17 Fla. L. Weekly Supp. 1035a
Online Reference: FLWSUPP 1710DARI
Insurance — Personal injury protection — Venue — Motion to dismiss PIP suit for improper venue is denied where venue is proper in county where medical provider/assignee maintains home billing office from which bills are generated, maintained and mailed and at which payments are due, processed and recorded
PAN AM DIAGNOSTIC SERVICES, INC., d/b/a PAN AM DIAGNOSTIC OF ORLANDO, a/a/o Orelien Darius, Plaintiff, vs. NEW HAMPSHIRE INDEMNITY COMPANY, INC., Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 10-4125 COCE (55). June 11, 2010. Sharon Zeller, Judge.
ORDER ON DEFENDANT’S AMENDED MOTION TO DISMISS
THIS CAUSE having come on to be heard on Defendant’s Amended Motion to Dismiss and the Court having heard argument of counsel, and being otherwise advised in the premises, the court finds as follows:
Plaintiff, Pan Am Diagnostic Services, Inc., d/b/a Pan Am Diagnostic of Orlando, filed suit in Broward County against Defendant, New Hampshire Indemnity Company, Inc. for breach of its contract for failure to pay benefits under a policy of personal injury protection insurance. Defendant is a foreign corporation which has an office in Seminole County, Florida. Defendant filed an Amended Motion to Dismiss the Complaint alleging improper venue. In support of their motion, New Hampshire Indemnity Company, Inc. submitted an affidavit alleging that they maintain an office in Lake Mary; they do not have an office in Broward County nor maintain any agent in Broward; that the policy of insurance was issued in Orange County; there is no property subject to the litigation; the claimant resides in Lake County; the services were rendered in Orange County; and that Plaintiff’s billing address is in Miami-Dade County.
Section 47.051 states: 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.
Plaintiff’s concurs that there is no property in litigation. Therefore, the issue is where did the cause of action accrue. “The law is well-established that a breach of contract action accrues where the alleged breach occurs, i.e., where the defendant fails to perform the covenant that he allegedly breached. . . . The general rule governing venue in actions for breaches of obligations relating to insurance contracts is stated as follows:
A cause of action for a breach of an obligation to pay under an insurance policy arises at the place where the insurer is to pay the loss, and where the policy is silent as to where the payment of the loss is to be made, it is presumably to be made at the residence of the insured, and therefore a cause of action arises and is maintainable in the county of the insured’s residence where the insurer fails to pay in such county.
44 Am. Jur 2d Insurance § 1872, at 870 (1982) (emphasis added). Oliver v. Severance, 542 So. 2d 408, (Fla. 1st DCA 1989).
The general rule in Florida regarding the fixing of venue for breach of contract actions is the same as actions against insurers. Id. at 411. See also, American Vehicle Ins Co v. Goheagan, 2010 Fla. App. LEXIS 7320 (Fla. 4th DCA, May 26, 2010). In Goheagan, an estate obtained a judgment against the insured in a negligence action and thereafter, the insured assigned all claims against the company to the estate. The estate filed an action against the insurance company for failing to act in good faith by, among other things, failing to timely tender the policy limits. The insurance company moved to dismiss or transfer venue. The court looked at the cause of action as one for breach of a contractual obligation, stating “[a] cause of action on a contract accrues for venue purposes where the breach of that contract occurs, and if a contract involves performance, the breach occurs where the defaulting party fails to perform an act that it has agreed to do.” These duties included making a settlement offer and/or tendering the policy limits to the Estate.
Plaintiff who was assigned the cause of action by the claimant, has three offices: Orlando, Miami-Dade and Broward. Pursuant to Plaintiff’s affidavit, Plaintiff’s bills are generated, maintained and mailed out of its home billing office located in Broward County. The Broward office is the central office for all 3 locations and all payments are due, processed, recorded and managed in this office. The facility where services are performed does not generate, maintain, or manage any payments and there is no access to billing information in that facility. Therefore, it is
ORDERED AND ADJUDGED that Defendant’s Amended Motion To Dismiss be and is hereby DENIED.
