11 Fla. L. Weekly Supp. 857a
Insurance — Personal injury protection — Venue — Forum non conveniens — Although Seminole County is proper venue within which to sue insurer, Hillsborough County is more convenient venue and better serves interest of justice where only connection of suit or underlying claim to Seminole County is location of office of plaintiff’s attorney’s office, and Hillsborough County was site of accident, claim adjustment, and provision of medical treatment — Insurer did not waive issue of venue by failing to comply with small claims rule and right to venue language in summons by not raising issue on or before pre-trial conference
NU-BEST WHIPLASH INJURY CENTER, INC., as assignee of SHEILA TUTOR, Plaintiff, vs. PROGRESSIVE AUTO PRO INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 03-SC-005948. June 24, 2004. Carmine M. Bravo, Judge. Counsel: Robert D. Bartels, Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Orlando. David B. Blessing.
ORDER ON DEFENDANT’S MOTION TO CHANGE VENUE
THIS CAUSE, having come before the Honorable Carmine M. Bravo on Friday, June 4, 2004, upon Defendant’s Motion to Change Venue, and the Court having been fully advised in the premises, the Court makes the following findings of fact:
1. The Plaintiff’s Complaint in this matter was served upon the Defendant on January 6, 2004. Per paragraph 4 of the Plaintiff’s Complaint, the Plaintiff alleges that Progressive’s insured was involved in an automobile accident on April 24, 2003, however, the Plaintiff does not identify where the accident occurred.
2. Defendant served its Motion to Change Venue on February 17, 2004, seeking to change venue from Seminole County, Florida, to Hillsborough County, Florida. Defendant served an Affidavit of its adjuster, Jill Beatty, in support of its Motion to Change Venue on May 24, 2004. This affidavit was based upon information and belief and not upon personal knowledge.
3. Per Defendant’s Motion and supporting Affidavit, Defendant stated that the accident underlying the above-styled cause of action occurred in Hillsborough County, Florida.
4. Per Defendant’s Motion and supporting Affidavit, the Defendant stated that the insured, Sheila Tutor, is currently a resident of Hillsborough County, Florida, but was a resident of Pasco County, Florida, at the time of the accident.
5. Per Defendant’s Motion, the insured initially sought treatment from her primary care physician, Dr. Laurie Fulkman, who is located in Hillsborough County, Florida.
6. Per Defendant’s Motion, Dr. Fulkman then referred the insured to Advanced Injury Medical Rehab Center, which is located in Hillsborough County, Florida.
7. Per Defendant’s Motion, Advanced Injury Medical Rehab Center wrote a prescription for the test at issue in its Tampa, Hillsborough County office.
8. The Plaintiff, Nu-Best Whiplash Injury Center, Inc., admitted in its unverified Response to Defendant’s Interrogatories, that it performed the test at issue via a stationary machine affixed permanently to Nu-Best Whiplash Injury Center Mobile Clinic near the referenced doctor’s, Dr. Mane’s, office.
9. The Plaintiff, Nu-Best Whiplash Injury Center, Inc., is located in Palm Harbor, Pinellas County, Florida.
10. On February 25, 2004, Plaintiff served the Affidavit of Dr. John Postlethwaite, the provider of the services at issue, stating, among other things, that he hired the law offices of Brian A. Coury, P.A., located in Seminole County, Florida, as his attorneys, that he travels regularly throughout the state for various business related purposes, that he is available for and does not object to appearing by telephone for any purpose associated with the prosecution of this matter, that he has appeared in Seminole County court for proceedings, and that Seminole County is centrally located and a convenient place for Plaintiff to prosecute the claim. This affidavit is based upon personal knowledge.
11. The first pre-trial conference and court date was January 21, 2004. Defendant served a Motion to Dismiss on January 20, 2004, which motion did not raise an issue of venue. The Florida Rules of Civil Procedure, with the exception of Rule 1.442, were not invoked until February 24, 2004, the date of the second pre-trial conference. Therefore, only the Small Claims Rules were in effect on January 21, 2004. The Defendant did not raise the use of venue on or before January 21, 2004.
II. CONCLUSIONS OF LAW
12. Defendant, Progressive Auto Pro Insurance Company, cited two (2) cases for the Court’s review, State Farm Fire and Casualty Company v. Sosnowski, 836 So. 2d 1099 (Fla. 5th DCA 2003); and E.I. Dupont Day Nemours and Company, et. al v. Fuzzell, 681 So. 2d 1195 (Fla. 2d DCA 1996). Plaintiff cited no case law in opposition to Defendant’s Motion to Change Venue.
13. This Court finds that although Seminole County is a proper venue in which to sue Defendant, the record evidence as found above indicates that there is no connection to Plaintiff’s lawsuit or the underlying claim in Seminole County. Since the accident occurred in Hillsborough County, the claim was adjusted in Hillsborough County (per the Defendant’s Motion), and all of the medical treatment was provided in Hillsborough County, Hillsborough County is a more convenient venue and better serves the interest of justice.
14. There is nothing in this case to connect this cause of action to Seminole County other than the fact that the Plaintiff’s attorney has its office in Seminole County. This Court agrees with the E.I. Dupont court that the location of the Plaintiff’s counsel’s office is not an appropriate factor to consider when determining venue.
15. Based on the foregoing, it is ORDERED AND ADJUDGED as follows:
16. Plaintiff’s ore tenus Motion to Strike or for the Court to not consider the affidavit of the Defendant’s adjuster, Jill Beatty, on the basis that it was not made upon personal knowledge but only upon information and belief, is DENIED.
17. That Defendant did not waive the issue of venue despite failing to comply with Rule 7.060(a), Small Claims Rules, and by failing to comply with the “Right to Venue” language contained in the Court’s “Summons/Notice to Appear for Pretrial Conference” dated December 30, 2003, in that Defendant did not raise the issue of venue, by any means, on or before the pre-trial conference of January 21, 2004.
18. Defendant’s Motion to Change Venue Based on Forum Non Conveniens from Seminole County, Florida to Hillsborough County, Florida, pursuant to Florida Statute §47.122, is hereby GRANTED.
19. Defendant shall be responsible for transferring this case and for paying the costs associated with the transfer of this case from Seminole County, Florida to Hillsborough County, Florida, within fifteen days from the date of this Order.
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