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Vesta Fire Ins. v. State of Florida , 141 F.3d 1427 ( 1998 )


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  •                                                                                PUBLISH
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    -------------------------------------------
    Nos. 96-3657 & 97-2041
    --------------------------------------------
    D. C. Docket No. 95-40138-WS
    VESTA FIRE INSURANCE CORPORATION, VESTA
    INSURANCE CORP., SHEFFIELD INSURANCE
    CORPORATION, an Alabama Corporation,
    Plaintiffs-Appellants,
    versus
    STATE OF FLORIDA, TOM GALLAGHER, in his
    capacity as Insurance Commissioner, STATE
    BOARD OF ADMINISTRATION, WILLIAM ASH, JR., in
    his capacity as Executive Director,
    Defendants-Appellees.
    ----------------------------------------------------------------
    Appeals from the United States District Court
    for the Northern District of Florida
    ----------------------------------------------------------------
    (May 22 , 1998)
    Before EDMONDSON and BIRCH, Circuit Judges, and FAY, Senior Circuit Judge.
    EDMONDSON, Circuit Judge:
    Plaintiffs appeal the district court’s
    grant of summary judgment in favor of
    Defendants. In evaluating cross-motions
    for summary judgment, the district court
    decided that no genuine issues of material
    fact existed and that judgment could be
    granted to Defendants as a matter of law
    on Plaintiffs’ claims that recent Florida
    insurance      legislation      violated   the   Due
    Process, Taking, and Contract Clauses of the
    United States Constitution.           Because we
    2
    conclude that the district court erred in
    granting          summary           judgment          about
    whether a regulatory taking occurred, we
    vacate the grant of summary judgment
    on that issue and remand for further
    proceedings consistent with this opinion.
    1
    We affirm on all other issues.
    Background
    1
    Plaintiffs in this case are insurance companies subject to
    the Florida statutes. Defendants include the state agencies
    responsible for administering the insurance regulations found
    in the statutes.
    3
    After Hurricane Andrew hit Florida in
    1992, insurance companies began to lessen
    their potential exposure to policies likely
    to result in hurricane damage liability:
    residential line policies in Florida.      To
    prevent the total withdrawal of insurance
    companies        and       the   subsequent
    unavailability of insurance if companies
    left   the   Florida   market,   the   Florida
    legislature passed several statutes.
    4
    The    first   of   these   statutes    was    a
    “Moratorium Statute,” which prohibited the
    nonrenewal         and       cancellation        of
    residential    line    insurance     policies   for
    reasons related to the risk of hurricane
    damage.    See 1993 Fla. Laws ch. 93-401 § 1.    The
    Moratorium        Statute      was    passed     as
    temporary legislation.
    The Florida legislature then passed the
    “Moratorium        Phaseout    Statute,”    which
    allowed     limited      cancellation           and
    5
    nonrenewal of residential policies. See Fla.
    2
    Stat. § 627.7013;           see also 1993 Fla. Laws ch.
    93-410 § 19; 1993 Fla. Laws ch. 93-411 § 1.           The
    Moratorium          Phaseout         Statute   provided
    that, in a twelve-month period, no insurer
    could cancel or nonrenew more than 5% of
    2
    When the summary judgment motions
    were      argued        in     the    district      court,
    Defendants         said      that    the   moratorium
    would     end      in       November        1996.     The
    Moratorium Phaseout and related statutes
    have since been extended and are not
    scheduled to end until 1999. See 1996 Fla. Laws
    ch. 96-194 § 13.   Whether          future extensions
    might be made is unknown.
    6
    its residential policies in Florida or more
    than 10% of its residential policies in a
    single   Florida       county.       See   
    Fla. Stat. § 627.7013
    .             This    phaseout      plan     was
    interpreted by Department of Insurance
    (DOI)    rules   --    despite   a   Florida      statute
    permitting        the        total   withdrawal           of
    insurance companies upon 45- days notice,
    see 
    Fla. Stat. § 627.4133
    (2) -- as generally
    prohibiting an insurer’s total withdrawal
    7
    from       doing       business        in     the    State   of
    3
    Florida.
    In       addition,     legislation was passed
    requiring             insurers         to     pay       annual
    premiums              to    the       Florida       Hurricane
    Catastrophe Fund. This fund is intended to
    provide          reinsurance                to      insurance
    3
    The DOI reasoned that the other, more
    general withdrawal statute would continue
    to apply to other kinds of insurance -- car,
    fire,   life     --   and    that       the      new,   specific
    Moratorium Phaseout Statute would apply
    only    to      companies             issuing      residential
    home insurance policies.
    8
    companies doing business in Florida.            The
    reinsurance       provides      protection       to
    companies which, following a hurricane,
    are unable to pay fully on their policies.
    Plaintiffs wish to withdraw entirely
    from the insurance industry in Florida
    but have been prohibited from doing so by
    4
    the Moratorium Phaseout Statute.               This
    Although
    4
    Plaintiffs     challenge     the
    constitutionality of both the Moratorium
    Phaseout   and     the       Catastrophe       Fund
    legislation, only the Moratorium Phaseout
    Statute     directly         implicates        the
    Constitution. The required contribution to
    9
    prohibition,   Plaintiffs        argue,   violates
    several provisions of the United States
    Constitution: (1) the Taking Clause of the
    Fifth Amendment; (2) the Contract Clause;
    and (3) Plaintiffs’ Substantive Due Process
    the fund, absent the Moratorium Phaseout
    Statute, is a constitutional exercise of the
    State of Florida’s police power.          See, e.g.,
    Meriden Trust & Safe Deposit Co. v. FDIC, 
    62 F.3d 449
    , 454-55 (2d Cir. 1995).          Thus, the
    constitutionality    of     the     Moratorium
    Phaseout   Statute   is    the    focus   of   this
    opinion.
    10
    5
    rights under the Fourteenth Amendment.
    5
    Plaintiffs claim that their Substantive
    Due Process rights were violated. Plaintiffs’
    argument focuses on the right to freedom
    of    association,   but        this   case   does    not
    involve infringement of that right. Also,
    because      the    regulation          about        which
    Plaintiffs     complain          is    economic,       the
    legislation is presumed valid unless no
    rational basis exists for its enactment.
    See Usery v. Turner Elkhorn Mining Co., 
    96 S.Ct. 2882
    , 2892 (1976).               We cannot say
    Florida lacked a rational basis for passing
    this legislation.     Plaintiffs’ Substantive
    Due Process claim is without merit, and we
    do not discuss further that claim.
    Also without merit is Plaintiffs’ claim
    that the district court erred by ruling on
    the motions for summary judgment before
    ruling on Plaintiffs’ motion to compel
    discovery.    We,    therefore,          affirm        the
    11
    Plaintiffs     filed    complaints      alleging
    6
    these    constitutional         violations.       Both
    Plaintiffs   and    Defendants         moved       for
    summary judgment.              Plaintiffs, however,
    did not move for summary judgment on
    the issue of regulatory taking.           Instead,
    Plaintiffs argued that summary judgment
    was precluded because genuine issues of
    district court’s decision on these issues.
    6
    Two cases by insurance companies
    against the Defendants were consolidated
    in this appeal.
    12
    material fact existed on that claim.    The
    district court granted summary judgment
    in favor of Defendants on all claims.
    Discussion
    The district court’s grant of summary
    judgment is reviewed by this court de novo.
    See Real Estate Financing v. Resolution
    Trust Corp., 
    950 F.2d 1540
    , 1543 (11th Cir.
    1992).   Summary judgment is appropriate
    13
    only when “there is no genuine issue as to
    any material fact and . . . the moving
    party      is   entitled   to   a    judgment   as   a
    matter of law.”         Fed.R.Civ.P. 56(c); see also
    Hale v. Tallapoosa County, 
    50 F.3d 1579
    , 1581
    (11th Cir. 1995).
    I.   The Taking Clause
    The    Taking      Clause       of   the   Fifth
    Amendment           states,     in   relevant   part,
    14
    “nor shall private property be taken for
    public use, without just compensation.” U.S.
    Const.   amend.    V;   see    also   Penn    Cent.
    Transp. Co. v. New York City, 
    98 S.Ct. 2646
    ,
    2658     (1978)     (applying         the     Fifth
    Amendment     to    the      States   through   the
    Fourteenth   Amendment).               “The   Fifth
    Amendment’s       guarantee       that      private
    property shall not be taken for a public use
    without just compensation was designed to
    bar [the] Government from forcing some
    15
    people alone to bear public burdens which,
    in all fairness and justice, should be borne
    by the public as a whole.”     Armstrong v.
    United States, 
    80 S.Ct. 1563
    , 1569 (1960).
    Plaintiffs allege substantial financial
    losses as a result of the prohibition of
    withdrawal from Florida, coupled with the
    forced contributions to the Catastrophe
    Fund.   This   statutory    scheme,   Plaintiffs
    argue, precludes them from allocating their
    companies’ resources as they see fit and
    16
    forces them to suffer net economic losses
    in       the   Florida    market,          resulting    in   a
    taking of their “property” without just
    compensation in violation of the Fifth
    Amendment                to        the     United      States
    7
    Constitution.
    Plaintiffs argued an additional issue:
    7
    that the district court erred because it
    treated        Plaintiffs’          taking      challenge    as
    “facial”       instead        of    as    an    “as   applied”
    constitutional challenge.                   We believe the
    district        court     properly           addressed      the
    challenge in this case as an “as applied”
    challenge.        Plaintiffs             now,   and   in    the
    district        court,        challenged        the    Florida
    statutes only as applied to Plaintiffs. Thus,
    17
    A.   Per Se Takings
    Whether      government         conduct,      in
    relation   to   private      property,   works   a
    taking involves the courts in an ad hoc,
    factual inquiry.   See Penn Central, 98 S.Ct.
    we do not consider the statutory scheme’s
    constitutionality on its face.       We discuss
    (as     urged      by        Plaintiffs)      the
    constitutionality of the statutes only “as
    applied” to Plaintiffs.       Compare Agins v.
    City of Tiburon, 
    100 S.Ct. 2138
    , 2141 (1980)
    (facial challenge), with Penn Central, 
    98 S.Ct. 2646
    , 2661-62 (as applied challenge).
    18
    at   2659.     But,    certain     invasions   of
    private     property    are    deemed   “takings”
    without regard to the state’s interest in
    possessing or otherwise using the property:
    per se takings. See New Port Largo, Inc. v.
    Monroe County, 
    95 F.3d 1084
    , 1089 (11th Cir.
    1996) (“In addition to physical invasions of
    property,    the   Supreme      Court   has   also
    accorded ‘categorical [per se] treatment,’
    invariably    requiring       compensation,    to
    cases     ‘where      regulation     denies    all
    19
    economically beneficial or productive use
    of    land.’”)    (emphasis        added)     (citation
    omitted).
    Plaintiffs     argue        that   the    statutes
    establishing the Moratorium Phaseout and
    the Catastrophe Fund are per se takings
    because of the compulsory nature of the
    government         act:    the    statutes    make     it
    mandatory for all insurance companies
    currently        doing    business      in   Florida   to
    remain in that market and contribute to
    20
    the fund.     But, the mandatory nature of
    the government’s act does not place these
    statutes in the per se takings category:
    neither a physical invasion nor a denial
    of all beneficial use of “property” has been
    shown.      As     the    district       court   properly
    pointed     out:    “[t]he       compelled    insurance
    contracts     still      belong     to   Plaintiffs;    the
    insureds     must        still    pay     Plaintiffs    all
    required    premiums;            Plaintiffs      can   still
    cancel      or      nonrenew              policies     for
    21
    [nonhurricane      related    reasons];     [and]
    Plaintiffs   can    still    apply   for    rate
    increases . . . .” District Court Order at 20.
    Plaintiffs also argue that these statutes
    effect a government takeover of private
    insurance companies, resulting in per se
    takings.     But   the   cases   relied    on   by
    Plaintiffs -- United States v. Pewee Coal Co.,
    
    71 S.Ct. 670
     (1951), and United States v.
    United Mine Workers, 
    67 S.Ct. 677
     (1947) --
    22
    are not comparable to this case. In Pewee
    Coal    and    United       Mine    Workers,    the
    government took total, direct control of
    private businesses.          This case does not
    present       that   kind    of    occupation   or
    takeover, and it does not present a per se
    taking.
    B.   Regulatory Takings
    23
    Plaintiffs also allege that a regulatory
    (non per se) taking is effected by the
    8
    statutes.             The    current      standard         for
    evaluating            such    claims      is    found       in
    Connolly         v.   Pension      Benefit       Guaranty
    Corp., 
    106 S.Ct. 1018
     (1986).         In Connolly, the
    Supreme Court recognized three factors
    8
    At the outset, we recognize that insurance contracts can be
    property subject to an unconstitutional taking under the Fifth
    Amendment. See Lynch v. United States, 
    54 S.Ct. 840
    , 843
    (1934) (“Valid contracts are property . . . .”); see also
    Ruckelshaus v. Monsanto Co., 
    104 S.Ct. 2862
    , 2873 (1984). “If
    regulation goes too far it will be recognized as a taking.”
    Pennsylvania Coal Co. v. Mahon, 
    43 S.Ct. 158
    , 160 (1922). But,
    “that legislation disregards or destroys existing contractual
    rights [like the right to cancel an insurance contract] does not
    always transform the regulation into an illegal taking.”
    Connolly v. Pension Benefit Guar. Corp., 
    106 S.Ct. 1018
    , 1025
    (1986).
    24
    that should be considered to identify a
    regulatory taking: (1) the economic impact
    of the challenged rule, regulation, or statute
    on the plaintiff; (2) the extent to which
    the     regulation        interferes        with
    investment-backed expectations; and (3)
    the nature of the challenged action. See 
    id. at 1026
     (citations omitted).         Plaintiffs
    contend, and we agree, that the district
    court   failed   to   consider   properly   these
    factors    and    that    genuine    issues   of
    25
    material fact exist to preclude summary
    judgment on this claim.
    1.   Economic Impact on Plaintiffs
    Plaintiffs point to their economic loss
    in         the   Florida     market        and   the
    approximately $1 million premium paid to
    the        Catastrophe     Fund   as   a   negative
    economic impact.            Plaintiffs also argue
    26
    that   the     nature       of     the     Moratorium
    Phaseout     Statute       --    the   potential   for
    another extension -- requires them to stay
    in     the     Florida          insurance      market
    indefinitely,        creating          a    substantial
    economic impact. But Defendants say that
    the    possibility         for     rate      increases
    counteracts          the        negative      economic
    impact.      Plaintiffs’ applications for rate
    increases, however, have been denied.               We
    believe      that,    when         considering      the
    27
    economic    impact    on     Plaintiffs,    the
    potential for future extensions of the
    Moratorium        Phaseout       cannot      be
    determined; and the potential for future
    rate increases is no answer to Plaintiffs’
    ongoing    economic       loss   when      rate
    increases have been applied for and have
    been denied.
    The district court should have considered
    what   economic   impact     Plaintiffs    have
    suffered and will suffer as a result of the
    28
    challenged statutes.    The parties dispute
    exactly   what   return     Plaintiffs   have
    enjoyed in the Florida market since the
    moratorium and whether that return is
    reasonable.   Defendants, and the district
    court in its decision, relied heavily on the
    fact that the moratorium would end in
    1996. But now, in 1998, the moratorium still
    exists and is scheduled to exist until June
    1999.   Thus, the extent of the economic
    impact on Plaintiffs remains a material
    29
    fact that must be determined based upon
    9
    an expiration of the moratorium in 1999.
    2.   Investment-Backed Expectations
    Plaintiffs         also        allege      that        the
    limitations on their withdrawal from the
    9
    The extension of the moratorium statutes into 1999 occurred
    after Plaintiffs filed their complaint. Thus we expect Plaintiffs
    will be permitted to file supplemental pleadings, which would
    include the economic effect of the moratorium statutes due to
    the latest extension. See Fed.R.Civ.P. 15(d) (providing for the
    filing of supplemental briefs, upon motion of a party, “setting
    forth transactions or occurrences or events which have
    happened since the date of the pleading sought to be
    supplemented”).
    30
    Florida     market    interfere       with     their
    investment-backed        expectations.           The
    district court did not address this factor.
    In general, “[t]hose who do business in
    the regulated field [of insurance] cannot
    object if the legislative scheme is buttressed
    by subsequent amendments to achieve the
    legislative end.” Connolly, 
    106 S.Ct. at 1027
    (internal      quotations       and     citations
    omitted).     This   case,   however,   does    not
    present the typical situation of simple
    31
    regulation       as   a   condition     of   doing
    business: the statutes require the doing of
    business.
    The Supreme Court has written these
    words about the constitutionality of a
    taking:     “A    different      case   would     be
    presented were the statute, on its face or
    as applied, to compel a landowner over
    objection    to   rent     his   property    or   to
    refrain in perpetuity from terminating
    a tenancy.”       Yee v. City of Escondido, 112
    
    32 S.Ct. 1522
    , 1529 (1992); see also Lewis v.
    Safeco Ins. Co. of America, 
    414 N.Y.S.2d 823
    ,    861   (1978)   (“[T]his     law    expressly
    requires that . . . insurance companies, like
    the    defendants,         renew        automobile
    insurance      policies    and,     accordingly,   it
    warrants careful review.”). This case may
    be    that    “different       case”:     insurance
    companies must refrain, potentially in
    perpetuity, from terminating contracts.
    “While [a state’s] police power may limit
    33
    and restrict the uses to which an owner
    may put his property, it may not compel
    him to use such property for a particular
    purpose if he prefers to abandon such a use
    thereof.” Department of Pub. Works v. City
    of San Diego, 
    10 P.2d 102
    , 105 (Cal. Ct. App.
    1932).
    Interference with investment-backed
    expectations occurs when an inadequate
    history of similar government regulation
    exists:   where the earlier regulation does
    34
    not   provide    companies      with   sufficient
    notice that they may be subject to the new
    or additional regulation. See Connolly, 
    106 S.Ct. at 1027
    .    Plaintiffs argue that the
    moratorium       statutes       interfere      with
    reasonable          investment-backed
    expectations.      Plaintiffs     contend      that
    whatever regulation Plaintiffs may have
    anticipated when they entered the Florida
    market   they    could   not    anticipate     that
    withdrawal   from        that   market   --   should
    35
    additional     regulation              become     too
    burdensome    --   would    be    prohibited.      The
    district court, however, did not consider
    whether the regulation at issue should have
    been anticipated by Plaintiffs, particularly
    the    Moratorium    Phaseout          Statute   which
    prohibits Plaintiffs’ total withdrawal from
    doing business in Florida.
    Interference   with        the   investment-
    backed   expectations      must        be   considered
    with the other factors: the government’s
    36
    interest      and    the   economic      impact    on
    Plaintiffs.      Genuine issues of material
    fact exist about what investment-backed
    expectations        Plaintiffs    had    when     they
    entered    the      Florida     market   and    what
    impact the moratorium statutes have had
    on Plaintiffs’ expectations.          So, summary
    judgment was inappropriate.
    3.   Nature of the Government Action
    37
    In addition, Plaintiffs argue that the
    nature of the government acts supports
    the takings claim. Plaintiffs contend that
    the compulsory nature of the legislation
    alone     results   in    a   taking;    but   all
    government regulation is compulsory in
    nature.     “[I]t cannot be said that the
    Taking     Clause   is    violated      whenever
    legislation requires one person to use his
    or her assets for the benefit of another.”
    Connolly, 
    106 S.Ct. at 1025
    .    But the nature
    38
    of   the   state’s     interest       is   critical   in
    determining          whether      a        taking     has
    occurred.    See 
    id.
          When important public
    interests are served, a taking is less likely
    to have occurred. See Keystone Bituminous
    Coal Ass’n v. DeBenedictis, 
    107 S.Ct. 1232
    ,
    1242-43 (1987).
    No doubt can exist that the general
    regulation    of     insurance        is    within    the
    State’s police powers.          See 
    15 U.S.C. §§ 1012
    (“The   business     of   insurance,        and   every
    39
    person engaged therein, shall be subject to
    the laws of the several States which relate
    to   the   regulation     or    taxation      of   such
    business.”).      After        Hurricane      Andrew,
    several     insurance          companies      became
    insolvent,      unable   to     pay   their   policies.
    Other      companies      sought      to    withdraw
    altogether      from     the    Florida    insurance
    market.        This withdrawal could have had
    serious negative effects on Florida’s real
    estate market and on the economy of the
    40
    State. The moratorium was intended as a
    stabilizing force in the market and was
    within the State of Florida’s police power.
    The government interest in this case was
    the   public   welfare     of     the   residents   of
    Florida. But the nature of the government
    interest and its importance, given all the
    circumstances, as well as the extent of the
    regulations’ harsh impact on Plaintiffs’
    interests      must   be        determined   by     the
    district court.
    41
    The district court erroneously granted
    Defendants’        motion     for   summary
    judgment      without       considering    the
    financial rate of return for Plaintiffs
    and the impact on Plaintiffs’ investment-
    backed expectations.    “These ‘ad hoc, factual
    inquiries’ must be conducted with respect
    to specific property, and the particular
    estimates     of    economic    impact    and
    ultimate valuation relevant in the unique
    circumstances.”     Hodel v. Virginia Surface
    42
    Mining and Reclamation Ass’n, Inc., 
    101 S.Ct. 2352
    , 2370 (1981).       Without knowing
    the economic impact of the legislation and
    the Plaintiffs’ reasonable expectations, the
    necessary study of competing interests
    cannot    be   accomplished        and    summary
    judgment       cannot     be   granted.            See
    generally   Penn   Central,        
    98 S.Ct. 2646
    ,
    2659-61     (discussing      the    variety         of
    interests involved and to be considered in
    a taking case).
    43
    II.         Contract Clause
    The Contract Clause of the United States
    Constitution provides that “[n]o State shall
    .   .   .   pass   any   .   .   .   Law   impairing      the
    Obligation of Contracts.”                  U.S. Const. art. 1,
    § 10. “Although the language of the Contract
    Clause is facially absolute, its prohibition
    must be accommodated to the inherent
    police power of the State ‘to safeguard the
    44
    vital interests of its people.’”               Energy
    Reserves Group, Inc. v. Kansas Power and
    Light Co., 
    103 S.Ct. 697
    , 704 (1983) (citation
    omitted).
    Three    factors     are    considered         when
    evaluating    a     claim    that       the   Contract
    Clause has been violated: (1) whether the law
    substantially       impairs         a    contractual
    relationship;     (2)   whether          there    is    a
    significant and legitimate public purpose
    for   the    law;    and      (3)       whether        the
    45
    adjustments of rights and responsibilities
    of the contracting parties are based upon
    reasonable    conditions   and    are   of   an
    appropriate nature.    See 
    id. at 704-05
    .
    Plaintiffs make a sufficient showing
    that the Florida legislation substantially
    impaired     the   contracts     between     the
    insurance companies and their insureds.
    Insurance provides coverage of a specified
    risk for a specified time.     At the end of
    that   time,       insurance      companies
    46
    reevaluate the risk and decide whether they
    wish to remain the insurers of that risk.
    “Total    destruction     of    contractual
    expectations   is   not   necessary   for    a
    finding of substantial impairment.”         
    Id. at 704
    .   Under the Moratorium Phaseout,
    Plaintiffs   are    forced     to   continue
    contractual relationships that otherwise,
    pursuant to the terms of the contracts,
    could be rightfully terminated.
    47
    Assuming a substantial impairment to
    Plaintiffs’    contracts     exists,   the   State
    “must have a significant and legitimate
    public purpose behind the regulation.”          
    Id.
    “[T]he public purpose need not be addressed
    to an emergency or temporary situation.”
    
    Id. at 705
    .       Defendants           have
    demonstrated a legitimate public purpose:
    protection and stabilization of the Florida
    economy,      particularly    the   real     estate
    market.       See generally Allied Structural
    48
    Steel Co. v. Spannaus, 
    98 S.Ct. 2716
     (1978);
    Home Building & Loan Ass’n v. Blaisdell, 
    54 S.Ct. 231
     (1934).
    Once a legitimate purpose is identified,
    we    must    look    to   whether   the   state’s
    adjustments           of    the   rights     and
    responsibilities of the contracting parties
    are based upon reasonable conditions and
    are    of   an      appropriate   nature.     See
    Energy Reserves, 
    103 S.Ct. at 705
    .         “Unless
    the State itself is a contracting party . . .
    49
    courts         properly             defer     to    legislative
    judgment              as     to      the     necessity       and
    reasonableness of a particular measure.”
    
    Id.
     (internal citations and quotations
    omitted).         The State was no party to the
    10
    insurance contracts;                       so based upon the
    Plaintiffs
    10
    argue        that   we   cannot
    consider              the     legislature’s         purported
    purposes for the statutes because the State
    is   a        third-party            beneficiary        to   the
    contracts based upon its control of the
    Catastrophe Fund.                   The law of Florida does
    not support this theory.                     See Thompson v.
    Commercial Union Ins. Co., 
    250 So.2d 259
    ,
    262           (Fla.     1971)        (To     be    third-party
    beneficiary,               “[t]he     clear       intent     and
    50
    legislature’s judgment, the statutes’ impact
    on existing insurance contracts cannot
    be   said     to      be    an      unconstitutional
    impairment.
    Conclusion
    No     factual      disputes   exist   about    the
    Contract Clause, Substantive Due Process, or
    purpose      of    the     contract    [must   be]   to
    directly and substantially benefit the third
    party.”).
    51
    Per Se Taking claims; so summary judgment
    was appropriate for Defendant on those
    claims.     But,   summary       judgment     was
    incorrect     on        Plaintiffs’   claim    of
    regulatory    taking      resulting   from    the
    Florida insurance statutes.
    AFFIRMED        in    part;   VACATED      and
    REMANDED in part.
    52