payment of benefits whenever the claimed damage was covered by some other

insurance policy owned by the insured. Id.

The Gillens sued, seeking a declaratory judgment that the other insurance

 We do not consider a fourth Supreme Court of Florida decision, Strochak v. Federal

12

Insurance Co., which was cited in Roach, and in which the court refused to apply the public

policy exception because it found that the implicated policy had been issued and delivered while

the insured was a Florida resident. 717 So. 2d 453, 455 (Fla. 1998). That case, discussed at

some length by both parties, is distinguishable from the present one insofar as it applies the lex

loci contractus rule directly; since the contract was entered into in Florida, Florida’s general

choice of law rule demanded the court apply Florida law without ever considering the exception. 

See id. 

19
clause found in policy “29,” while valid under New Hampshire law, was rendered

invalid because Florida law, which “eliminat[es]” other insurance clauses, applied

by virtue of the public policy exception. Id. at 5–6. The Supreme Court of Florida

found that all three prongs of the public policy exception had been met, applied

Florida law, and invalidated the other insurance clause found in policy “29.” Id. at

6–7. Again, the court emphasized how important it is, in the insurance contract

context, that an insured notify the insurer of a permanent change in residence with

sufficient clarity so that the insurer could know that Florida law would thereafter

govern the insured’s policies. Id.

The Gillen court went further, however, and actually identified the facts that

gave USAA reasonable notice that Florida law would control. First and most

prominently, the court explained, the Gillens had purchased an insurance policy,

policy number “31,” after notifying USAA that they were residing in Florida.

Gillen, 300 So. 2d at 6. That act, the court said, put USAA on notice that the

Gillens intended to make Florida their permanent home. Id. And USAA’s issuance

of policy “31” “c[ould] be seen as an acknowledgment of domiciliary change.” Id.

Moreover, the Gillen court felt it would inequitable to permit USAA to collected

Florida premiums on policy “31” and then deny the Gillens the benefit of Florida

law on policy “29,” stating that “[t]here is nothing in law or equity which should aid

20
an insurance company in so one-sided an arrangement.” See id. (explaining that the

public policy exception would apply to stop USAA from collecting premiums on

both policies, but paying under only one).

Second, the court noted that it was likely that USAA knew of certain steps

the Gillens had taken to establish themselves as permanent Florida residents. Aside

from purchasing a family home in Florida, the Gillens had also “purchased

automobile tags, [obtained] drivers’ licenses, mortgaged their home in Florida and

entered their children in local schools.” Id. Accordingly, since USAA had

acknowledged that the Gillens were permanent Florida residents subject to the

protection of Florida law, USAA could not justifiably rely on a contract provision

that Florida law deemed invalid.

B.

Apart from the three Supreme Court of Florida decisions, two cases from

Florida’s intermediate appellate courts also bear upon our decision. In the first of

the two, New Jersey Manufacturers Insurance Co. v. Woodward, 456 So. 2d 552

(Fla. 3d Dist. Ct. App. 1984) (per curiam), a district court of appeal refused to apply

the public policy exception where the insureds, both New Jersey residents, had

purchased New Jersey policies, moved to Florida, and only provided their insurer

with a “post office change-of-address form indicating that they had changed their

21
mailing address to a location in Florida.” Id. at 553. The Woodward court

reasoned that the insurer had no reason to know that, on those facts, the insurance

risk had permanently shifted to Florida. Id. at 553–54 (“There was no indication . .

. that the insureds had changed their permanent residence to Florida or that the

covered motor vehicles under the subject policy would now be principally garaged

in Florida.”). And without clear notice of a permanent move, the insurer had no

notice that Florida law would usurp New Jersey law and govern the court’s

interpretation of the insureds’ policies. Id.

In the second of the two cases, State Farm Mutual Automobile Insurance Co.

v. Davella, 450 So. 2d 1202 (Fla. 3d Dist Ct. App. 1984) (per curiam), the same

district court of appeal confronted a case in which a Colorado resident informed her

insurer, State Farm, that her husband had been transferred to Florida for work, and

that she and her husband would be moving to Florida temporarily. 450 So. 2d at

1205 (Pearson, J., dissenting). “The Davellas were hoping to stay in Florida, and

13

thus renewed their drivers’ licenses in Florida and registered [the insured vehicle] in

Florida. However, they encountered problems securing [permanent] housing and a

mortgage in Florida, and acknowledged the possibility that they might have to move

 We refer to the dissenting opinion only for its presentation of the facts, which is far

13

more comprehensive than the majority’s. Compare State Farm Mut. Auto. Ins. Co. v. Davella,

450 So. 2d 1202, 1205–07 (Fla. 3d Dist Ct. App. 1984) (per curiam) (Pearson, J., dissenting),

with id. at 1203–05. 

22
back to Colorado.” Id.

While living in their temporary housing, see id. at 1205 n.2, the Davellas

received notice from State Farm that their two existing insurance policies had been

transferred to Florida and a bill for the increased premiums due, id. at 1205–06.

Mrs. Davella then visited the nearest State Farm agent and informed him that,

because the possibility existed that the Davellas would be returning to Colorado,

and because three months remained on the existing Colorado policies, she and her

husband did not want to transfer those policies to Florida. Id. They would instead

allow their policies to be transferred if, once the policies expired, she and her

husband were still living in Florida. Id.

After some confusion over which office would service the Davellas’ account,

the Davellas eventually renewed their Colorado policies. As the date upon which

the Colorado policies would expire neared, Mrs. Davella first approached a Florida

State Farm agent to purchase Florida policies. The Florida agent, however, failed to

send her the policies. Accordingly, because she had not received the requested

Florida policies, Mrs. Davella renewed her Colorado policies by writing directly to

her Colorado agent and asking for him to “send a renewal.” Id. at 1206. She also

paid her premium directly to the Colorado State Farm agency (under the false

impression that the agency was actually State Farm’s headquarters). Id.

23
The Davellas subsequently were involved in an accident. Id. at 1203. They

sued for declaratory judgment holding that they were entitled to the minimum

policy limits mandated by Florida law ($100,000) instead of those contained in the

insurance contracts ($15,000). Id. The trial court found for the Davellas, but the

district court of appeal reversed, holding that, since Mrs. Davella choose to reject a

Florida policy when it was first offered to her and renew her Colorado policies, the

Davellas had not given State Farm reasonable notice that Florida law would govern

their insurance contracts. Id. at 1204.

III.

Extrapolating from the principles found in the foregoing decisions, we do not

believe that the Supreme Court of Florida would choose to invoke the public policy

exception on the undisputed facts related in part I, supra. Instead, we believe that

the Supreme Court would more likely hold that, because State Farm’s picture of

where the Duckworths’ intended to permanently reside was clouded by information

provided to State Farm agents by the Duckworths or otherwise discovered by State

Farm, State Farm did not have reasonable notice that Florida law would govern the

Duckworths’ policies.

The facts related above establish the following:

(1) Anna understood that she and Aquila needed to purchase California

insurance within a few months of moving to California and Maryland

24
insurance within a few months of moving to Maryland;

(2) While the Duckworths resided in California and Maryland, they

nevertheless maintained close ties to Florida and possessed Florida drivers’

licenses that listed a California address even though they had no intention to

returning to Florida;

(3) The Duckworths decided to move to Florida and informed Whiting

that they would temporarily be staying at Nikki’s house in Edgewater,

Florida;

(4) Anna cancelled the Duckworths’ renters’ insurance policy and did not

purchase a new renters’ insurance or homeowners’ policy from State Farm

once she and Aquila arrived in Florida;

(5) While temporarily staying at Nikki’s house, the Duckworths maintained

their California bank account and contacted Whiting in Maryland about their

policies;

(6) Anna explained to Whiting and Banks that she and Aquila intended

to live somewhere in Florida, but that they would not know where they

would permanently settle until Aquila found a job;

(7) Anna twice had the opportunity to purchase insurance coverage while in

Florida, but refused to do so because she was uncertain where she and Aquila

were going to permanently settle and because the price of Florida insurance

was prohibitively expensive since Aquila had yet to find a job;

(8) Anna told Whiting that, after six months of looking, Aquila had still not

found a job, or, much less, a job prospect, as he was “still putting in

applications all over Florida;”

14

(9) After residing in Florida for four months, the Maryland registration on the

Duckworths’ motorcycle expired, so the Duckworths registered the

motorcycle in Florida and obtained Florida tags for the motorcylce, but they

did not register their other vehicles in Florida or obtain Florida tags for those

vehicles;

(10) The Duckworths later decided to change the Probe’s status from

 There is evidence that, had Aquila lived, he would have received a job offer, and that 14

the job offer would have come from a Florida-based company. We do not mention it in the

facts, and only briefly mention it here, because neither Aquila, nor Anna, knew that the offer was

imminent, and thus could not have intended to permanently move nearer the opportunity. 

Moreover, we cannot be sure that Aquila would have accepted the offer. And since the

Duckworths did not know of the offer prior to Aquila’s death, Whiting and State Farm certainly

cannot be charged with knowing that Aquila actually had an offer that would keep the

Duckworths permanently in Florida. 

25
“full coverage” to “nondriving”; and

(11) Neither Anna nor Aquila took any action in response to the State

Farm Move Center letter informing them that they needed to transfer

their policies to a Florida agent if they intended to remain in Florida

permanently, but instead renewed their policies with Whiting’s agency.

A reasonable observer in State Farm’s position who knew of the foregoing

facts would have good cause to question whether the Duckworths intended to

permanently reside in Florida and whether, even if the Duckworths intended to

permanently move to Florida, it was actually feasible for them to do so. State Farm

had knowledge of, or could have inferred, most, if not all, of the foregoing facts and

therefore had good cause to question whether the Duckworths’ move to Florida

was, or would be, permanent. As such, because the Duckworths’ did not clearly

express to State Farm that their move to Florida was permanent, State Farm did not

have the reasonable notice required by the public policy exception.

Principally, in regard to the initial question of the Duckworths’ intent, State

Farm had knowledge of facts that would have indicated to a reasonable observer

like State Farm that, even had Anna told Whiting the move to Florida was

“permanent,” it was still possible that the Duckworths would decide to permanently

reside elsewhere. First, the only Florida address given to State Farm by the

Duckworths was for Nikki’s home, a home that Anna had specifically told Whiting

would serve as her and Aquila’s temporary, not permanent, residence. Thus, State

26
Farm had no information from which it could infer that the Duckworths had

conclusively decided that their new home would be in Florida. Second, and

similarly, the Duckworths had not yet purchased or rented a Florida home or

purchased a homeowners’ or renters’ insurance policy from State Farm. Neither

had they notified Florida’s motor vehicles department of a change in their

permanent address, as their drivers’ licenses, which were on file with State Farm,

still listed their prior California address. Both facts would have led a reasonable

observer like State Farm to question whether the Duckworths were indeed certain

that they would not ultimately reside elsewhere.

And third, though the Duckworths had registered the motorcycle in Florida

and purchased a Florida license plate for that vehicle, State Farm knew, based on

Anna’s comments to Whiting, that they had only done so because (1) the

motorcycle’s Maryland registration had expired and (2) the Duckworths did not

intend to return to Maryland. Thus, judging by the Duckworths’ timing, as well as

their decision not to register their other two vehicles in Florida, State Farm could

have logically viewed that act as one of convenience rather than a declaration of

their intent to become permanent Florida citizens.

15

 That conclusion jibes with the thrust of Fla. Stat. § 320.38, which requires that any 15

individual who accepts employment in Florida register his vehicles with the State motor vehicles

department within ten days of beginning work. Because the Duckworths did not register their

motor vehicles with Florida in accordance with § 320.38, a reasonable observer might have

27
Moreover, and more importantly, the Duckworths had rejected an

opportunity to purchase Florida coverage when it was offered to them by Banks and

instead chose to renew their Maryland policies with Whiting. When viewed in

conjunction with Anna’s earlier proclivity to obtain local coverage from State Farm

within months after arriving at a new home—not to mention her instructions to

Falon to notify a State Farm agent as soon as Falon relocated to Utah—State Farm

easily could have construed the Duckworths’ decision to forego Florida coverage as

evidence that the Duckworths did not view their move to Florida as permanent. At

minimum, the fact that the Duckworths did not continue to seek insurance rate

quotes after Banks told Anna to “get a[] [Florida] agent” or contact a State Farm

representative after receiving the Move Center letter would have led a reasonable

observer to doubt the Duckworths’ resolve to permanently remain in Florida.

In other words, then, despite living at Nikki’s for approximately nine months,

the Duckworths had done nothing to give State Farm the clear impression that they

had made permanent living arrangements in Florida. Whatever the Duckworths’

subjective desires might have been, State Farm had every reason to view the

Duckworths as a family in transit, capable of pulling up stakes and moving to

another state at any point.

concluded that they did not intend to stay in Florida. 

28
Next, turning to the issue of whether a permanent move to Florida was even

feasible, State Farm had every reason to question whether the Duckworths had the

means to make Florida their permanent home. After all, based on the Duckworths’

decisions to refuse Florida coverage based on the increased premiums and to change

the Probe’s status to “nondriving” in order to save money on premium, State Farm

must have inferred that the Duckworths’ financials were, as Anna called them,

“close.” It is not difficult to infer from that point that the Duckworths were

dependent upon Aquila to find a job that paid enough to support them; if Aquila

could not find such a job in Florida, State Farm must have realized, the Duckworths

would certainly have to look elsewhere. And, after learning from Anna that

Aquila’s job search was not going well, State Farm had to believe that there was, at

minimum, a reasonable chance that the Duckworths would end up elsewhere.

In that sense, and viewing all of the foregoing facts in concert, this appeal

most closely resembles State Farm Mutual Automobile Insurance Co. v. Davella,

450 So. 2d 1202 (Fla. 3d Dist Ct. App. 1984), where the public policy exception

was rejected for failure of reasonable notice, than Gillen v. United Services

Automobile Ass’n, 300 So. 2d 3 (Fla. 1974), the next closest on its facts and the

only precedent upon which we might base a contrary holding. Unlike the Gillens,

for example, the Duckworths had not taken steps that would indicate to a reasonable

29
observer that they had settled, once and for all, in Florida. While the Gillens had a

permanent home in Florida, enrolled their children in Florida schools, and

registered all of their vehicles in Florida, Gillen, 300 So. 2d at 6, the Duckworths

lived at a temporary address and had two vehicles still registered in Maryland.

Moreover, and more importantly, the Gillens had notified their insurer that they had

a permanent home in Florida and had even purchased a Florida insurance policy for

one of their vehicles, two things the Duckworths had not done. Id. As such, while

the Gillens were paying a Florida premium and being denied the benefits of Florida

law, here we have the Duckworths paying Maryland premiums and requesting

Florida coverage for which they had not paid.

Instead, like the insureds in Davella, the Duckworths informed State Farm

that they were moving to Florida and hoped to stay there permanently. See 450 So.

2d at 1205. Likewise, State Farm was aware in both cases of facts indicating that

the insureds were still living in temporary housing and had no prospects for

permanent housing. Moreover, in this case as well as in Davella, State Farm knew

that the insureds’ plans to settle in Florida permanently were contingent upon the

occurrence of an event that was not certain—or, more accurately, doubtful—to

occur. See id. In Davella, for example, Mrs. Davella informed her agent that she

and her husband were having trouble securing housing and obtaining a mortgage in

30
Florida and might have to return to Colorado unless those troubles could be

resolved, id., while in this case Anna told Whiting that she and Aquila would not

know where they would settle until Aquila found employment and that Aquila’s job

prospects were not good.

And, finally, in both cases, the insureds rejected at least one good opportunity

to purchase Florida insurance and instead renewed their policies with their former

agents in their former home states, the Davellas in Colorado and the Duckworths in

Maryland. Based on Davella, then, the Duckworths’ choice to forego Florida

coverage and ignore the Move Center letter deprived of State Farm of reasonable

notice. See id. at 1204. Instead, the Duckworths appeared to State Farm to be just

like the insureds in New Jersey Manufacturers Insurance Co. v. Woodward, 456 So.

2d 552 (Fla. 3d Dist. Ct. App. 1984), who had only changed their mailing address to

reflect the fact that they were temporarily staying in Florida. See id. at 553.

On balance, then, these Florida precedents further support our belief that the

Supreme Court of Florida would decline Anna’s invitation to apply the public

policy exception. To apply the exception would, as the court warned against in

State Farm Mutual Automobile Insurance Co. v. Roach, 945 So. 2d 1160, 1169(Fla.

2006), and Sturiano v. Brooks, 523 So. 2d 1126, 1129–30 (Fla. 1988), threaten the

stability of contracts, the very principle at the core of Florida’s lex loci rule. Florida

31
law, as explained by these precedents, does not permit an insured to unilaterally

alter his bargain with his insurer without reasonable notice. The Duckworths paid

Maryland premiums for Maryland coverage, and we, like the Florida courts, cannot

absolve them of the burdens of their bargain.

IV.

For the reasons stated above, and based on the totality of the circumstances,

we conclude that, even if Anna had told Whiting that the Duckworths move to

Florida was “permanent,” the Duckworths nonetheless failed to clearly demonstrate

to State Farm that they had become permanent Florida citizens. For this reason,

judgment as a matter of law is proper: absent reasonable notice, the public policy

exception is inapplicable and, as the district court concluded, State Farm is entitled

to declaratory relief. The district court’s grant of summary judgment in favor of

State Farm, therefore, is

AFFIRMED.

32
CARNES, Circuit Judge, dissenting:

Summary judgment should be granted only when there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law. Fed.

R. Civ. P. 56. But it is often tempting for a district court judge to grant, and for

appellate judges to affirm, summary judgment even when there is conflicting

evidence on a material issue. The temptation is for the judge to take on the task of

finding facts and enter judgment based on what the judge believes a jury should

find. By affirming the grant of summary judgment in this case, the majority follows

the maxim of Lord Henry Wotton in Oscar Wilde’s The Picture of Dorian Gray:

“The only way to get rid of a temptation is to yield to it.”

1

The majority opinion is wrong to conclude that, after drawing all reasonable

inferences in Anna Duckworth’s favor, no reasonable factfinder could find from the

evidence that the Duckworths gave State Farm reasonable notice that they had

permanently moved to Florida. The conclusion is wrong for a number of reasons,

chief of which is Anna Duckworth’s testimony that she unequivocally told State

Farm’s agent that she and her husband were permanently moving to Florida. That

fact—and we are required to accept it as a fact for summary judgment

purposes—the majority simply dismisses as “immaterial.” Maj. Op. at 11 n.7. But

Oscar Wilde, The Picture of Dorian Gray 35 (Signet Classic 1962) (1890). 1

33
that fact is anything but immaterial. There can be no more material fact about

whether Anna Duckworth put State Farm on notice that she and her husband were

moving to Florida permanently than the fact that she told State Farm they were

moving to Florida permanently.

I.

The majority opinion states that even assuming, as it must at this stage, that

Anna Duckworth told State Farm’s Agent Whiting that she and her husband were

permanently moving to Florida, “State Farm still had valid reason to doubt that the

Duckworths intended to permanently reside in Florida.” Maj. Op. at 11 n.7. It

argues that “[a] reasonable observer in State Farm’s position . . . would have good

cause to question whether the Duckworths intended to permanently reside in

Florida,” and “even had Anna told Whiting the move to Florida was ‘permanent,’ it

was still possible that the Duckworths would decide to permanently reside

elsewhere.” Maj. Op. at 26. It insists that the Duckworths’ “later actions

overwhelmingly indicated to State Farm that [their] move to Florida was not

necessarily permanent.” Maj. Op. at 5–6.

While all of that might be proven true at a trial, none of it matters at the

summary judgment stage, which is where we are. There is no support in the

governing substantive law of Florida or in our summary judgment law for the

34
proposition that judgment can be granted on the factual issue of notice of the

insured’s intent because an insurer has “valid reason to doubt” an insured’s

unequivocal statement of intent, because an insurer has “good cause to question” if

the insured will carry out the stated intent, because it is “still possible” that an

insured could change her intent, or because later actions indicated that the move

“was not necessarily permanent.”

The rule is that “[s]ummary judgment should be granted only when the

evidence produced by the nonmoving party, when viewed in a light most favorable

to that party, fails to establish a genuine issue.” Tippens v. Celotex Corp., 805 F.2d

949, 953 (11th Cir. 1986). “If one or more of the essential elements is in doubt,

then summary judgment must not be granted.” Id. at 952. All a non-moving party

must do to avoid summary judgment is show a disputed issue of material fact.

“Where the non-movant presents direct evidence that, if believed by the jury,

would be sufficient to win at trial, summary judgment is not appropriate even where

the movant presents conflicting evidence. It is not the court’s role to weigh

conflicting evidence or to make credibility determinations; the non-movant’s

evidence is to be accepted for purposes of summary judgment.” Mize v. Jefferson

City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996). In other words, in

determining whether a genuine issue of material fact remains at this stage of the

35
proceedings, “[n]either we nor the district court are to undertake credibility

determinations or weigh the evidence.” Latimer v. Roaring Toyz, Inc., 601 F.3d

1224, 1237 (11th Cir. 2010); cf. Norelus v. Denny’s, Inc., 628 F.3d 1270, 1293

(11th Cir. 2010) (“[A]s everyone knows, appellate courts may not make fact

findings.”). That, however, is exactly what the district court did in granting

summary judgment to State Farm and what the majority has done in affirming it.

A.

At her deposition, Anna Duckworth testified as follows:

Q: And did you tell [the Maryland agent] that that was going to be a

permanent change of address for you?

A: I told her that we were permanently moving to the State of

Florida, I just wasn’t sure where we were going to live in

Florida. She was also informed that [the new address] was my

daughter’s home and that I would notify her when we decided

where in Florida we were going to live.

Q: All right. And you specifically recall telling her that you were

going to find other residence someplace in the State of Florida

other than your daughter’s residence?

A: Yes.

Q: Did you suggest or indicate to her that you were going to be

staying temporarily with your daughter?

A: Temporarily with my daughter, yes. Permanently in the State of

Florida.

Q: And you—as you sit here today, you recall that specific

36
statement that, I am permanently living in Florida effective May

whatever date, 2006?

A: Yes.

In order to conclude that State Farm did not have reasonable notice that the

Duckworths had permanently moved to Florida, one would have to disbelieve Anna

Duckworth’s deposition testimony that she specifically told her State Farm agent in

Maryland that even though her address in Florida was temporary, the move to

Florida was permanent. And that is exactly what the majority does—disbelieve the

testimony—even though courts are not authorized at the summary judgment stage

to believe or disbelieve testimony.

2

The majority rejects Anna Duckworth’s testimony as “immaterial” because it

finds as a fact that the Duckworths’ “later actions overwhelmingly indicated to State

Farm that [their] move to Florida was not necessarily permanent.” Maj. Op. at 5–6.

But at the summary judgment stage courts, including appellate courts, have no

business making fact findings.

In a squid-like attempt to cover its move into the jury box, the majority

After making that credibility determination, the majority analogizes the present case to 2

one in which “the insured advised the company on several occasions that her move to Florida

was temporary and that she wanted to keep her Colorado policy intact.” State Farm Mut. Auto.

Ins. Co. v. Davella, 450 So. 2d 1202, 1204 (Fla. 3d DCA 1984); see Maj. Op. at 30–31. The

analogy, of course, does not fit. Anna Duckworth did not tell the insurance company that the

move to Florida was temporary, but just the opposite. Opposites are not analogous, but just the

opposite. 

37
opinion throws up a cloud of ink composed of lesser facts in an effort to mask its

unauthorized rejection of the primary fact that State Farm was told that the

Duckworths’ move to Florida was permanent. See Maj. Op. at 24–26. The

majority’s list of facts is incomplete. Among the facts that the majority

acknowledges earlier in its opinion but fails to include in its list of those relevant to

the critical issue of notice are these:

(1) “In July 2006 . . . Anna called Whiting to inform her that the

motorcycle’s California registration had expired, that Aquila had

registered the motorcycle in Florida, and that the motorcycle

had a new Florida license plate.” Maj. Op. at 12.

(2) “In response to Anna’s call, Whiting sent Anna new proof-ofinsurance cards” to the Duckworths’ Florida address. Maj. Op.

at 12.

(3) “In November 2006, Anna again called Whiting, . . . and Anna

told her that Aquila was ‘still putting in applications all over

Florida.’” Maj. Op. at 12–13.

(4) Anna testified that when she declined to obtain new policies

from Debbie Banks through the Charlie Cobb State Farm

agency, Debbie advised her to “[w]ait until you get settled,

[because] insurance rates in Volusia County [Florida] are higher

than anywhere else [in Florida].” Doc. 28–2 at 97; see Maj.

3

Op. at 11–12, 12 n.8.

(5) “[O]n November 9, 2006, Anna faxed Whiting a typed

Crediting Anna Duckworth’s testimony and drawing all reasonable inferences in her 3

favor, we have to infer that Debbie Banks meant that “insurance rates in Volusia County are

higher than anywhere else” in Florida, thereby implying that Banks, an agent of State Farm, was

aware of the Duckworths’ intentions to reside permanently somewhere in Florida.

38
confirmation of the request that listed Nikki’s [Florida] address

as their place of residence.” Maj. Op. at 13.

(emphasis added).

Despite all of those facts, and Anna Duckworth’s own unequivocal testimony

that she specifically told State Farm Agent Whiting that the Duckworths were

permanently moving to Florida, the majority nevertheless insists on pretending that

“State Farm had no information from which it could infer that the Duckworths had

conclusively decided that their new home would be in Florida.” Maj. Op. at 26–27

(emphasis added). Summary judgment ought not be based on the pretended

absence of evidence.

Faced with conflicting evidence, a reasonable trier of fact could conclude that

the Duckworths put State Farm on reasonable notice that their move to Florida was

permanent, or it could conclude, as the majority acting as a factfinder does, that

their inconsistent actions “overwhelmingly indicated to State Farm that the

Duckworths’ move to Florida was not necessarily permanent.” Maj. Op. at 5–6.

Because reasonable minds could differ in their ultimate conclusions based on the

disputed and undisputed material facts, a trier of fact—not the district court on a

motion for summary judgment and not a majority of this Court—should weigh the

conflicting evidence and make a fact finding about whether State Farm had

reasonable notice that the Duckworths’ move was permanent.

39
B.

Because of its decision against Anna Duckworth on the reasonable notice

issue, the majority does not reach the citizenship requirement of Florida’s public

policy exception to its lex loci contractus rule. Because I disagree with the majority

on the reasonable notice issue, I will address it. The requirement means that in

order to get past summary judgment, Anna Duckworth must have created a genuine

issue of material fact that the Duckworths were “in the process of establishing

themselves as permanent residents” of Florida. See Gillen v. United Servs. Auto.

Ass’n, 300 So. 2d 3, 6 (Fla. 1974). I conclude that Anna Duckworth’s testimony

along with other undisputed facts create a genuine issue about that, so that the

district court was also precluded from granting summary judgment to State Farm on

the citizenship requirement.

The following evidence created a genuine issue about whether the

Duckworths were actually in the process of establishing themselves as permanent

residents of Florida at the time of the accident:

(1) Anna had full-time employment in Florida;

(2) Aquila had part-time employment in Florida;

(3) both Aquila and Anna were actively seeking long-term

employment in Florida;

(3) one of the Duckworths’ three vehicles (the Yamaha motorcycle)

40
was registered in Florida;

(4) Aquila had obtained a concealed weapons permit in Florida;

(5) Aquila joined the American Legion in Florida;

(6) the Duckworths had opened a bank account in Florida;

(7) the Duckworths had Florida driver licenses that predated their

move to California;

(8) the Duckworths had Florida voter registration cards (which had

expired)

(9) the Duckworths filed income tax returns as Florida residents.

4

There was, to be sure, evidence weighing against a finding that the

Duckworths actually were permanent Florida residents, including: their temporary

living arrangements with Anna’s daughter (in Florida); the Cavalier vehicle had a

Maryland title and was registered in Maryland; the Probe vehicle was registered in

California with a Maryland address on the title; the Florida driver licenses at the

time of the accident listed the Duckworths’ California address; their voter

registrations had expired before they returned to Florida, and neither one had voted

in a Florida election after 1998 when they left Florida to move to California.

The conflicting evidence on the issue of Florida citizenship should be weighed by a

 Anna Duckworth asserts in her brief that she and her husband filed their income tax 4

returns as Florida residents. Because Florida has no state income tax, we assume that she means

they listed a Florida address on their federal income tax returns. Even though there is no record

citation for the assertion, State Farm’s brief does not dispute it.

41
trier of fact and not resolved by a court. Summary judgment on the issue is not

appropriate, and we ought to reverse.

42