16 Fla. L. Weekly Supp. 782b
Online Reference: FLWSUPP 168GRIFF
Insurance — Personal injury protection — Venue — Medical provider had right to elect to pursue action against foreign insurer in county where provider’s principal place of business is located as that is place where cause of action for nonpayment of PIP benefits accrued in absence of any agreement as to place of payment — Transfer of venue for convenience of parties would be improper where no affidavits or other sworn proof was submitted in support of motion
GLOBAL IMAGING COMPANY, INC., Patient: Darrell Griffin, Plaintiff, vs. VICTORIA INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. CONO 08-1500(72). October 3, 2008. Jill K. Levy, Judge. Counsel: Chad Christensen, Boca Raton. Thomas J. Crowder, Fort Lauderdale.
ORDER ON MOTION TO DISMISS OR IN THE ALTERNATIVE TO TRANSFER VENUE
THIS CAUSE, having come to be heard before the court on Defendant’s Motion to Dismiss or in the Alternative to Transfer Venue to Lee County, and the court having reviewed the court file, having heard argument of counsel and otherwise being fully advised in the premises, makes the following findings:
Venue is governed by §47.011, §47.051 and §47.122 Florida Statutes (2007). Since this is an action against a foreign corporation, it is governed by F.S. §47.051 (2007) which states:
§47.051
“Actions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located. Actions against foreign corporations doing business in this state shall be brought in a county where such corporation has an agent or other representative, where the cause of action accrued, or where the property in litigation is located.”
The election of venue is with the Plaintiff. The burden of pleading and proving that venue is improper is upon the Defendant. Florida Forms, Inc. v. Barkett Computer Services, Inc., 311 So.2d 730 (Fla. 4th DCA 1975), Williams v. Union National Insurance Company, 528 So.2d 454 (Fla. 1st DCA 1988).
Plaintiff’s cause of action is for unpaid PIP (personal injury protection) benefits to a third-party beneficiary. Defendant filed a Motion to Dismiss or in the Alternative to Transfer Venue to Lee County alleging in an unsworn motion that venue was not proper under §47.011 since the auto accident, which is not the subject of this lawsuit, occurred in Lee County, not Broward. Furthermore, defendant alleged that the injured whom is not a party, was treated for injuries in Lee County and the insured whom is not a party, resides in Lee County.
Plaintiff’s cause of action accrued in Broward County where it was allegedly injured. This was where payment was to be made and where Plaintiff’s principal place of business is located. Where there is no agreement as to place of payment for services rendered, place for payment is corporate Plaintiff’s principal place of business. Florida Forms, Inc. at 731. Id. While venue may have been proper in Lee County as well, it does not make venue improper in Broward County. Plaintiff had the right to select which county to pursue its action.
Defendant’s argument is more appropriate for a forum non conveniens motion under F.S. §47.122 (2007) which states:
§47.122
“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.”
However, a transfer of venue based on convenience is improper where no affidavits or other sworn proof is submitted to support the motion. Graham v. Graham, 648 So.2d 814 (Fla. 4th DCA 1995). It is therefore,
ORDERED AND ADJUDGED Defendant’s Motion to Dismiss or in the Alternative to Transfer Venue is hereby DENIED.
