15 Fla. L. Weekly Supp. 630c
Insurance — Personal injury protection — Provider/assignee’s action against insurer — Venue — Forum non conveniens — Motion to transfer venue from Broward County to Orange County — Discussion of factors underlying court’s ruling
TRINITY DIAGNOSTIC IMAGING, INC. a/a/o HENDERSON, CALEB, Plaintiff, vs. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-19649 COCE. April 15, 2008. Lisa Trachman, Judge. Counsel: Erich R. von Unruh, Kirwan & Spellacy, P.A., Fort Lauderdale, for Defendant. Jonathan J. Warrick.
ORDER GRANTING DEFENDANT’S MOTION TO TRANSFER VENUE BASED ON FORUM NON CONVENIENS
THIS CAUSE, came before the court for hearing on April 4, 2008, and the court, having reviewed the Motion, the court file, legal authorities and having heard argument of counsel, finds as follows:
Factual Background:
The Plaintiff filed a Complaint against Progressive American Insurance Company on November 2, 2007, for failure to pay personal injury protection (“PIP”) benefits on behalf of Maureen Malaugh-Washington. Progressive has filed a Motion to Transfer Venue based on forum non conveniens. Progressive provided an affidavit from its claims representative indicating that the Plaintiff’s chosen forum would be an inconvenience to the Defendant and witnesses likely to be called. At the hearing on this motion, the Plaintiff’s counsel indicated that the Plaintiff’s counsel’s office is located in Broward County and the witnesses that the Plaintiff intended on calling are located in Broward County. The Plaintiff’s counsel stated they only intended on calling billing personnel of the billing company who handled the billing of the Plaintiff and they were located in Broward County. The Defendant’s counsel stated that the accident giving rise to this claim occurred in Orange County and the individuals who were involved in this accident live in Orange County. In addition, the medical services that were rendered in this accident occurred in Orange County.
Progressive stated that its intention was to call the individuals who were involved in this accident as well as the medical personnel who treated them as witnesses in this case. All of these individuals reside in Orange County. Progressive indicated that it would provide the names of the witnesses if the Court so required.
Conclusions of Law:
The Supreme Court of Florida adopted a forum non conveniens doctrine based upon federal precedent through the case, Houston in Kinney Sys., Inc. v. Continental Ins. Co., 674 So. 2d 86,88,93 (Fla. 1996). The Court codified its holding in Fla. R. Civ. P. 1.061. This rule provides four criteria for analysis:(1) An Adequate Alternate Forum Exists
The first step of a Rule 1.061 analysis is whether an adequate forum exists which has jurisdiction over the entire case. The primary concern in this analysis is whether the defendant is amenable to process in the other jurisdiction. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-07 (1947). “In rare circumstances, however, where the remedy offered by the other forum is clearly unsatisfactory, the other forum may not be an adequate alternative, and the initial requirement may not be satisfied. Thus, for example, dismissal would not be appropriate where the alternative forum does not permit litigation of the subject matter of the dispute.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n. 22, 102 S.Ct. 252, 265 n. 22, 70 L.Ed.2d 419 (1981).
The forum then must offer a legal remedy and the parties must be within the jurisdiction of the court. With regard to the legal remedy, the Court in Kinney stated that:
[A]lternate fora are not “clearly unsatisfactory” merely because the available legal theories or potential recovery there are less generous than those available where the suit was brought. Rather, the alternative fora are inadequate under the doctrine only if the remedy available there clearly amounts to no remedy at all.
Kinney, 674 So. 2d at 91. Ciba-Geigy Ltd. v. Fish Peddler, Inc., 691 So. 2d 1111, 1115 (Fla. 4th DCA 1997), interpreted this factor as requiring a two-step process to determine both the availability and adequacy of an alternative forum.
In this case at bar Orange County Florida is both an available and adequate alternative forum because the legal theories and potential recovery are the same as the county where this suit was brought and the Defendant is amenable to the Orange County Courts Jurisdiction.(2) Relevant Factors of Private Interest Favor Alternate Forum
The second step in the analysis focuses on how the parties’ “private interests” will be affected if the motion is granted or denied. As the U.S. Supreme Court enunciated in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947), these private interests are:
the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; probability of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforcibility [sic] of a judgment.
The alternative forum does not have to be a better place to litigate. Ciba-Geigy Ltd. v. Fish Peddler, Inc., 691 So. 2d 1111, 1119 (Fla. 4th DCA 1997). On the other hand, when both fora are inconvenient, the plaintiff’s choice should not be disturbed; otherwise the court would merely be shifting inconvenience from the defendant to the plaintiff. See Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253, 260 (11th Cir. 1996).
Sources of proof in this case include documents, vehicles and witnesses. Both drivers, involved in this accident are key witnesses and they both reside in Orange County. The vehicles involved in this accident are located in Orange County. The medical personnel who rendered treatment to Maureen Marlaugh-Washington are all located in Orange County. The Plaintiff states that they intend on only calling witnesses located in Broward County and that they include the billing personnel of the Plaintiff. Thus, all relevant factors of private interest do not favor the alternate forum, and the strong presumption against disturbing plaintiffs’ initial forum choice prevails.(3) The Public Interest Favors the Alternate Forum
The third step of the Rule 1.061 analysis comes into play only if, in weighing the parties’ private interest factors, the trial court finds them to be at or near equipoise. Kinney, 674 So. 2d at 91. This step is therefore necessary as the private interest factors in this case at bar are at or near equipoise.
The public factors are:
The administrative difficulties flowing from court congestion; the local interest in having localized controversies decided at home; the interest of having a trial of a diversity case in a forum that is at home with the law that must govern the action; the avoidance of unnecessary problems in conflict of laws, or the application of foreign law; and the unfairness of burdening citizens in an unrelated forum with jury duty.
Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6, 102 S. Ct. 252, 258 n. 6, 70 L. Ed. 2d 419 (1981).
Florida courts have a valid interest in protecting their dockets from cases which lack a significant connection to our jurisdiction. Kinney, 674 So. 2d at 92, quoting Pain v. Technologies Corp., 637 F.2d 775, 791-92 (D.C.Cir. 1980). Numerous Florida decisions reflect this principle and provide examples of the application of step three of the rule. For example, in Pearl Cruises v. Bestor, 678 So. 2d 372 (Fla. 3d DCA 1996), California plaintiffs were injured in a car accident in Vietnam while on a trip arranged by an Italian ship-owner with foreign cruise line agents. But the court explained that Italy had a very substantial concern for its own domicialiaries.
In this case at bar the local interest in having this case tried in Orange County where the accident occurred and where those individuals involved in the accident reside and where those who treated the claimant live outweighs the private interest of the Plaintiff. In addition, it is unfair to burden the citizens of Broward County with a case wherein the accident, individuals involved and those who treated the claimant all reside in Orange County.(4) Reinstatement in the Alternate Forum
Having found that Orange County is an adequate alternative forum, the court could ensure that Plaintiff can reinstate their case in the alternate forum without undue inconvenience or prejudice. Given the automatic stipulations of Rule 1.061 and given the Affidavits of the Litigation Representative for Progressive genuine remedy and forum exist in Orange County Florida.
A transfer of venue based on forum non conveniens is permitted for the convenience of the parties, the convenience of the witness or in the interest of justice. §47.122, Fla. Stat. Unless the complaint on its face supports a forum non conveniens transfer, the party requesting a change of venue must support its motion by affidavit, live testimony or other evidence offered under oath that provides the trial court with sufficient information regarding the interests and limitations of the parties and witnesses. Ground Improvement Techniques, Inc. v. Merchant’s Bonding Co., 707 So. 2d 1138,1139 (Fla. 5th DCA 1998).
Progressive has supported their motion requesting a change of venue with an affidavit of the litigation representative of Progressive and has met their burden of overcoming the four factors of analysis which determine whether this case should be transferred. In light of the record and the statutory requirements, this trial court was provided with sufficient evidence to appropriately consider the convenience of the parties, the convenience of the witnesses and the interest of justice. As such this Court has determined that for the convenience of the parties, witnesses and in the interest of justice that a transfer of this case to Orange County Florida is warranted.
Accordingly, it is hereby,
ORDERED AND ADJUDGED that Defendant’s Motion to Transfer Venue to Orange County Florida is GRANTED, and the Defendant shall pay the transfer costs.
