Johansen v. Confederation Life Ass'n

LUMBARD, Chief Judge: Plaintiffs appeal from a final judgment entered against them on May 7, 1970 in the Southern District of New York after trial before Judge McLean without a jury. The suit was brought initially in the Supreme Court of New York County, but was removed by the defendant insurance company to the federal district court on the ground of diversity of citizenship. Plaintiffs’ complaint has two counts. The first seeks recovery in United States dollars of amounts allegedly payable by defendant upon two $25,000 life insurance policies issued by it in 1937 and 1939 to Thomas Francis Turull y Belling who died in 1961. Turull’s widow, Hor-tense Justiz de Turull, was the beneficiary of one of these policies. Turull’s daughter, Gladys Turull Johansen, was the beneficiary of the other; and because she has since died, her executor claims the $25,000. The second count is asserted by Harry T. Johansen, Jr., the owner of an outstanding insurance policy issued in 1946; he seeks a declaration that the defendant is obligated to accept premium payments from him in United States dollars and to pay the proceeds of the policy upon his death in United States dollars. The life insurance contracts were made while Turull and Jo-hansen lived in Cuba, and the company wants to pay the policies in Cuban pesos. Judge McLean held that the defendant-company’s obligation under these policies is governed by Cuban law and hence that it is to pay plaintiffs in pesos, rather than in United States dollars. Judge McLean’s opinion is reported at 312 F. Supp. 1056 (S.D.N.Y.1970). The action is regarded by the parties, particularly by the defendant, as a test case, since defendant issued many similar policies in Cuba and this is the first case which has been fully tried on the merits. We affirm the district court’s decision. — 177 — I. Defendant is a Canadian life insurance company with its head office in Toronto. It does business not only in Canada and in the United States, but also in twenty-two other countries including Cuba. Since 1909 it has had a branch office in Cuba; and from 1909 to 1959, when Castro took over, it issued policies to residents of Cuba. Its operations in that country have always been subject to Cuban laws and to the supervision of the Cuban government. Turull, who was the insured of the two policies upon which plaintiffs now seek to recover, moved from his birthplace, Brooklyn, New York, to Cuba when he was a young man. He married a Cuban and had a substantial export-import business in Havana. In 1937 and 1939, he took out the two policies in question here with the defendant’s Cuban office, his wife being the beneficiary of the first and his daughter the beneficiary of the second. He moved back to New York only after Castro came into power and died in New York in 1961. Johansen, also a United States citizen born in New York, married Turull’s daughter in New York in 1941 and thereafter went to work for his father-in-law in Cuba. In 1946. he took out a policy with defendant’s Cuban office, and he remained in Cuba until Castro took over. Afterwards, he moved back to New York where he now resides. He seeks a declaration that defendant is obligated to accept premium payments from him in United States dollars, to make policy loans in United States dollars, and to pay proceeds upon his death in United States dollars. Each of the three policies stated that “[a] 11 sums payable or [receivable] under the policy shall be paid at * * * Havana, Republic of Cuba." Further, with respect to currency, each provided that “[a] 11 sums payable or [receivable] under this policy shall be paid in lawful currency of the United States of America." Although the latter provision might seem at first glance to solve the problem of this case, it does not do so because of the effect of the Cuban currency laws throughout the years. From 1914 to 1939, two currencies were legal tender in Cuba, the peso and the United States dollar. Theoretically they were of equal value and creditors could demand payment in whichever currency they chose. By 1939, however, the peso was actually worth less than the dollar. In an effort to bolster the peso, the Cuban government enacted a law in 1939 making the dollar and the peso interchangeable on a one-for-one basis. Each continued to be legal tender, but they could be used interchangeably, and debtors were now given the option as to which currency they wished to use in payment of their debts. Creditors were required to accept pesos in extinguishment of an obligation expressed in dollars and vice versa. Thus, it is evident that when the policies in question here stated that United States currency was to be paid, it was referring to a legal Cuban tender which after 1939 could be paid in either dollars or pesos. In 1951, however, there was a significant change in the Cuban law. The new decree provided that henceforth pesos would be the only legal tender. United States dollars ceased to be legal tender and all obligations had to be expressed and paid in pesos. Obligations previously contracted in dollars had to be discharged in pesos at the rate of one peso for one dollar. Athough a person could still own dollars in Cuba, he could not use them to pay debts. Thus, this Cuban law in effect changed the insurance contracts in questions here from dollar contracts to peso contracts. The 1951 law was widely published in Cuba and defendant notified all its Cuban policyholders that all payments under policies which referred to United States currency would henceforth be payable in pesos. Neither Turull nor Johansen objected to this and both paid their premiums in pesos after 1951 as they were required to do. Indeed, even before 1951 Johansen had paid in pesos, although Turull had paid in dollars. — 178 — In 1959, when Castro took over, a new Cuban law made it a criminal offense to hold dollars and required owners of dollars to turn them in for pesos on a one-for-one basis. Since that time the peso has diminished in value in relation to dollars and today is substantially worthless in terms of dollars. This fact causes the dilemma of the instant case. Although defendant is willing to pay plaintiffs the amounts due them in pesos and in Havana, plaintiffs seek payment of dollars in New York, because pesos are worthless to them here and they are forbidden by United States law to travel to Cuba. Defendant wants to pay in pesos because throughout the years it has invested the insurance proceeds from its Cuban policyholders in Cuban assets precisely in order to meet the obligations in pesos to those policyholders. Now, since it is forbidden by Cuban law to transfer those funds out of Cuba and since pesos are as worthless to it as to plaintiffs in terms of dollars, it has no present use for the funds which it invested in Cuba other than to pay off the Cuban policies. Hence, to require defendant to pay plaintiffs in New York dollars out of its general assets would leave it with worthless reserves of pesos on its hands. II. The first question arising here is one of conflict of laws, i. e., whether the applicable law governing the disposition of this case is Cuban law, New York law, or Canadian law. On that question, both parties agree that in this diversity case, a federal court sitting in New York must apply the New York conflicts rules. Klaxon Co. v. Stentor Electrical Mfg. Co., 313 U.S, 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). They disagree, however, as to what those rules are and as to what the result should be under them. Judge McLean held that a New York court would apply Cuban law “both under traditional theories of conflicts exemplified by Dougherty v. Equitable Life Assurance Society of the United States, 266 N.Y. 71, 193 N.E. 897 (1934), and under the modern ‘center of gravity’ or ‘grouping of contacts’ theory of Auten v. Auten, 308 N.Y. 155, 124 N.E.2d 99 (1954).” 312 F.Supp. at 1063. To support this conclusion, he stated: “The contracts were made in Cuba. According to their terms they were to be performed in Cuba. Substantially all the contacts are Cuban. Turull and Johansen were Cuban residents and domiciliaries. They paid their premiums in Cuba. The policies were enrolled on defendant’s Cuban register. Defendant’s reserves on these policies were maintained in Cuba. The policies were never transferred to New York, as they might have been if the insureds had requested it. * * * Neither Turull nor Johansen had any dealings with defendant in New York. Their dealings with defendant were in Cuba. Their late change of residence, in my opinion, is purely fortuitous and has no importance. * * But for acts which occurred in Cuba, the notarial authentication of the policies necessary under Cuban law, the payment by the insured of the first premium, and the agreements of the insureds to terms more onerous than they had requested, the policies never would have been issued and the contracts sued on here would never have come into being.” 312 F.Supp. at 1063. The defendant agrees, relying especially on the express provision that all payments were to be made in Havana. Plaintiffs disagree. They argue that the theories relied on by Judge McLean, including the “grouping of contacts” approach, have been rejected or at least questioned by the New York courts. For this proposition, they rely on Miller v. Miller, 22 N.Y.2d 12, 15-16, 290 N.Y.S.2d 734, 737, 237 N.E.2d 877, 880 (1968), where the court stated: “the rule which has evolved clearly in our most recent decisions is that the law of the jurisdiction having the greatest interest in the litigation will be applied and that the facts or contacts which obtain significance in defining State interests are — 179 — those which relate to the purpose of the particular law in conflict.” See also Matter of Crichton, 20 N.Y.2d 124, 281 N.Y.S.2d 811, 228 N.E.2d 799 (1967); Intercontinental Planning v. Daystrom, 24 N.Y.2d 372, 300 N.Y.S.2d 817, 248 N.E.2d 576 (1969). According to plaintiffs, New York has a vital interest in determining whether or not its citizens who have fully performed insurance contracts in hard currency will receive hard currency back from the insurance company. On the other hand, they contend, Cuba has no legitimate interest in having its internal currency regulations applied to determine the outcome of this litigation. Plaintiffs argue further that under this “greatest interest” rationale now used by New York courts, the present domicile of the parties seeking to recover is generally decisive. Indeed, in several cases, such domicile seems to have been crucial. See e. g. Miller v. Miller, supra; and Tooker v. Lopez, 24 N.Y.2d 569, 301 N.Y.S.2d 519, 249 N.E.2d 394 (1969). Plaintiffs contend that since they are now domiciled in New York, New York’s interest in ensuring that its domiciliaries receive fair performance on insurance contracts which they have performed is paramount and dictates that New York law should apply so that plaintiffs get paid in the currency bargained for— United States currency. Moreover, looking to the question of the insureds’ domicile at the time of the issuance of the policies, the plaintiffs again disagree with Judge McLean and contend that domicile is not synonymous with residence and that Turull and Jo-hansen, while Cuban residents at the time the contracts were made, always remained domiciled in the United States. Plaintiffs cite cases holding that proof of change of domicile of origin must be clear and convincing. See Matter of Newcomb, 192 N.Y. 238, 84 N.E. 950 (1908); Matter of James, 221 N.Y. 242, 116 N.E. 1010 (1917); Perkins v. Guaranty Trust Co., 274 N.Y. 250, 8 N.E.2d 849 (1937). Here, according to plaintiffs, Turull and Johansen never intended to give up their citizenship, did intend to return to New York upon retirement, and hence remained New York domiciliaries. Finally, plaintiffs argue, Canada also has an important interest in this ease— that of having insurance companies domiciled there perform their contracts according to their express terms. In plaintiffs’ view, the district court’s decision here frustrates that policy. Plaintiffs’ argument is supported by the Supreme Court of Canada’s decision in Imperial Life Assurance Co. of Canada v. Caste-leiro y Colmenares, [1967] Sup.Ct.Rep. 443, holding that a policy issued by a Canadian insurance company to a Cuban national who resided in Cuba prior to the advent of Castro was governed by Canadian law and hence was payable in dollars rather than in pesos. Thus, according to plaintiffs, if Canada’s interest is important enough to have her law apply, the Imperial Life case indicates that defendant here must pay in dollars. We disagree with plaintiffs’ contentions. Their argument that under the “greatest' interest” test the present domicile of the parties seeking to recover is crucial relies on cases which are inap-posite to the instant case. The cases cited by plaintiffs in this regard were either wrongful death actions where New York domiciliaries were killed in out-of-state automobile accidents (e. g. Miller and Tooker) or actions involving property rights (e. g. Matter of Crichton and Perkins). This case, however, is an insurance contract matter; and if domi- • cile is to be determinative in such a case, it seems more logical to look to the domicile of the insureds themselves at the time they entered into the contracts, rather than to the domicile of the plaintiffs at the time of bringing suit. For the rights and obligations of the parties under such contracts are determined by the law of the place where the insureds lived when the contracts were made and can hardly be changed solely because the insureds or the beneficiaries subsequently changed domiciles. Looking to the more relevant question, then, we reject the plaintiffs’ — 180 — argument that Turull and Johansen always remained domiciled in New York. There was enough evidence here to support Judge McLean’s conclusion that the insureds were Cuban domiciliaries at the time of the issuance of the policies. Both had permanent residences in Cuba with all or most of their business and property there. In Matter of Newcomb. 192 N.Y. 238, 250, 84 N.E. 950, 954 (1908), the court declared that “domicile means living in that locality with intent to make it a fixed and permanent home.” It certainly appears that until Castro came into power, Turull and Johansen felt that Cuba was their permanent home, despite their United States citizenship. Indeed, in their applications for the policies, both stated that Cuba was their residence and answered “No” to the question whether they intended to “change domicile or take a journey.” Such statements seem to us to constitute the “clear and convincing evidence” of their intent to be domiciled in Cuba. In addition, the large number of contacts between the insurance contracts and Cuba cannot be ignored. See Bab-cock v. Jackson, 12 N.Y.2d 473, 481-482, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963). Judge McLean found those contacts to be overwhelming and decisive. Moreover, Turull and Johansen did not object to the 1951 notice that payments on the policies would henceforth be made in pesos; and indeed until Castro, they were clearly willing to accept Cuban law as governing those policies. Thus, we hold that under either the “grouping of contacts” test or the test propounded by plaintiffs, Cuban law governs the disposition of this case; and under Cuban law, defendant’s obligation on these policies is to pay in pesos, since the 1951 Cuban law forbade defendant to pay in dollars and changed the contracts in question here from dollar contracts to peso contracts. III. In any event, we feel that this case does not present a conflict-of-laws question because it does not involve a choice among conflicting legal rules. J udge McLean, too, felt that this was the correct analysis. According to him, the real question here is whether a New York court, even under New York law, would give extraterritorial effect to the Cuban law “which manifestly governs these contracts, or whether it would refuse to do so on grounds of New York public policy.” 312 F.Supp. at 1063. Judge McLean found that a New York court would give extraterritorial effect to Cuban law, because to do so would not violate New York public policy. He relied for this conclusion on Dougherty v. Equitable Life Assurance Society of the United States, 266 N.Y. 71, 193 N.E. 897 (1934), and French v. Banco Nacional de Cuba, 23 N.Y.2d 46, 295 N.Y.S.2d 433, 242 N.E.2d 704 (1968), both of which involved the “act of state” doctrine. Of course, the “act of state” doctrine does not apply to this case and hence would not require a New York court to give extraterritorial effect to the Cuban law. That doctrine prevents United States courts from sitting in judgment on acts or decrees of a foreign country dealing with property located within that country. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964). Thus, in Dougherty and French, a decision for the plaintiffs would of necessity have involved the nullification of a decree or regulation of a foreign government. Here, however, a decision for plaintiffs would in no way effect the integrity of any decree or regulation of the Cuban government, since the insurance company can pay in dollars out of its general assets and in New York without violating the 1951 Cuban currency law and without transferring funds out of Cuba in violation of the 1959 Cuban law. See Pan American Life Ins. Co. v. Blanco, 362 F.2d 167, 170 (5th Cir. 1966). Plaintiffs argue that since the “act of state” doctrine does not apply, there is no reason to give the Cuban law effect in New York, when both New York and — 181 — Canada have stronger interests in the outcome of this case than Cuba has. According to plaintiffs, the insurance contracts imposed upon the company a general obligation to pay plaintiffs when the insureds died. The policies, say plaintiffs, did not achieve an in rem status in Cuba, and hence the company has no right to convert its general obligation into a limited one to pay only from the assets which it had elected to invest in Cuba. This is especially true, plaintiffs contend, since the company failed to inform the insureds of the limitation which it now asserts. Thus, in plaintiffs’ view, the defendant must pay its debts out of its general assets, not out of the limited reserves in Cuba. We do not agree. As shown above, Cuban law governed these policies when they were made; that law in 1951 converted the currency of these policies to pesos; and until Castro, Turull and Johansen accepted the applicability of Cuban law and acquiesced in the shift in premiums from dollars to pesos. Neither objected to the 1951 change or to the contractual provision that all payments were to be made in Cuba until after Castro came into power — which in our view was too late. Thus, regardless of the fact that the “act of state” doctrine does not apply here, there is no reason or policy for a New York court not to give effect to the Cuban law, under which defendant’s obligation is to pay in pesos. See Confederation Life Assoc. v. Ugalde, 164 So.2d 1 (Fla.Sup.Ct.) cert. denied, 379 U.S. 915, 85 S.Ct. 263, 13 L.Ed.2d 186 (1964). Plaintiffs’ final argument in this area is that a New York court should not give effect to the Cuban law because the company, as part of its sales pitch to prospective American-citizen insureds living in Cuba, including plaintiffs, represented that these policies, if taken out in United States dollars, would be honored by the company in the United States if the buyer returned there. Indeed, in a few instances prior to Castro, the company did transfer policies from Cuba to New York at the insured’s request. Plaintiffs now ask us to require defendant to honor that representation here. But estoppel cuts both ways in the circumstances in this case. Judge McLean dismissed plaintiffs’ contention on the ground that in such instances where the company did transfer the policy to New York, the company also transferred to New York the reserve in Cuba covering its obligation on the policy, and now because of Castro no such transfer is possible since it is illegal in Cuba to transfer funds abroad. Plaintiffs respond to this by showing that no law, Cuban or otherwise, required that in a transfer of policies from Cuba to New York, the reserve covering the obligation also be transferred. It was merely the company's policy to do so; and according to plaintiffs, the fact that it cannot do so today does not negate its promise to pay in New York at the insured’s request. Nevertheless, plaintiffs never requested that the policies be transferred to New York during the time when it was feasible for the company to do so. They did not make their request until after Castro took over, and they knew at that time that defendant could not transfer funds out of Cuba. It seems to us, then, that plaintiffs are now estopped from requiring that their request be fulfilled. Therefore, we conclude that defendant’s alleged promise at the time of making these contracts is no reason for a New York court not to give extraterritorial effect to the Cuban law. IV. Looking finally to the “equities” of the situation, they seem to us to tip the scale slightly in the defendant’s favor. On the one hand, plaintiffs would have no use for pesos; and, according to them, they are entitled to payment on their policies in valuable currency since they paid their premiums in hard valuable currency. On the other hand, defendant accumulated reserves of pesos and invested in Cuba in order to meet its obligations on the Cuban policies, and those pesos are now worthless to it except to pay off the Cuban policies. Judge McLean found defendant’s equities strong — 182 — er, especially since defendant is a mutual company and all its policyholders may be affected if it must pay policies such as these in dollars. We agree. Plaintiffs rely on the fact that the company was not compelled by any law to invest in Cuban assets in order to meet its obligations on the Cuban policies, but rather did so voluntarily and as part of its general policy; and they argue that therefore the company should now have to meet its obligations in currency valuable to plaintiffs. It seems to us, however, that the company’s policy of investing in the country where the insured lived was a reasonable and almost necessary business decision, especially where, as here, the policy expressly provided for payment in that country. Thus, the company would not be unjustly enriched by being allowed to pay in pesos, whereas requiring it to pay in dollars would in effect be compelling it to pay twice and thereby put a burden on its general uncommitted reserves. Affirmed.