15 Fla. L. Weekly Supp. 1208b
Insurance — Personal injury protection — Venue — Forum non conveniens — Where fact witnesses are located in county other than Sarasota County, and only connection to Sarasota County is chance that medical provider chose to locate corporate operations manager there, interests of justice are not achieved by litigating PIP case in Sarasota County — Motion to transfer venue granted
PHYSICIANS GROUP, L.L.C., As assignee of Robin Houghton, Plaintiff(s), vs. USAA CASUALTY INSURANCE COMPANY, Defendant(s). County Court, 12th Judicial Circuit in and for Sarasota County. Case No. 2007 SC 9392 NC. October 3, 2008. Kimberly Bonner, Judge. Counsel: Anthony D. Barak, Sarasota, for Plaintiff. David B. Kampf, Ramey & Kampf, P.A., Tampa, for Defendant.
ORDER ON DEFENDANT’S MOTION FOR CHANGE OF VENUE
The following cases were considered together on the Defendant’s Motion for Change of Venue: Physicians Group, LLC, as assignee of Jeanette Barreto-Bailey vs. United Services Automobile Association, case number 2007 SC 9409 NC, Physicians Group, LLC as assignee of Robin Houghton vs. USAA Casualty Insurance Company, case number 2007 SC 9392 NC, Physicians Group, LLC as assignee of Donovan Pollins vs. United Services Automobile Association, case number 2007 SC 9394 NC, Physicians Group, LLC as assignee of Yalily Lastra vs. USAA Casualty Insurance Company, case number 2007 SC 9407 NC, Physicians Group, LLC as assignee of Anthony Napolitano vs. United Services Automobile Association, case number 2007 SC 9375 and Physicians Group, LLC as assignee of Lee Hart vs. United Services Automobile Association, case number 2007 SC 9400 NC. The Court has reviewed the pleadings, the affidavits on file and has considered the arguments of counsel.
The applicable statute states:
For the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought.
The underlying facts in the cases are substantially similar, although the pleadings differ in some respects. For example, in some of the cases, a jury trial has been demanded. Likewise other cases contain affidavits of witnesses. After entertaining the arguments of counsel at hearing, the Court is satisfied that all of the actions share distinct similarities, which merit a consolidated order on all cases.
Essentially, the Defendant’s argument is that the cases should be transferred in the interest of justice to the counties “where it matters”. In each of the cases, the Plaintiff has filed a complaint for payment for medical services provided pursuant to Florida’s Personal Injury Protection Statute, Florida Statute 627.730 et seq. All of the cases involve assignments of benefits from the insured to the Plaintiff medical provider.
The complaint alleges that the Plaintiff is a corporate resident of Sarasota County and that payments under the subject PIP policies were to be made by the Defendant to the Plaintiff in Sarasota County. In addition, Defendant is alleged to be a Florida corporation that maintains agents for transaction of its customary business in Sarasota County. The subject accidents and medical treatment all occurred in other counties, which included Duval, Hernando, Hillsborough and Pasco County. In this action, the accident occurred in Hernando County. It does not appear from the record that any of the assignors reside in Sarasota County. In addition, the Defendant denies that it maintains adjusters in Sarasota County to handle claims. This claim was not refuted by the Plaintiff at the hearing.
The Defendant alleges that a transfer of venue is appropriate because all of the underlying events occurred outside of Sarasota County; therefore, it can reasonably be determined that all of the fact witnesses would be required to travel to Sarasota County for trial. In dispute of this claim, the Plaintiff has filed the affidavit of David Balot, who is the managing consultant for the Plaintiff. His affidavit alleges that he would be the corporate representative in all of these actions, and will testify as to the reasonableness of the charges, which the Defendant allegedly did not pay in full. The Plaintiff alleges that the reasonableness of the charges is the only issue for trial, and therefore the location of the accident, witnesses or other factors do not mitigate in favor of a transfer of venue.
Essentially, the Plaintiff alleges that its corporate representative resides in Sarasota County, that he will be their witness, and that it is more convenient for him that the action remain in Sarasota County. It should also be noted that Mr. Balot apparently has no personal knowledge as to the actual treatment rendered to any of the assignors in these actions.
The Plaintiff also disputes the adequacy of the Defendant’s Motion to Transfer Venue, including, a lack of adequate affidavits from witnesses substantiating that their testimony is material and that it would be an undue hardship for them to travel to Sarasota County for this litigation. See e.g. Florida Health Sciences Inc. vs. Elsenheimer, 952 So.2d 575 (Fla. 2nd DCA 2007).
The Court has reviewed the applicable case law with regard to sufficiency of affidavits as well as the other statutory factors that determine whether a change of venue is appropriate in these cases. In weighing the relevant factors, the Court takes into account the propriety of litigating an action in an “uninvolved community.” Hu vs. Crockett, 426 So.2d 1275, 1280 (Fla. 1st DCA 1983). It should be noted that the Plaintiff’s forum selection is not the paramount consideration. Id. at 1278.
However, the Court also acknowledges that the convenience of witnesses has been deemed the most important consideration of the three factors. Although the Plaintiff has urged that the Defendant’s affidavits are insufficient to establish the materiality of the witnesses or the burden involved in traveling, it is disingenuous to assume that the fact witnesses would be located in a county other than where the actual events occurred. This is especially true where the only connection to Sarasota County is the happenstance that the Plaintiff chose to locate its corporate operations manager here.
Likewise, the Court cannot assume, as urged by the Plaintiff, that the issues are so narrow in this case that the locations of the witnesses are essentially irrelevant. Under the prior version of the statute, which will apply in these cases, the reasonableness of the charges for services in these particular cases may also depend upon the geographic location of the treatment, and whether the charges were reasonable based upon community standards. See Fla. Stat. §627.736(5)(a).
Finally, the third alternative factor considered for a change of venue under Section 47.122, i.e., the “interest of justice”, can be determinative. Id. at1280. In these cases, all of the underlying facts occurred in counties that are so geographically removed from Sarasota so as to call into serious question whether the interest of justice are achieved by litigating these matters in this county.
After weighing all of the factors, the Court concludes that the interests of justice are not served by maintaining the present actions in Sarasota County. Therefore, the Defendant’s Motion to Transfer Venue to Hernando County in the above matters is GRANTED.
