18 Fla. L. Weekly Supp. 17a
Online Reference: FLWSUPP 1801SANT
Insurance — Personal injury protection — Venue — Forum non conveniens — Appeals — In absence of hearing transcript, appellate court will review written documents in appendix — No abuse of discretion in granting motion to transfer venue from Miami-Dade County to Orange County where witnesses would be required to travel substantial distance to attend depositions and testify in Miami-Dade County, and medical provider could prosecute action in Orange County
DIGITAL MEDICAL DIAGNOSTIC, INC., a/a/o Ruth Santiago, Appellant, v. USAA GENERAL INDEMNITY COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-296 AP. L.C. Case No. 08-32375 SP 23. September 22, 2010. On appeal from a non-final order rendered by the Miami-Dade County Court, Hon. Myriam Lehr. Counsel: Marlene S. Reiss, Law Offices of Marlene S. Reiss, P.A., for Appellant. Douglas H. Stein, Seipp & Flick, LLP, for Appellee.
(Before TUNIS, THORNTON, and GLICK, S., JJ.)
(PER CURIAM.) Digital Medical Diagnostic, Inc. (“medical provider”) filed a civil suit against USAA General Indemnity Company (“insurer”) alleging contractual breach (count 1) and seeking a declaratory judgment pursuant to Chapter 86, Florida Statutes (count 2). The insurer moved the county court to transfer venue from Miami-Dade County to Orange County, Florida pursuant to Florida Rule of Civil Procedure 1.060 and section 47.122, Florida Statutes (1998). Both parties submitted opposing affidavits to support their positions. The county court heard the litigants’ arguments and ordered the lawsuit transferred to Orange County, Florida.
We obtain interlocutory appellate jurisdiction pursuant to section 26.012(1), Florida Statutes, and Florida Rule of Appellate Procedure 9.130(a)(1). Infinity Ins. Co. v. Gables Ins. Recovery, 17 Fla. L. Weekly Supp. 416b, (Fla. 11th Cir. Ct. Mar. 1, 2010); American Federated Title Corp. v. A&M Florida Props., LLC, 17 Fla. L. Weekly Supp. 84b, (Fla. 11th Cir. Ct. Dec. 9, 2009).I.
The insurer asserts that without a hearing transcript, we must affirm the order transferring venue “because there is no way for the appellate court to determine whether the trial court abused its discretion.” We disagree. In Chaiken v. Suchman, the district court stated:
[A]lthough there is no transcript of the attorney’s fees hearing, other portions of the record, such as the motion for rehearing and the order denying that motion, sufficiently indicated that the plaintiffs’ main argument on appeal was indeed raised and addressed at the hearing on the motion.
694 So. 2d 115, 117 (Fla. 3d DCA 1997) [22 Fla. L. Weekly D1336b]. See Solomon v. Dickison, 916 So. 2d 943, 944 (Fla. 1st DCA 2005) [30 Fla. L. Weekly D2712a]; cf. Quality Holdings of Florida, Inc. v. Selective Investments, IV, LLC, 25 So. 3d 34, 36 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D2393a]. Here, the appendix includes the insurer’s motion to transfer venue, the medical provider’s opposition to the motion, the opposing affidavits, and the trial court’s order. Under Chaiken‘sauthority, we review the written documents in the appendix, absent a hearing transcript, to resolve this appeal.II.
The medical provider argues that the insurer failed to demonstrate that Orange County would serve as a viable alternative forum based on forum non conveniens. The insurer argues that the trial court properly transferred venue to Orange County, and that Orange County serves as a proper venue for this civil action.
Florida law 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.
§ 47.122, Fla. Stat. (2009) (emphasis added). Interpreting a Florida statute requires interpreting the statute’s plain language. Perez v. Rooms to Go, 997 So. 2d 511, 512 (Fla. 1st DCA 2008) [34 Fla. L. Weekly D32a].
We review a trial court’s order transferring venue, pursuant to section 47.122, Florida Statutes, for an abuse of discretion. Gov’t Employees Ins. Co. v. Burns, 672 So. 2d 834, 836 (Fla. 3d DCA 1996) [21 Fla. L. Weekly D181a]. A trial court abuses its discretion by incorrectly applying the law. Infinity Ins. Co., 17 Fla. L. Weekly Supp. 416b. We view a plaintiff’s forum selection as presumptively correct, Burns, 672 So. 2d at 835, however, we will not honor the plaintiff’s venue privilege “where the convenience of the parties or witnesses, or the interests of justice, require the action to be transferred.” P.V. Holding Corp. v. Tenore, 721 So. 2d 430, 431 (Fla. 3d DCA 1998) [23 Fla. L. Weekly D2638a]. When an attenuated connection to Miami-Dade County exists, and another venue will serve as a proper venue due to witnesses’ or the parties’ location, then the trial court should transfer the case to the other venue. Tenore, 721 So. 2d at 431; Sullivan v. Klein, 691 So. 2d 21, 22 (Fla. 3d DCA 1997) [22 Fla. L. Weekly D786b]; Florida Patient’s Comp. Fund v. Florida Physicians’ Ins. Reciprocal, 507 So. 2d 778, 779 (Fla. 3d DCA 1987). The defendant-moving party maintains the burden to demonstrate “either substantial inconvenience or that undue expense requires a change for the convenience of the parties or witnesses.” Id.
To support its motion to transfer venue, the insurer submitted its litigation manager’s affidavit. We analyze this affidavit de novo. Solomon, 916 So. 2d at 944. The litigation manager averred that the insurer issued the insurance policy to the insured in Orange County, Florida; that the insured resides in Orange County; the motor vehicle accident occurred in Orange County; the medical care occurred in Orange County; the medical provider’s “treatment facility” is located in Orange County; the insurer will suffer substantial inconvenience and incur undue expense in defending this lawsuit in Miami-Dade County; the medical providers will have to travel to Miami-Dade County to testify at trial; the insurer will be required to incur undue expense to pay for any medical providers who will have to close their offices for an entire day to travel to Miami-Dade County to give testimony; and potential witnesses are located in Orange County and will be required to travel a substantial distance in order to attend deposition or testify in trial, thereby incurring substantial inconvenience and undue expense.
The witnesses’ convenience serves as “the single most important consideration of the three statutory factors’.” Florida Patient’s Comp. Fund, 507 So. 2d at 779 (citing Hu v. Crockett, 426 So. 2d 1275, 1279 (Fla. 1st DCA 1983)). The insurer’s affidavit demonstrates that the witnesses will encounter inconvenience and that the medical provider could prosecute this action in Orange County. Furthermore, the affidavit provides substantial and competent evidence justifying the lower court’s determination. Red Carpet Corp. of Panama City Beach v. Southeast Banking Corp., 580 So. 2d 780, 781 (Fla. 3d DCA 1991). We conclude that the insurer met its burden, the non-final order does not conflict with section 47.122, Florida Statutes, and no abuse of discretion occurred.III.
Because the medical provider does not prevail on interlocutory appeal, section 627.428, Florida Statutes, does not entitle it to interlocutory appellate attorney’s fees. Thus, we deny the medical provider’s motion for interlocutory appellate attorney’s fees.
Affirmed.
