*

Honorable Stanley S. Harris, Senior U.S. District Judge for

the District of Columbia, sitting by designation. 

 1Florida Statute § 627.727(2) provides, in relevant part: 

"The limits set forth in this subsection, and the provisions of

subsection (1) which require uninsured motorist coverage to be

provided in every motor vehicle policy delivered or issued for

delivery in this state, do not apply to any policy which does not

provide primary liability insurance that includes coverage for

liabilities arising from the maintenance, operation, or use of a

specifically insured motor vehicle. However, an insurer issuing

such a policy shall make available as a part of the application

for such policy, and at the written request of an insured, limits

up to the bodily injury liability limits contained in such

United States Court of Appeals,

Eleventh Circuit.

No. 95-4748.

Rita STROCHAK, Plaintiff-Appellant,

v.

FEDERAL INSURANCE COMPANY, a New Jersey Corporation, DefendantAppellee,

Keevily, Spero-Whitelaw, Inc., Defendant.

April 8, 1997.

Appeal from the United States District Court for the Southern

District of Florida. (No. 93-8500-CIV-KLR), Kenneth L. Ryskamp,

District Judge.

Before KRAVITCH and BARKETT, Circuit Judges, and HARRIS*

, Senior

District Judge.

PER CURIAM:

CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT TO THE SUPREME COURT OF FLORIDA, PURSUANT TO

ARTICLE V, SECTION 3(b)(6) OF THE FLORIDA CONSTITUTION. TO THE

SUPREME COURT OF FLORIDA AND THE HONORABLE JUSTICES THEREOF:

Appellant Rita Strochak appeals the district court's order

granting summary judgment on her contract claim for excess

uninsured motorist coverage based on Florida Statute § 627.727(2)

(1990)1 in favor of Appellee Federal Insurance Company ("FIC").
policy." Fla.Stat.Ann. § 627.727(2) (West 1990). 

This case presents an important issue of Florida law that has not

been addressed by the Supreme Court of Florida. Thus, we believe

that the issue is appropriate for resolution by Florida's highest

court. We therefore defer our decision in this case pending

certification of the question to the Supreme Court of Florida. See

Varner v. Century Finance Co., Inc., 720 F.2d 1228 (11th Cir.1983).

I. STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

This case arises out of an automobile accident that occurred

on November 14, 1992, in Broward County, Florida, in which Rita

Strochak sustained serious injuries when she was struck by a

phantom vehicle. At the time of the accident, Strochak was the

named insured under a "Masterpiece" personal excess liability

policy with FIC. Strochak filed suit against FIC seeking excess

uninsured motorists benefits in the amount of $5,000,000 under the

excess policy claiming entitlement under Florida Statute §

627.727(2) which requires insurers of excess policies to "make

available as a part of the application for such policy" excess

uninsured motorist coverage in an amount equal to the liability

limits of the excess policy. The question presented in this case

is the meaning of this phrase as it relates to automobiles

registered or principally garaged in Florida notwithstanding the

residence of the insured or the place where the insurance coverage

was initially purchased.

In 1985, Appellant's husband Donald Strochak applied for a

primary liability policy and an excess liability policy in New

Jersey from Keevily, Spero-Whitelaw, Inc. ("Keevily"), a New York
 2

The 1984 Lincoln was covered by a policy held by Turnpike

Ford in addition to being covered under Donald Strochak's FIC

personal excess policy until the time of Donald Strochak's

demise. 

independent insurance producer. In filling out the application in

New York, Donald Strochak indicated New Jersey as his main

residence although he owned a house in Florida. During this

application process in New York, Donald Strochak executed a written

rejection of excess uninsured motorists ("UM") coverage. FIC

issued the excess policy, number 1051832901-01, effective June 17,

1985. This policy covered the two residences maintained by the

Strochaks, a co-op in New Jersey, listed as the primary residence,

and a house in Florida. The policy also covered three vehicles,

including the 1984 Lincoln which was involved in the accident. No

vehicle was registered or principally garaged in Florida at the

time the excess policy was issued. The 1984 Lincoln was registered

in New York and principally garaged in New Jersey.

The 1984 Lincoln was originally owned by Turnpike Ford, a car

dealership owned by Donald Strochak.2

 Shortly after Donald

Strochak's death, in October of 1987, Rita Strochak purchased the

vehicle from the business and had it shipped to Florida. In March

of 1989, she registered the Lincoln in Florida. At this time, Rita

Strochak obtained a primary automobile liability policy from FIC

for the Lincoln, listing Delray Beach, Florida as her address.

This primary policy was issued and delivered in Florida.

For the 1989 renewal of the excess policy, FIC mailed a

Masterpiece policy addressed to Donald Strochak to the New Jersey

residence along with a letter explaining the newly created
 3

Rita Strochak contends that the Lincoln was not covered at

this time as it was not listed specifically in the policy. Thus,

she argues that there was a gap in vehicle coverage under the

Masterpiece policy from 1989 to 1990. 

Masterpiece program, although Donald Strochak had been deceased for

eighteen months. The Masterpiece program, according to Patricia

Harris, FIC's underwriting representative, was the result of

marketing changes for FIC's 1989-1990 renewals. All policies held

by an insured which existed at the time that the Masterpiece

program was introduced were renewed into policies called

"Masterpiece." No new applications were required to renew existing

policies into a Masterpiece. The Masterpiece policy sent to Donald

Strochak in 1989, number 1051832-01, replaced all excess policies

held by Donald Strochak, except for two exceptions not relevant to

this case. The 1989 Masterpiece policy did not specifically

identify any vehicle for coverage, but, by its terms, covered all

vehicles unless specifically excluded, regardless of whether a

separate premium was paid for the vehicles.3

 No premium was paid

for any vehicle from 1989 to 1990. In March of 1990, the

Masterpiece policy was amended to list Rita Strochak as the named

insured and to list the mailing address as Delray Beach, Florida.

On June 17, 1990, the Lincoln, which was now registered and

principally garaged in Florida, was added to the Masterpiece

policy. This was accomplished through Keevily who notified FIC of

the addition of the Lincoln. Strochak began paying a separate

premium for the Lincoln in 1991. In April of 1992, Rita Strochak

asked Edmond Frankel, her son, to notify FIC of a change in her

mailing address from Florida back to New Jersey. Frankel called
Keevily who in turn notified FIC of this change. Rita Strochak

returned to New Jersey at this time with the Lincoln.

Effective June 17, 1992, the Masterpiece was renewed, listing

the 1984 Lincoln as garaged in Florida. This policy was in effect

at the time of the November 1992 accident.

In granting summary judgment in favor of FIC, the district

court assumed, without deciding, that Florida law applied. The

court then determined that FIC had complied with Florida law based

on Donald Strochak's written rejection of excess UM coverage in

1985 in New Jersey. The court further found that the excess policy

was continuously renewed from 1985 through the date of the accident

without a lapse in coverage.

 We must first determine if the district court was correct in

applying Florida law. We review conflicts of law issues de novo.

Trumpet Vine Investments v. Union Capital Partners, Inc., 92 F.3d

1110, 1115 (11th Cir.1996). In determining which law applies, a

federal court sitting in diversity must apply the choice of law

rules of the forum state. Klaxon Co. v. Stentor Elec. Mfg. Co.,

Inc., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477

(1941). Under Florida choice of law rules, a contract for

automobile insurance generally is interpreted according to the law

of the state where the contract was made. Sturiano v. Brooks, 523

So.2d 1126, 1129 (Fla.1988). However in specifically applying §

627.727 Florida law applies. Amarnick v. Automobile Ins. Co. of

Hartford, 643 So.2d 1130 (Fla.3d DCA 1994). In Sturiano the court

primarily addressed the question of whether interspousal immunity

barred a wife's claim under an automobile insurance policy when she
was the passenger and her husband was the negligent driver of a

vehicle. The court held that although the doctrine of interspousal

immunity is waived in Florida to the extent of applicable liability

insurance, the law of New York, the place where the contract in

Sturiano was executed, would apply. The court noted that the

insurance company did not know of the insured's move or connection

to Florida, and when parties "come to terms in an agreement, they

do so with the implied acknowledgment that the laws of that

jurisdiction will control absent some provision to the contrary."

Sturiano, 523 So.2d at 1129. In Amarnick, however, Florida's

uninsured motorist statute § 627.727 was directly implicated. In

that case, the court reasoned that the purpose of § 627.727 was to

protect " "persons who are insured under a policy covering a motor

vehicle registered or principally garaged in Florida and who are

impaired or damaged in Florida by motorists who are uninsured or

underinsured and cannot thereby make whole the impaired party.' "

Amarnick, 643 So.2d at 1131 (quoting Decker v. Great American Ins.

Co., 392 So.2d 965, 968 (Fla.2d DCA 1980), rev. denied, 399 So.2d

1143 (Fla.1981)). The vehicle in Amarnick was principally garaged

in Florida, and notwithstanding that the policy was delivered in

New York, the court held that Florida law applied and the insurer

was required to provide the uninsured motorist coverage mandated by

§ 627.727. Amarnick, 643 So.2d at 1132. The court reasoned that

since the insurer knew that the vehicle was principally garaged in

Florida, the policy was written to cover risks occurring in

Florida. Thus, the court construed the policy as "issued for

delivery" in Florida and subject to the requirements of Florida,
 4

Amarnick is the only appellate opinion on this question in

Florida, and this issue is certainly within the purview of this

case should the Florida Supreme Court decide to address it

further. 

 5Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817,

82 L.Ed. 1188 (1938). 

and not New York, law. Id. Likewise, in this case, FIC was aware

that the 1984 Lincoln was principally garaged in Florida as

evidenced by the Coverage Summary of the 1992 Masterpiece policy

which listed Delray Beach, Florida, as the garage location. Thus,

this case appears to be controlled by Amarnick and Florida law

applies.4

 On appeal, Strochak argues that Florida Statute § 627.727(2)

applies because Florida acquired an interest in 1990 when the

Lincoln became "registered or principally garaged" in Florida and

was added to the 1990 Masterpiece policy. Strochak contends that

this 1990 Masterpiece policy was the first excess policy which

provided any motor vehicle liability coverage for a vehicle

registered or principally garaged in Florida. In response, FIC

argues that it complied with Florida law when, in 1985, it offered

UM coverage to Donald Strochak, who executed a written rejection of

the offer.

There is no case law directly addressing this issue. "Where

there is any doubt as to the application of state law, a federal

court should certify the question to the state supreme court to

avoid making unnecessary Erie5

 "guesses' and to offer the state

court the opportunity to interpret or change existing law."—Mosher

v. Speedstar Div. of AMCA Intern., Inc., 52 F.3d 913, 916-17 (11th

Cir.1995) (citing Jackson v. Johns-Manville Sales Corp., 781 F.2d
394, 396 (5th Cir.) cert. denied, 478 U.S. 1022, 106 S.Ct. 3339, 92

L.Ed.2d 743 (1986)). Thus we certify the following question to the

Florida Supreme Court.

IV. QUESTION TO BE CERTIFIED TO THE FLORIDA SUPREME COURT

(1) WHETHER AN EXCESS CARRIER HAS A DUTY TO MAKE AVAILABLE THE

UNINSURED MOTORISTS COVERAGE REQUIRED BY FLORIDA STATUTE §

627.727(2) TO AN INSURED UNDER AN EXISTING POLICY ON VEHICLES WHICH

HAD NEVER BEEN REGISTERED OR PRINCIPALLY GARAGED IN FLORIDA

WHENEVER ANY VEHICLE, COVERED OR SUBSEQUENTLY ADDED, FIRST BECOMES

REGISTERED OR PRINCIPALLY GARAGED IN FLORIDA.

Our particular phrasing of the question is not intended to

limit the Florida Supreme Court's inquiry. The entire record in

this case, together with copies of the briefs, shall be transmitted

to the Supreme Court of Florida.

QUESTION CERTIFIED.