17 Fla. L. Weekly Supp. 352b
Online Reference: FLWSUPP 1705EVERInsurance — Homeowners — Venue — Government agency — Home venue privilege applies to homeowners’ claims against Citizens Property Insurance Corporation for breach of contract and unjust enrichment, damages, and equitable relief — Citizens did not waive venue privilege by failing to assert it in other cases — Sword-wielder exception does not apply to case in which Citizens is simply a passive defendant — Motion to transfer venue to county in which Citizens is headquartered is granted
LEAH EVERHART, individually and on behalf of all others similarly situated, Plaintiff, vs. CITIZENS PROPERTY INSURANCE CORPORATION, a government entity, Defendant. Circuit Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 09-68840 CA 24. March 5, 2010. Victoria Platzer, Judge. Counsel: Robert L. Chaiken, Chaiken & Chaiken, P.C., Dallas, TX and David S. Farber, Law Office of David S. Farber, P.A., Coral Gables, for Plaintiff. Farrokh Jhabvala, Richard A. Sharpstein, Ari H. Gerstein, Jordan Burt, LLP, Miami, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION TO TRANSFER VENUE
This cause came before the court January 28, 2010 on Citizens Property Insurance Corporation’s Motion To Transfer Venue To Leon County And To Dismiss The Complaint (“Motion”). The Plaintiff “Everhart” was represented by David Farber, Esq. The Defendant, “Citizens” was represented by Farrokh Jhabvala, Esq. The Court, having reviewed the pleadings and case law, having heard argument of counsel and being otherwise advised in the premises, finds and orders as follows:
FINDINGS OF FACT
This case arises from a Hurricane Wilma claim submitted by Plaintiff to Citizens, which had issued a property insurance policy with a policy term from June 19, 2005 to June 19, 2006 (the “Policy”). Plaintiff subsequently demanded an appraisal of the alleged loss, and Citizens agreed to that demand. Plaintiff alleges that Citizens refused to pay for Ordinance and/or Law coverage and filed claims against Citizens for breach of contract (Count I) and unjust enrichment (Count II). Plaintiff also seeks injunctions, restitution, pre- and post-judgment interest, costs, “all other actual and/or statutory damages, and exemplary damages,” and other unspecified equitable relief. Plaintiff purports to assert claims on behalf of a class of “similarly situated” persons.
Citizens timely filed its Motion to Transfer Venue to Leon County, asserting the “home venue privilege.” Citizens’ motion was accompanied by the affidavit of Amanda L. Lancaster, a Citizens’ Claims Legal Specialist, attesting that the headquarters of Citizens is located in Tallahassee, Leon County, Florida.1 Everhart opposed the transfer of venue.
LEGAL ANALYSIS AND CONCLUSIONS OF LAW
Florida’s home venue privilege dates back to 1948. Fla. Dep’t of Children & Families v. Sun-Sentinel, Inc., 865 So. 2d 1278, 1287 (Fla. 2004). “The home venue privilege provides that, absent waiver or exception, venue in a suit against the State, or an agency or subdivision of the State, is proper only in the county in which the State, or the agency or subdivision of the State, maintains its principal headquarters.” Id. at 1286 (emphasis added); Jacksonville Elec. Auth. v. Clay County Utility Auth., 802 So. 2d 1190, 1192 (Fla. 1st DCA 2002) (“Governmental defendants in Florida have a common law ‘home venue privilege’ to be sued in the county where they maintain their principal headquarters. Absent waiver or application of an identified exception, the home venue privilege appears to be an absolute right.”)(emphasis added).
As the Florida Supreme Court has explained, Florida law recognizes very few exceptions to the home venue privilege:
We have recognized only three exceptions to the home venue privilege. One exception exists in cases where the Legislature has by statute waived the privilege. The second exception, known as the “sword wielder” exception, “applies only where direct judicial protection is sought from an unlawful invasion of a constitutional right of the plaintiff, directly threatened in the county where the suit is instituted.” The third exception to the home venue privilege applies in those cases in which the governmental defendant is sued as a joint tortfeasor.
Sun-Sentinel, 865 So. 2d at 1287-88 (citations omitted).2 Where the allegations of the complaint filed by the party opposing the home venue privilege do not establish waiver or exception to the State entity’s home venue privilege, the privilege must be upheld. Dep’t of Transp. v. City of Miami, 20 So. 3d 908, 910 (Fla. 3d DCA 2009) (reversing trial court’s denial of the home venue privilege “[b]ecause the allegations of the City’s amended complaint do not establish waiver or exception to the State’s home venue privilege.”)
There is no dispute that Citizens was created by statute. Citizens maintains that its Enabling Statute, F.S. § 627.351(6), demonstrates that it is a State body entitled to invoke the home venue privilege. Citizens’ Enabling Statute states:
It is the public purpose of this subsection to ensure the existence of an orderly market for property insurance for Floridians and Florida businesses. . . . The absence of affordable property insurance threatens the public health, safety, and welfare and likewise threatens the economic health of the state. The state therefore has a compelling public interest and a public purpose to assist in assuring that property in the state is insured . . . in order to reduce or avoid the negative effects otherwise resulting to the public health, safety, and welfare, to the economy of the state, and to the revenues of the state and local governments which are needed to provide for the public welfare. . . . The Legislature intends by this subsection that affordable property insurance be provided . . . as long as necessary, through Citizens Property Insurance Corporation, a government entity that is an integral part of the state, and that is not a private insurance company. . . . Because it is essential for this government entity to have the maximum financial resources to pay claims following a catastrophic hurricane, it is the intent of the Legislature that Citizens Property Insurance Corporation continue to be an integral part of the state and that the income of the corporation be exempt from federal income taxation and that interest on the debt obligations issued by the corporation be exempt from federal income taxation.
Fla. Stat. § 627.351(6)(a)1 (emphasis added). The Enabling Statute plainly states that Citizens is a “government entity” created for a “public purpose” and “is an integral part of the state.” Id.
This Court is bound to give effect to the Legislature’s intent as expressed in the Enabling Statute, unless it determines that the intent was so clearly erroneous as to go beyond the power of the Legislature. See Knowles v. Beverly Enters.-Fla., Inc., 898 So. 2d 1, 5 (Fla. 2004) (“It is well settled that legislative intent is the polestar that guides a court’s statutory construction analysis.) Everhart has made no showing that the Legislature’s findings are erroneous or go beyond its power. In any event, this Court concludes that the Legislature’s findings are not erroneous and must be given full effect as written. Thus, Citizens is a State body entitled to invoke the home venue privilege.
Citizens is also subject to numerous statutory requirements which further confirm its status as a State body. For example, Citizens’ income and interest on its debt obligations are exempt from federal income taxation (§ 627.351(6)(a)1). Citizens is supervised by a Board of Governors appointed by the Florida State Governor, Chief Financial Officer, President of the Senate, and Speaker of the House of Representatives (§ 627.351(6)(c)4.a). Citizens’ Board and senior managers are subject to Florida’s statutory Code of Ethics for Public Officers and Employees (§ 627.351(6)(d)3). Citizens operates according to a plan of operation approved by the State Financial Services Commission (§ 627.351(6)(a)2). Citizens is required to fund deficits by levying tax-like assessments on all assessable insurers and insureds in the State of Florida (§ 627.351(6)(b)3). In 2006, the Florida Legislature appropriated to Citizens $715 million from the State Treasury to reduce Citizens’ deficit (2006 Fla. Laws c. 2006-12, Sec. 44). Citizens’ revenues are to be used solely for the purposes reflected in the statutes, and no part of its income “may inure to the benefit of any private person” (§ 627.351(6)(b)2.f). Like other State governmental agencies, Citizens is subject to the public records and government-in-the-sunshine laws (§ 627.351(6)(x)). Citizens is granted limited immunity (§ 627.351(6)(s)1).
This Court concludes that Citizens has met its burden of demonstrating that it is a State body and is entitled to invoke the home venue privilege.
Plaintiff also argues that Citizens waived its home venue privilege because (i) it has not asserted the privilege in other cases, (ii) it moved for the recusal of the original judge assigned to this case because that judge had a pending suit against Citizens, (iii) it joined its Motion to Transfer with a motion to dismiss, and (iv) the Policy provides for a court to appoint an umpire for appraisals. These arguments do not withstand analysis. Everhart’s complaint neither alleges nor establishes any factual bases for waiver.
Everhart has cited no authority, and the Court is aware of none, that would support the theory that Citizens waived its home venue privilege in this case simply because it did not assert the privilege in other cases. Venue is typically determined on a case-by-case basis. Everhart’s argument that Citizens waived the home venue privilege by joining its Motion to Transfer with a motion to dismiss is precluded by Florida Rule of Civil Procedure 1.140(b) which states: “No defense or objection is waived by being joined with other defenses or objections in a responsive pleading or motion.” Everhart’s argument that waiver occurred by Citizens’ motion to recuse a judge who had a conflict of interest fails because it is well established that “[w]hen an agency wishes to challenge a plaintiff’s venue selection, it must first raise the issue in a motion to dismiss or an answer.” Fish & Wildlife Conservation Comm’n v. Wilkinson, 799 So. 2d 258, 260 (Fla. 2d DCA 2001); Fla. R. Civ. P. 1.140(b).
Everhart further argues that Citizens waived the home venue privilege because a Policy provision concerning “Appraisal” provides that if the party-appointed appraisers “cannot agree upon an umpire within fifteen (15) days, you or we may request the choice be made by a judge of a court of record in the state where the Described Location is located.” This provision does no more than permit the parties to request a state court judge to choose an umpire for an appraisal. There is no such dispute over the selection of an umpire in this case, and this provision therefore has no application here. By its plain terms, this provision does not address (or even mention) venue for a lawsuit.
Lastly, Everhart argues that the “sword-wielder” exception bars Citizens’ exercise of the home venue privilege. In Dep’t of Transp. v. City of Miami, Id. at 911, the Third District explained that the sword-wielder exception “is limited to those cases wherein the primary purpose is to obtain direct judicial protection from an alleged unlawful invasion of the constitutional rights of the plaintiff within the county where the suit is instituted.” See also Jacksonville Elec. Auth., 802 So. 2d at 1192 (“The sword-wielder exception applies when the plaintiff’s constitutional rights are in ‘real and imminent danger’ of invasion by a state agency.”). The court must determine “whether the State was the initial sword-wielder or ‘prime mover.’ ” Id. In Dep’t of Transportation, the Court rejected application of the sword-wielder exception because the complaint “[did] not indicate that the State is enforcing a rule or regulation against the City of Miami that would produce a constitutional violation,” and the Department was “a passive defendant in the City’s action . . . .” Id. Likewise, Everhart’s Complaint does not allege that Citizens is enforcing any rule or regulation that would produce a constitutional violation and Citizens is simply a passive defendant in Everhart’s action. Accordingly, the sword-wielder exception does not apply here.
WHEREFORE IT IS HEREBY ORDERED and ADJUDGED:
1) Citizen’s Motion To Transfer Venue To Leon County is GRANTED. This action is hereby transferred to Leon County, Florida, for all purposes. In light of the transfer, this Court does not address Citizens’ alternative motion to dismiss the Complaint
2) The Clerk of this Court is hereby directed to transmit the contents of the court file to the Clerk of the Circuit Court of the Second Judicial Circuit in and for Leon County, Florida, with a certified copy of this Order, and to take any other steps necessary to effectuate the transfer of this case from this Court to the Circuit Court for Leon County, Florida.
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1Motions for transfer of venue are not limited to the four corners of the complaint. See, e.g., Barclays Bank, PLC v. Munoz, 890 So. 2d 1252, 1252 (Fla. 3d DCA 2005) (explaining that “the trial court erred in its reasoning that it could not look beyond the four corners of the complaint” on a motion to dismiss for improper venue).
2In Sun-Sentinel, 865 So. 2d at 1288-89, the Florida Supreme Court created a fourth exception “for cases where a party petitions the court for an order to gain access to public records, and where the records sought are by law confidential and cannot be made public without a determination by the court, pursuant to the petition, that good cause exists for public access.” This exception has no application here.
