18 Fla. L. Weekly Supp. 681a
Online Reference: FLWSUPP 1808MEDI
Insurance — Personal injury protection — Dismissal — Alleged improper joinder of parties is ground for severance or order for separate trials, not dismissal of action — Where count of complaint seeking declaratory and injunctive relief pertains to all five insureds whose treatment by medical providers is at issue, there is rational basis for joinder — Failure to attach contract to complaint does not require dismissal where providers’ counsel alleges in complaint that he is not in possession of contract and seeks to obtain contract through discovery — Dismissal is not merited on ground that there is no need for injunctive relief because there is adequate remedy at law where providers have adequately pled elements to allow court to consider claim for injunctive relief — Venue — Motion to transfer venue is denied where providers maintain facilities in selected venue, and insurers that are foreign corporations maintain offices there
MEDICAL SPECIALISTS OF TAMPA BAY, LLC D/B/A GULF COAST INJURY CENTER, Plaintiff, vs. MGA INSURANCE COMPANY, INC., Defendant. County Court, 6th Judicial Circuit in and for Pasco County. Case No. 51-2011-CC-000649-WS, Div. O. May 27, 2011. Paul E. Firmani, Judge. Counsel: Lawrence H. Liebling, Liebling & Liebling, Safety Harbor, for Plaintiffs. Gregory J. Blackburn, Dutton Law Group, P.A., Tampa, for Defendant.
ORDER
THIS MATTER having come before the Court upon the Defendant’s Motion to Dismiss or in the alternative Motion for More Definitive Statement or in the alternative Motion to Transfer Venue and the Court having considered the arguments of Counsel as well as any legal memoranda submitted and having reviewed the Court file and being fully advised in the premises finds as follows:
The Defendant’s Motion to Dismiss states several grounds.
The first ground is that the Plaintiff has improperly joined six counts in the complaint. The Defendant argues that 5 counts are for 5 separate insureds with 5 separate lawsuits who were provided services by two medical providers (the first Plaintiff in four cases and the second Plaintiff in one case). The Defendant argues that this would be unduly burdensome on the Defendant. Fla. Rule of Civil Procedure 1.260 states that mis-joinder of parties is not a ground for dismissal of an action and the rule provides that a Court can order a severance or separate trial under appropriate circumstances and at the appropriate time.
The Plaintiff argues that there is a valid basis for joining the 5 insureds in the complaint as count 6 pertains to them all where the Plaintiff is seeking a declaratory judgment and supplemental injunctive relief pursuant to Chapter 86 to determine their respective rights under their policies with the Defendant Corporation. As such the Court finds there is rational basis for their joinder which would lead to judicial efficiency.
The second ground for dismissal is that no contracts are attached to the complaint which are the basis for counts 1, 2, 3 and 5. A copy of the insurance policy is attached to substantiate count 4 in the complaint.
The Defendant correctly sites Fla. Rule of Civil Procedure 1.130(a) which states that “all bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading.” The Plaintiffs argue and more importantly state in their complaint that they are not in possession of the contracts which pertain to counts 1, 2, 3 and 5. The various cases cited by the Defendant do highlight the general rule that failure to attach a copy of an instrument upon which the action is brought may result in dismissal of a case, but where the instrument is not within the pleaders possession or control such failure to attach should not be fatal to the cause and the pleader should be given the opportunity by means of discovery proceedings to establish the existence of the instrument. See Geanne K. Sachse v. Tampa Music Company, 262 So.2d 17 (Fla. 2nd DCA 1972). Plaintiff’s Counsel in the present case has pled in counts 1, 2, 3 and 5 that he is not in possession of the contract which is the subject of the dispute and seeks to obtain a copy by discovery, and indeed a review of the Court file shows that the Plaintiffs have made a request for the production of documents which include a certified copy of the policy issued by the Defendant that provides PIP and medical payment benefits to the various insured’s. These requests were filed with the Court February 14th, 2011 prior to the hearing on the Defendant’s Motion to Dismiss.
Another ground that the Defendant requests a dismissal is that there is no need for injunctive relief when there is an adequate remedy at law. The general principle is that under Florida law to obtain an injunction a plaintiff must demonstrate; (1) a clear legal right; (2) an adequacy of remedy at law; and (3) that irreparable injury will occur if such relief is not granted. See Special Purpose Accounts Receivable Cooperative Corporation v. Prime One Capital Company, LLC 125 F. Supp. 2nd 1093 (United. States District Court SD Fla. 2000) The Court finds after reviewing count 6 of the complaint that the Plaintiff has adequately pled the elements to at least allow the Court or a Trier of Fact to consider the complaint on its merits, The Court finds the other arguments of Counsel for the Defendant to have no merit.
Based on the foregoing findings, it is hereby
ORDERED AND ADJUDGED that the Defendant’s Motion to Dismiss is denied as well as the Motion for More Definitive Statement and the Defendant shall have 20 days from the date of this order to file an answer and any affirmative defenses.
Finally the Plaintiff also seeks a Motion to Transfer Venue to Hillsborough County arguing that the one of the Plaintiffs Gulfcoast Injury Center, LLC does business at 1104 West Kennedy Blvd., Tampa, FL 33606 based on a filing with the Florida Department of State, Division of Corporations.
The Defendant further cites various cases where Appellate Courts have held that there was an abuse of the Trial Courts discretion in refusing to transfer cases to another jurisdiction.
This Court is mindful that Fla. Stat. 47.091 gives all Courts the power to grant changes of venue and it is their duty to grant changes of venue where appropriate. Furthermore F.S. 47.122 indicates that 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. Furthermore Fla. Rule of Civil Procedure 1.060 provides for the transfer of actions where the Court finds that an action has been filed in the wrong county.
Most of the cases cited by the Defendants involve an accident case involving injury or wrongful death where numerous witnesses were located in a County other than the County where the lawsuit was filed. See G Morrill v. Lytle, 893 So.2d 671(1st DCA 2005) [30 Fla. L. Weekly D479a]. In that case the Appellate Court held that the Trial Court, in the consolidated wrongful death action, abused its discretion by denying a motion to transfer venue to the County in which the accident occurred and numerous witnesses were located or where the only facts supporting venue in the original forum was the location of a corporate office of two of the Defendants.
In the present case the Plaintiff through Counsel has pled that both the Plaintiff All Florida Corporations maintaining facilities in Pasco County which provide medical and chiropractic treatment and services. Both Defendants are foreign corporations authorized to do business in the State of Florida and maintain facilities for the transaction of their usual and customary business activities in Pasco County, Florida.
As such the Defendant has provided insufficient basis for the transfer of this action to Hillsborough County. Based on the foregoing it is hereby
ORDERED AND ADJUDGED that the Defendant’s Motion to Transfer Venue to Hillsborough County is hereby denied.
