
    Aben E. JOHNSON, Appellant, v. HOME-OWNERS INSURANCE COMPANY, Appellee.
    No. 4D04-491.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 2005.
    Order Denying Rehearing and Certifying Question Dec. 14, 2005.
    Stephen A. Marino, Jr. of Ver Ploeg & Lumpkin, P.A., Miami, for appellant.
    Bard D. Rockenbach and Mark Brad-field of Sellars, Marion & Bachi, P.A., West Palm Beach, for appellee.
   FARMER, J.

The trial court found that it lacked jurisdiction over a foreign insurer, who had issued a policy insuring property having a permanent situs outside Florida against loss or damage, and dismissed the insurer from the action. The property owner argues that the court had jurisdiction under Florida’s “unauthorized insurers process law” because the policy was sent to him at his home in Florida. See §§ 626.904-626.912, Fla. Stat. (2005). We affirm.

These are the pertinent facts. The Michigan property owner has a residence in Palm Beach. Meanwhile he is constructing a house on real property he owns in Michigan. Acting through a Michigan insurance broker, he procured a policy of property insurance for the Michigan property. The property insurance policy also has a special provision for personal comprehensive coverage for the owner, including coverage for claims of slander. The insurer sent the completed policy to him in Florida through the Michigan broker. He made payment to the broker in' Michigan from his Florida residence.

The owner was sued in Florida for slander. He demanded that the Michigan insurer provide coverage and a defense under the Michigan policy. The insurer declined, so the owner filed suit in Florida against the Michigan insurer for policy benefits. The Michigan insurer objected to personal jurisdiction, showing that it is not licensed to sell insurance in Florida. It has no offices or agents here. It does not advertise to sell insurance in Florida.

The owner argued that Florida has jurisdiction over the Michigan insurer under the unauthorized insurers process law. Section 626.906(1) of that statute creates Florida jurisdiction over an unlicensed foreign insurer because of “the issuance or delivery of contracts of insurance to residents of this state.... ” § 626.906(1), Fla. Stat. (2005). The owner argued that the Michigan insurer issued and delivered its policy of property insurance for the Michigan property to owner at his Florida address, and therefore it is subject to Florida jurisdiction under this provision. We disagree.

Established principles of appellate review provide that a trial court’s decision will be upheld on appeal if any legal theory supports it. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979). Although the trial judge’s order of dismissal does not state the ground on which he granted the motion to dismiss, we think the trial judge’s decision should be sustained on the following basis.

Section 626.912(2) provides that the unauthorized insurers process law does not apply to suits arising out of any contract of insurance for “liability arising out of the ownership, operation or maintenance of any property having a permanent situs outside this state.” The owner’s suit seeks coverage under a contract of insurance against liability arising out of the ownership of property permanently located in Michigan. Like most property insurance, this policy also includes a provision for personal protection for the owner — in this instance, slander — that is incidental to the principal coverage of property insurance. We do not think that fact makes this foreign property insurance any less a property insurance policy. In our view, section 626.912(2) takes this action out of the foreign insurers process law.

On appeal the owner newly advances a theory of jurisdiction under the general Florida long arm statute. See § 48.193(l)(g), Fla. Stat. (2005) (“breaching a contract by failing to perform acts required by the contract to be performed in this state”). But as the Michigan insurer points out, this argument was never advanced in the trial court and is being raised for the first time here. Accordingly it has been waived for appellate review.

Affirmed.

MAY, J., concurs.

KLEIN, J., dissents with opinion.

KLEIN, J.,

dissenting.

Section 626.905, Florida Statutes (2005), titled “Unauthorized Insurers Process Law,” provides that it is the legislative intent that in certain circumstances insurers who are not authorized to do business in Florida are subject to service of process and jurisdiction of the Florida courts where policies are issued or delivered in this state. This policy was delivered to the insured, who is a resident of Florida, in Florida.

The majority concludes that this law does not apply because section 626.912(3) excludes insurers for “liability arising out of the ownership, operation or maintenance of any property having a permanent situs outside this state.” The majority reasons that because this homeowner’s policy covers a Michigan residence, it falls within that exclusion. Although the majority recognizes that the policy also covers personal tort liability, it brushes off that fact as incidental. I cannot agree with that reasoning.

The complaint alleged that the insured is the defendant in a slander lawsuit filed in Florida and that the insurer has breached its duty under the policy to defend the slander suit. The insurer, which has not argued the statutory exclusion relied on by the majority, grounded its motion to dismiss on the argument that it would violate federal due process to permit this suit to proceed here. The trial court granted the motion for that reason, but did not have the benefit of our subsequent decision in Virginia Farm Bureau Mutual v. Dunford, 877 So.2d 22 (Fla. 4th DCA 2004), holding that allowing an insurer which does not issue policies in Florida to be sued for a bad faith failure to settle a tort claim here does not violate federal due process.

When this insurer issued this policy covering personal liability, it contracted to defend and indemnify the insured for damage suits filed in states other than Michigan. This insurer was well aware when it issued this policy that if it breached its duties under the policy it was foreseeable that it would be haled into court in a jurisdiction where a tort claim had been brought against its insured. Allowing this insurer to be sued here for breaching its duty to defend a slander suit here does not offend due process. Dunford and cases cited. Nor does it come within the exclusion relied on by the majority. I would reverse.

ON MOTION FOR REHEARING AND CERTIFICATION

PER CURIAM.

We deny appellant’s motion for rehearing but certify the following question as one of great public importance:

Is a Michigan insurer, which does not sell insurance in Florida, subject to personal jurisdiction in Florida in a suit by the insured seeking a defense and coverage, where (a) the insured is being sued in Florida for committing slander in Florida and (b) the policy is a homeowner’s policy covering only a Michigan residence but also providing coverage for torts including slander?

FARMER, KLEIN and MAY, JJ., concur.  