CopyCited 49 times | Published | Court of Appeals for the Eleventh Circuit | 1993 U.S. App. LEXIS 25043
...American Pioneer Savings Bank,
655 F.Supp. 165 (S.D.Fla.1987); Continental Mortgage Insurance Inc. v. Empire Home Loans, Inc., No. 75-1099-CIV-JLK (S.D.Fla. Nov. 26, 1975). 23 On October 1, 1983, the landscape of Florida insurance statutes may have shifted. On that day, section
635.091, titled "Provisions of Florida insurance Code applicable to mortgage guaranty insurance," was added to Chapter 635 of the Florida Statutes. It provides as follows: 24 The following provisions of the Florida Insurance Code apply to mortgage guaranty insurers; chapter 624; chapter 625; parts I, II, VIII, and X of chapter 626; s.
627.915; chapter 628; and chapter 631. 25 Section
635.091 explicitly sets forth those parts of the Insurance Code applicable to mortgage guaranty insurers....
...nto Chapter 635. 26 In Home Guaranty Ins. Corp. v. Numerica Financial Services, Inc.,
835 F.2d 1354 (11th Cir.1988), this Court held that Sec.
627.409 does not apply to mortgage guaranty insurance contracts formed after October 1, 1983, because Sec.
635.091 did not expressly incorporate Sec....
...The parties agree that had the two insurance certificates been executed after October 1, 1983, Numerica would control and Verex would be required to bear the loss associated with the material misrepresentations. 27 The certificates of insurance involved in this case, however, were issued before the effective date of Sec.
635.091 on October 1, 1983. The issue of whether Sec.
627.409 applied to mortgage guaranty insurance before October 1, 1983 has not been directly considered subsequent to our decision in Numerica and the enactment of Sec.
635.091. Therefore, as the district court recognized, we are faced with a question of first impression: Did the Florida legislature enact Sec.
635.091 to clarify that Sec.
627.409 does not apply to mortgage guaranty insurance, or was Sec.
635.091 enacted to repeal, by implication, the application of Sec....
...627.409 to mortgage guaranty insurance? 28 Lamenting its lack of authority to certify questions of Florida law to the Florida Supreme Court, the district court decided this novel question and concluded that Sec.
627.409 did apply to mortgage guaranty insurance prior to the enactment of Sec.
635.091....
...issue to that Court. We set forth the following non-exhaustive review of the contentions of the parties which may assist the Florida Supreme Court in its consideration of this issue. 29 FDIC argues that the statutory scheme in place at the time Sec.
635.091 became effective indicates that the Florida legislature intended merely to clarify that Sec.
627.409 never applied to mortgage guaranty insurance, rather than work a substantive change through Sec.
635.091....
...Insurance Code which the legislature made applicable to mortgage guaranty insurance, and no other provisions of the Florida Insurance Code were incorporated by reference into Chapter 635. FDIC contends that when the Florida legislature enacted Sec.
635.091, it did so to clarify by detailed statement of chapter and section those provisions of the insurance code previously applicable to mortgage guaranty insurers through subject matter description in sections
635.051 and
635.081. 31 FDIC also cites the legislative history surrounding the adoption of Sec.
635.091 to support its contention that this section was a technical amendment meant for clarification, not change....
...on Commerce, (Dec. 21, 1982) ("House Analysis") and the Staff Summary and Analysis of Chapter 635, Fla. Senate Comm. on Commerce, (Dec. 1982) ("Senate Analysis"). FDIC points to Section 13 of the House Analysis, which discussed the statute codified at Sec. 635.091. FDIC alleges that Section 13 reveals that Sec. 635.091 was only a technical amendment....
...mortgage guaranty insurers. This should be considered a technical amendment because casualty and surety insurers are currently subject to these parts of the code. House Analysis at p. 3. 33 This language means, according to FDIC, that enacting Sec. 635.091 was not a repeal, implied or otherwise, of the existing scheme, but rather the enactment was a clarification of the law as it existed....
...following modifications; 35 Provide technical corrections and clarifying amendments to improve organization and understanding. Senate Analysis at p. 42. 36 In sum, FDIC argues that the legislative history supports its position that by enacting Sec. 635.091, no substantive change occurred in Florida law governing mortgage guaranty insurance policies. 37 Verex contends that the district court correctly determined that prior to the enactment of Sec. 635.091, Sec....
...627.409, by excluding from its regulations certain types of insurance contracts. Noting the absence of mortgage guaranty insurance from this list of exclusions, Verex argues that finding that Sec.
627.409 did not apply to mortgage guaranty insurance prior to the enactment of Sec.
635.091 would effectively rewrite Sec....
...627.4145 to exempt mortgage guaranty insurance policies from the readability language requirements of the statute. Fla.Stat. Sec.
627.4145(6)(g) (1985). Verex points out that the Florida legislature must have known that Sec.
627.4148 is not listed among the Insurance Code provisions in Sec.
635.091 which were applicable to mortgage guaranty insurance....
...On October 1, 1990, the Florida legislature amended Sec.
627.4133 to exempt mortgage guaranty insurance from its coverage. Verex asserts that FDIC's position means that Sec.
627.4133 has not applied to mortgage guaranty insurance at least since 1983 when Sec.
635.091 was adopted because Sec.
635.091 does not list Sec....
...627.4133 in 1990 specifically to exempt mortgage guaranty insurance, Verex insists that this statute must have applied to mortgage guaranty insurance prior to that time. 40 Verex maintains that the amendments to sections
627.4145 and
627.4133 indicate that FDIC's interpretation of the purpose and effect of Sec.
635.091 is untenable. If Sec.
635.091 were enacted only to clarify those sections of the Insurance Code applicable to mortgage guaranty insurance, then the amendments would have been without purpose. Thus, Verex argues that FDIC's explanation of Sec.
635.091 is incorrect....
...e guaranty insurance companies to comply with provisions of the Insurance Code. This legislative history shows that mortgage guaranty insurance is not governed exclusively by Chapter 635, Verex contends. Thus, Verex argues that the enactment of Sec. 635.091 in 1983 was an implied repeal of the application of Sec....
...rtification to and resolution by the Supreme Court of Florida. We therefore certify the following question: 44 Did Fla.Stat. Sec.
627.409 apply to applications for and contracts of mortgage guaranty insurance prior to the enactment of Fla.Stat. Sec.
635.091 on October 1, 1983? 45 We do not intend the particular phrasing of the question to limit the Supreme Court of Florida in its consideration of the problems posed by the case....
CopyCited 4 times | Published | Court of Appeals for the Eleventh Circuit | 1988 U.S. App. LEXIS 412
...Section
627.409 is part of the Florida Insurance Code. The general provisions of the Florida Insurance Code, however, do not govern mortgage guaranty insurance. Mortgage guaranty insurance is instead regulated by Chapter 635 of the Florida statutes. Fla.Stat. Sec.
635.091 (1985) ("Section
635.091") provides that certain other parts of the Insurance Code apply to Chapter 635....
...To the extent that the legislature wished to incorporate provisions of the Code into Chapter 635, it expressly did so by statute. Because Section
627.409 is not among the provisions incorporated, it is not applicable to mortgage guaranty insurance. HGIC'S ARGUMENTS 1. The Plain Meaning of Section
635.091 14 HGIC agrees with Numerica that the plain meaning of Section
635.091 should govern this dispute. HGIC, however, disagrees on what the plain meaning of the statute is. The statute purports to set forth those parts of the Insurance Code applicable to mortgage guaranty insurers. Fla.Stat. Sec.
635.091 (1985). This, HGIC argues, is very different from stating that those sections govern mortgage guaranty insurance. We agree with HGIC that Section
635.091 attempts to regulate mortgage guaranty insurers. However, the meaning of "insurers" under the statute is broad. Section
627.409, if applicable, would have been named in Section
635.091. 15 Section
635.091 selectively incorporates various portions of the Insurance Code....
...Implied Repeal 16 Next, HGIC asserts that in Florida there is a presumption against implied repeal of a statute, and that the district court ignored that presumption. We disagree. First, it is unclear that Section
627.409 ever applied to mortgage guaranty insurance. Prior to the enactment of Section
635.091, only one court had relied on Section
627.409 to hold that a mortgage guaranty insurance contract was void....
...ode partly in order to clarify that many other parts of the Insurance Code, including Section
627.409, do not govern mortgage guaranty insurance law. If the legislature never intended for Section
627.409 to apply to mortgage guaranty insurance, then Section
635.091 did not constitute a repeal of Section
627.409 as it applied to mortgage guaranty insurance. 17 Second, even if the legislature had originally intended Section
627.409 to apply to mortgage guaranty insurance, Section
635.091 changes this....
...See State ex rel. Shevin v. Indico Corp.,
319 So.2d 173, 175 (Fla. DCA 1975), cert. dismissed,
339 So.2d 1169 (Fla.1976). Any reading of Section
627.409 that applies it to mortgage guaranty insurance is clearly inconsistent with the more recently enacted Section
635.091. To the extent that Section
627.409 may have applied to mortgage guaranty insurance, then, we find that it has been repealed by Section
635.091....
...To the extent that mortgage guaranty insurance is like casualty or surety insurance and should be treated as such, sections of Chapter 635 expressly mention this fact. Many provisions of the Insurance Code do apply to Chapter 635, and regulate the business fairly thoroughly. In addition to those provisions incorporated under Section 635.091, Fla.Stat....
...As a result, only HGIC, Numerica, and Berkeley are still parties to this action 4 For the purposes of this interlocutory appeal alone, the materiality of the misrepresentations is not at issue 5 This assumption was not completely unfounded. Prior to the enactment of Section
635.091, one district court judge had applied Section
627.409 to mortgage guaranty insurance....
...75-1099-Civ-JLK (S.D.Fla. Nov. 26, 1975). The court in United Guarantee Residential Insurance Corp. of North Carolina v. American Pioneer Savings Bank,
655 F.Supp. 165 (S.D.Fla.1987), also applied the statute to a mortgage guarantee insurance contract that existed before Section
635.091's enactment. The court in that case, however, implied that Section
635.091 would "repeal" Section
627.409 in this area of the law in the future. See id. at 168 n. 7. The issue of the applicability of Section
627.409 has not been directly addressed since the enactment of Section
635.091 6 Section
635.091 reads: "The following provisions of the Florida Insurance Code apply to mortgage guaranty insurers: Chapter 624; Chapter 625; parts I, II, VIII, and X of Chapter 626; Sec.
627.915; Chapter 628; and Chapter 631." Fla.Stat. Sec.
635.091 (1985) 7 Under the common law, a warranty was any term made a part of the policy itself....
CopyCited 2 times | Published | Court of Appeals for the Eleventh Circuit
...American Pioneer Savings Bank,
655 F.Supp. 165 (S.D.Fla.1987); Continental Mortgage Insurance Inc. v. Empire Home Loans, Inc., No. 75-1099-CIV-JLK (S.D.Fla. Nov. 26, 1975). On October 1, 1983, the landscape of Florida insurance statutes may have shifted. On that day, section
635.091, titled “Provisions of Florida insurance Code applicable to mortgage guaranty insurance,” was added to Chapter 635 of the Florida Statutes. It provides as follows: The following provisions of the Florida Insurance Code apply to mortgage guaranty insurers; chapter 624; chapter 625; parts I, II, VIII, and X of chapter 626; s. 627-915; chapter 628; and chapter 631. Section
635.091 explicitly sets forth those parts of the Insurance Code applicable to mortgage guaranty insurers....
...Section 627.-409 does not appear on the list of provisions expressly incorporated into Chapter 635. In Home Guaranty Ins. Corp. v. Numerica Financial Services, Inc.,
835 F.2d 1354 (11th Cir.1988), this Court held that § 627.-409 does not apply to mortgage guaranty insurance contracts formed after October 1, 1983, because §
635.091 did not expressly incorporate §
627.409....
...The parties agree that had the two insurance certificates been executed after October 1, 1983, Numérica would control and Verex would be required to bear the loss associated with the material misrepresentations. The certificates of insurance involved in this case, however, were issued before the effective date of §
635.091 on October 1, 1983. The issue of whether §
627.409 applied to mortgage guaranty insurance before October 1, 1983 has not been directly considered subsequent to our decision in Numérica and the enactment of §
635.091. Therefore, as the district court recognized, we are faced with a question of first impression: Did the Florida legislature enact §
635.091 to clarify that §
627.409 does not apply to mortgage guaranty insurance, or was §
635.091 enacted to repeal, by implication, the application of §
627.409 to mortgage guaranty insurance? Lamenting its lack of authority to certify questions of Florida law to the Florida Supreme Court, the district court decided this *397 novel question and concluded that §
627.409 did apply to mortgage guaranty insurance prior to the enactment of §
635.091....
...fy this issue to that Court. We set forth the following non-exhaustive review of the contentions of the parties which may assist the Florida Supreme Court in its consideration of this issue. FDIC argues that the statutory scheme in place at the time §
635.091 became effective indicates that the Florida legislature intended merely to clarify that §
627.409 never applied to mortgage guaranty insurance, rather than work a substantive change through §
635.091....
...orida Insurance Code which the legislature made applicable to mortgage guaranty insurance, and no other provisions of the Florida Insurance Code were incorporated by reference into Chapter 635. FDIC contends that when the Florida legislature enacted §
635.091, it did so to clarify by detailed statement of chapter and section those provisions of the insurance code previously applicable to mortgage guaranty insurers through subject matter description in sections
635.051 and
635.081. FDIC also cites the legislative history surrounding the adoption of §
635.091 to support its contention that this section was a technical amendment meant for clarification, not change....
...on Commerce, (Dec. 21, 1982) (“House Analysis”) and the Staff Summary and Analysis of Chapter 635, Fla. Senate Comm, on Commerce, (Dec. 1982) (“Senate Analysis”). FDIC points to Section 13 of the House Analysis, which discussed the statute codified at § 635.091. FDIC alleges that *398 Section 13 reveals that § 635.091 was only a technical amendment....
...A new section would clarify that certain provisions of the Insurance Code apply to mortgage guaranty insurers. This should be considered a technical amendment because casualty and surety insurers are currently subject to these parts of the code. House Analysis at p. 3. This language means, according to FDIC, that enacting § 635.091 was not a repeal, implied or otherwise, of the existing scheme, but rather the enactment was a clarification of the law as it existed....
...s, with the following modifications; Provide technical corrections and clarifying amendments to improve organization and understanding. Senate Analysis at p. 42. In sum, FDIC argues that the legislative history supports its position that by enacting §
635.091, no substantive change occurred in Florida law governing mortgage guaranty insurance policies. Verex contends that the district court correctly determined that prior to the enactment of §
635.091, §
627.409 applied to mortgage guaranty insurance....
...om its regulations certain types of insurance contracts. Noting the absence of mortgage guaranty insurance from this list of exclusions, Verex argues that finding that §
627.409 did not apply to mortgage guaranty insurance prior to the enactment of §
635.091 would effectively rewrite §
627.401 to create a new exclusion for this type of insurance from the requirements imposed by Chapter 627, Part II....
...In 1985, the Florida legislature amended §
627.4145 to exempt mortgage guaranty insurance policies from the readability language requirements of the statute. Fla.Stat. §
627.4145(6)(g) (1985). Verex points out that the Florida legislature must have known that §
627.4148 is not listed among the Insurance Code provisions in §
635.091 which were applicable to mortgage guaranty insurance....
...On October 1, 1990, the Florida legislature amended §
627.4133 to exempt mortgage guaranty insurance from its coverage. Ve-rex asserts that FDIC’s position means that §
627.4133 has not applied to mortgage guaranty insurance at least since 1983 when §
635.091 was adopted because §
635.091 does not list §
627.4133....
...insurance, Verex insists that this statute must have applied to mortgage guaranty insurance prior to that time. Verex maintains that the amendments to sections
627.4145 and
627.4133 indicate that FDIC’s interpretation of the purpose and effect of §
635.091 is untenable. If §
635.091 were enacted only to clarify those sections of the Insurance Code applicable to mortgage guaranty insurance, then the amendments would have been without purpose. Thus, Verex argues that FDIC’s explanation of §
635.091 is incorrect....
...Verex points to similar language in the Senate Analysis which requires mortgage guaranty insurance companies to comply with provisions of the Insurance Code. This legislative history shows that mortgage guaranty insurance is not governed exclusively by Chapter 635, Verex contends. Thus, Verex argues that the enactment of §
635.091 in 1983 was an implied repeal of the application of §
627.409 to mortgage guaranty insurance, according to this Court’s opinion in Numéri-ca, rather than a mere technical clarification of those provisions of the Insurance Code made applicable to mortgage guaranty insurance by incorporation into Chapter 635....
...ate for certification to and resolution by the Supreme Court of Florida. We therefore certify the following question: Did Fla.Stat. §
627.409 apply to applications for and contracts of mortgage guaranty insurance prior to the enactment of Fla.Stat. §
635.091 on October 1, 1983? We do not intend the particular phrasing of the question to limit the Supreme Court of Florida in its consideration of the problems posed by the case....
CopyPublished | Supreme Court of Florida | 19 Fla. L. Weekly Supp. 593, 1994 Fla. LEXIS 1813
..., pursuant to article V, section 3(b)(6) of the Florida Constitution. 2 The question that we are asked to resolve is: Did Fla.Stat. §
627.409 apply to applications for and contracts of mortgage guaranty insurance prior to the enactment of Fla.Stat. §
635.091 on October 1, 1983? Federal Deposit Insurance Corporation v....
...American Pioneer Savings Bank,
655 F.Supp. 165 (S.D.Fla.1987); Continental Mortgage Insurance Inc. v. Empire Home Loans, *430 Inc., No. 75-1099-CIV-JLK (S.D.Fla. Nov. 26, 1975). On October 1, 1983, the landscape of Florida insurance statutes may have shifted. On that day, section
635.091, titled “Provisions of Florida insurance Code applicable to mortgage guaranty insurance,” was added to Chapter 635 of the Florida Statutes. It provides as follows: The following provisions of the Florida Insurance Code apply to mortgage guaranty insurers; chapter 624; chapter 625; parts I, II, VIH, and X of chapter 626; s.
627.915; chapter 628; and chapter 631. Section
635.091 explicitly sets forth those parts of the Insurance Code applicable to mortgage guaranty insurers....
...Section
627.409 does not appear on the list of provisions expressly incorporated into Chapter 635. In Home Guaranty Ins. Corp. v. Numerica Financial Services, Inc.,
835 F.2d 1354 (11th Cir.1988), this Court held that §
627.409 does not apply to mortgage guaranty insurance contracts formed after October 1, 1983, because §
635.091 did not expressly incorporate §
627.409....
...The parties agree that had the two insurance certificates been executed after October 1, 1983, Numerica would control and Verex would be required to bear the loss associated with the material misrepresentations. The certificates of insurance involved in this case, however, were issued before the effective date of §
635.091 on October 1, 1983. The issue of whether §
627.409 applied to mortgage guaranty insurance before October 1, 1983 has not been directly considered subsequent to our decision in Numeric a and the enactment of §
635.091. Therefore, as the district coui't recognized, we are faced with a question of first impression: Did the Floi’ida legislature enact §
635.091 to clai’ify that §
627.409 does not apply to mortgage guaranty insurance, or was §
635.091 enacted to repeal, by implication, the application of §
627.409 to moi*tgage guaranty insui'ance?
3 F.3d at 396 . The Circuit Coui't succinctly sets forth the arguments of the parties as follows: FDIC argues that the statutory scheme in place at the time §
635.091 became effective indicates that the Florida legislature intended merely to clarify that §
627.409 never applied to mortgage guaranty insurance, rather than work a substantive change through §
635.091....
...orida Insurance Code which the legislature made applicable to mortgage guaranty insurance, and no other provisions of the Florida Insurance Code were incorporated by reference into Chapter 635. FDIC contends that when the Florida legislature enacted §
635.091, it did so to clarify by detailed statement of chapter and section those provisions of the insurance code previously applicable to mortgage guaranty insurers through subject matter description in sections
635.051 and
635.081. FDIC also cites the legislative history surrounding the adoption of §
635.091 to support its contention that this section was a technical amendment meant for clarification, not change....
...Specifically, FDIC relies on Fla.H.R.Comm. on Commerce, (Dec. 21, 1982) ("House Analysis") and Fla.Senate Comm, on Commerce, (Dec. 1982) ("Senate Analysis”). FDIC points to Section 13 of the House Analysis, which discussed the statute codified at i 635.091. FDIC alleges that Section 13 reveals that § 635.091 was only a technical amendment....
...A new section would clarify that certain provisions of the Insurance Code apply to mortgage guaranty insurers. This should be considered a technical amendment because casualty and surety insurers are currently subject to these parts of the code. House Analysis at p. 3. This language means, according to FDIC, that enacting § 635.091 was not a repeal, implied or otherwise, of the existing scheme, but rather the enactment was a clarification of the law as it existed....
...s, with the following modifications; Provide technical corrections and clarifying amendments to improve organization and understanding. Senate Analysis at p. 42. In sum, FDIC argues that the legislative history supports its position that by enacting §
635.091, no substantive change occurred in Florida law governing mortgage guaranty insurance policies. • Verex contends that the district court correctly determined that prior to the enactment of §
635.091, §
627.409 applied to mortgage guaranty insurance....
...om its regulations certain types of insurance contracts. Noting the absence of mortgage guaranty insurance from this list of exclusions, Verex argues that finding that §
627.409 did not apply to mortgage guaranty insurance prior to the enactment of §
635.091 would effectively rewrite §
627.401 to create a new exclusion for this type of insurance from the requirements imposed by Chapter 627, Part II....
...In 1985, the Florida legislature amended §
627.4145 to exempt mortgage guaranty insurance policies from the readability language requirements of the statute. Fla.Stat. §
627.4145(6)(g) (1985). Verex points out that the Florida legislature must have known that §
627.4148 is not listed among the Insurance Code provisions in §
635.091 which were applicable to mortgage guaranty insurance....
...On October 1, 1990, the Florida legislature amended §
627.4133 to exempt mortgage guaranty insurance from its coverage. Verex asserts that FDIC's position means that §
627.4133 has not applied to mortgage guaranty insurance at least since 1983 when §
635.091 was adopted because §
635.091 does not list §
627.4133....
...ty insurance, Verex insists that this statute must have applied to mortgage guaranty insurance prior to that time. Verex maintains that the amendments to sections
627.4145 and
627.4133 indicate that FDIC's interpretation of the purpose and effect of §
635.091 is untenable. If §
635.091 were enacted only to clarify those sections of the Insurance Code applicable to mortgage guaranty insurance, then the amendments would have been without purpose. Thus, Verex argues that FDIC's explanation of §
635.091 is incorrect....
...Verex points to similar language in the Senate Analysis which requires mortgage guaranty insurance companies to comply with provisions of the Insurance Code. This legislative history shows that mortgage guaranty insurance is not governed exclusively by Chapter 635, Verex contends. Thus, Verex argues that the enactment of §
635.091 in 1983 was an implied repeal of the application of §
627.409 to mortgage guaranty insurance, according to this Court’s opinion in Numérica, rather than a mere technical clarification of those provisions of the Insurance Code made applicable to mortgage guaranty insurance by incorporation into Chapter 635....
...Instead, Verex argues that Chapter 635 provides the definitions and operational guidelines for mortgage guaranty insurers and their agents and imposes limitations on mortgage guaranty insurance in addition to the provisions of the Insurance Code applicable to casualty and surety insurers. . The legislature recently amended section
635.091 to include section
627.409 among the provisions of the Florida Insurance Code that apply to mortgage guaranty insurance....
CopyPublished | District Court, S.D. Florida | 1992 U.S. Dist. LEXIS 11207
...2 See United Guarantee Resid. Ins. Corp. of North Carolina v. American Pioneer Savings Bank,
655 F.Supp. 165 (S.D.Fla.1987); Continental Mortgage Insurance Inc. v. Empire Home Loans, Inc., No. 75-1099-CIV-JLK (S.D.Fla. Nov. 26, 1975). Enactment of Section
635.091 Effective October 1, 1983, however, section
635.091 was added to Chapter 635 of the Florida Statutes, providing as follows: The following provisions of the Florida Insurance Code apply to mortgage guaranty insurers; chapter 624; chapter 625; parts I, II, VIII, and X of chapter 626; s.
627.915; chapter 628; and chapter 631. Section
635.091 plainly purports to set forth those parts of the Insurance Code applicable to mortgage guaranty insurers....
...Numerica Financial Services, Inc.,
835 F.2d 1354 (11th Cir.1988), the Eleventh Circuit held that section
627.409 does not apply to mortgage guaranty insurance contracts entered into after October 1, 1983, because section
627.409 had not been expressly incorporated into section
635.091....
...Eleventh Circuit’s holding in Numérica. Under those circumstances, Verex would be required to bear the loss associated with the material misrepresentations. In this case, however, the certificates of insurance were issued before the enactment of section
635.091 on October 1, 1983. Whether section
627.409 applied to mortgage guaranty insurance before October 1, 1983 has not been directly addressed subsequent to the decision in Numérica and the enactment of section
635.091. Thus, the issue facing this Court is one of first impression: Did the Florida legislature enact section
635.091 to clarify that section 627.-409 does not govern mortgage guaranty insurance law, or was section
635.091 enacted to impliedly repeal the application of section
627.409 to mortgage guaranty insurance? Application of Section
627.409 In this regard, Numérica does not offer much guidance. Specifically, the Eleventh Circuit left open the question of whether section
627.409 ever applied to Mortgage Guaranty Insurance contracts prior to the enactment of section
635.091 on October 1, 1983....
...clarify that many other parts of the Insurance Code, including Section
627.409, do not govern mortgage guaranty insurance law ... Second, even if the legislature had originally intended Sec *407 tion
627.409 to apply to mortgage guaranty insurance, Section
635.091 changes this....
...Under the rule of “expressio unius est exclusio alteri-us,” therefore, mortgage guaranty insurance would appear to be covered by Chapter 627, and hence section
627.409. Yet, this construction conflicts with the Numér-ica court’s holding that section
627.409 does not apply to mortgage guaranty insurance because of section
635.091. Nonetheless, we agree with the decisions of our sister courts in Empire Home Loans and United Guarantee and hold that section
627.409 applied to mortgage guaranty insurance prior to the enactment of section
635.091. This holding is supported by several factors: First, section
627.401 did not expressly include mortgage guaranty insurance among those types of insurance not covered by section
627.409 prior to the enactment of section
635.091. Second, the enactment of section
635.091 incorporating other provisions of the Insurance Code into Chapter 635 illustrates that Chapter 635 was not intended to be a comprehensive and all-inclusive declaration of the rights of mortgage guaranty insurers. In so deciding, we necessarily hold that the enactment of section
635.091 constituted an implied repeal of section
627.409 as it applies to mortgage guaranty insurance....
CopyPublished | Court of Appeals for the Eleventh Circuit
...Section
627.409 is part of the Florida Insurance Code. The general provisions of the Florida Insurance Code, however, do not govern mortgage guaranty insurance. Mortgage guaranty insurance is instead regulated by Chapter 635 of the Florida statutes. Fla.Stat. §
635.091 (1985) (“Section
635.091”) provides that certain other parts of the Insurance Code apply to Chapter 635....
...To the extent that the legislature wished to incorporate provisions of the Code into Chapter 635, it expressly did so by statute. Because Section
627.409 is not among the provisions incorporated, it is not applicable to mortgage guaranty insurance. HGIC’S ARGUMENTS 1. The Plain Meaning of Section
635.091 HGIC agrees with Numérica that the plain meaning of Section
635.091 should govern this dispute. HGIC, however, disagrees on what the plain meaning of the statute is. The statute purports to set forth those parts of the Insurance Code applicable to mortgage guaranty insurers. Fla.Stat. §
635.091 (1985). This, HGIC argues, is very different from stating that those sections govern mortgage guaranty insurance. We agree with HGIC that Section
635.091 attempts to regulate mortgage guaranty insurers. However, the meaning of “insurers” under the statute is broad. Section
627.409, if applicable, would have been named in Section
635.091. Section
635.091 selectively incorporates various portions of the Insurance Code....
...Implied Repeal Next, HGIC asserts that in Florida there is a presumption against implied repeal of a statute, and that the district court ignored that presumption. We disagree. First, it is unclear that Section
627.409 ever applied to mortgage guaranty insurance. Prior to the enactment of Section
635.091, only one court had relied on Section
627.409 to hold that a mortgage guaranty insurance contract was void....
...ode partly in order to clarify that many other parts of the Insurance Code, including Section
627.409, do not govern mortgage guaranty insurance law. If the legislature never intended for Section
627.409 to apply to mortgage guaranty insurance, then Section
635.091 did not constitute a repeal of Section
627.409 as it applied to mortgage guaranty insurance....
...See State ex rel. Shevin v. Indico Corp.,
319 So.2d 173, 175 (Fla. DCA 1975), cert. dismissed,
339 So.2d 1169 (Fla.1976). Any reading of Section
627.409 that applies it to mortgage guaranty insurance is clearly inconsistent with the more recently enacted Section
635.091. To the extent that Section
627.409 may have applied to mortgage guaranty insurance, then, we find that it has been repealed by Section
635.091....
...To the extent that mortgage guaranty insurance is like casualty or surety insurance and should be treated as such, sections of Chapter 635 expressly mention this fact. Many provisions of the Insurance Code do apply to Chapter 635, and regulate the business fairly thoroughly. In addition to those provisions incorporated under Section 635.091, Fla.Stat....
...As a result, only HGIC, Numérica, and Berkeley are still parties to this action. . For the purposes of this interlocutory appeal alone, the materiality of the misrepresentations is not at issue. . This assumption was not completely unfounded. Prior to the enactment of Section
635.091, one district court judge had applied Section
627.409 to mortgage guaranty insurance....
...75-1099-Civ-JLK (S.D.Fla. Nov. 26, 1975). The court in United Guarantee Residential Insurance Corp. of North Carolina v. American Pioneer Savings Bank,
655 F.Supp. 165 (S.D.Fla.1987), also applied the statute to a mortgage guarantee insurance contract that existed before Section
635.091’s enactment. The court in that case, however, implied that Section
635.091 would "repeal" Section
627.409 in this area of the law in the future. See id. at 168 n. 7. The issue of the applicability of Section
627.409 has not been directly addressed since the enactment of Section
635.091. .Section
635.091 reads: ‘The following provisions of the Florida Insurance Code apply to mortgage guaranty insurers: Chapter 624; Chapter 625; parts I, II, VIII, and X of Chapter 626; §
627.915; Chapter 628; and Chapter 631.” Fla.Stat. §
635.091 (1985)....
