19 Fla. L. Weekly Supp. 396b
Online Reference: FLWSUPP 1905ANDRInsurance — Venue — Forum non conveniens — Insurer’s motion to transfer venue is granted where medical provider claimed in complaint that it is domestic corporation with principal place of business in Volusia County, but insurer presented unrebutted evidence that provider’s principal place of business is Hillsborough County, and provider argued that venue in Volusia is proper because its billing provider is located there, but did not submit affidavits in defense of its choice of venue or contest insurer’s assertion that most witnesses live in Hillsborough County
EMERGENCY MEDICAL ASSOCIATES OF FLORIDA, LLC, as Assignee of Everett Andrews, Plaintiff, vs. FIRST ACCEPTANCE INSURANCE COMPANY, INC., Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2011-34048 COCI, Division 82. January 24, 2012. Steven C. Henderson, Judge. Counsel: Steven Dell, Bradford Cederberg, P.A., Orlando, for Plaintiff. James S. Gentry, Dutton Law Group, P.A., Orlando, for Defendant.
ORDER
THIS CAUSE having come before the Court upon Defendant’s MOTION TO DISMISS PLAINTIFF’S COMPLAINT, OR IN THE ALTERNATIVE, MOTION FOR MORE DEFINITE STATEMENT AND MOTION TO TRANSFER VENUE (hereinafter “Motion”), and said Motion having been set for a hearing, and said hearing having been conducted on January 23, 2012 at 10:30 a.m. before the undersigned judge, and the Court having reviewed the file and otherwise being fully advised in the premises, does find as follows:
1. This cause is a small claims action where the amount in controversy does not exceed $5000.00.
2. Section 47.011, Florida Statutes, states “[a]ctions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located.”
3. Section 47.051, Florida Statutes, states in pertinent part that “[a]ctions 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.”
4. Section 47.122, Florida Statutes, provides 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.”
5. In reviewing a forum non conveniens motion, the Court must engage in a four-step analysis, described as follows: [1] The court must establish whether an adequate alternative forum exists which possesses jurisdiction over the whole case. [2] Next, the trial judge must consider all relevant factors of private interest, weighing in the balance a strong presumption against disturbing plaintiff’s initial forum choice. [3] If the trial judge finds this balance of private interests in equipoise or near equipoise, he must then determine whether or not factors of public interest tip the balance in favor of another forum. [4] If the Court decides that the balance favors such a forum, the trial judge must ensure that plaintiffs can reinstate their suit in the alternative forum without undue inconvenience or prejudice. Kinney System, Inc. v. Continental Ins. Co., 674 So.2d 86, 90 (Fla. 1996) [21 Fla. L. Weekly S43a].
6. In Safety National Casualty Corp. v. Florida Municipal Insurance Trust, et.al., 818 So.2d 612, 613 (Fla. 5th DCA 2002) [27 Fla. L. Weekly D1172c], the Court stated that “[t]he burden is on the defendant to establish before the trial court that either substantial inconvenience or undue expense requires a change for the convenience of the parties or witnesses.”
7. The Safety National court went on to state that where a plaintiff defending a venue choice against a forum non conveniens attack fails to file affidavits about facts mitigating against the forum non conveniens argument, a reviewing court may find an abuse of discretion on the part of the trial court for failure to transfer the case. Id. at 613, citing to Eggers v. Eggers, 776 So.2d 1096 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D438a].
8. On or about November 14, 2011, counsel for the defense filed its Motion wherein the defense argued, inter alia, that this case should be transferred from Volusia County to Hillsborough County under the principle of forum non conveniens.
9. In the case at bar, the Plaintiff’s Complaint, filed with the Clerk of Courts on October 7, 2011, states that the Plaintiff is a domestic corporation with its principal place of business in Volusia County, Florida. However, at the hearing on the Defendant’s Motion, the Defense presented unrebutted argument to the Court that the Plaintiff’s 2011 Limited Liability Company Annual Report filed with the Florida Secretary of State’s office on January 12, 2011, shows that the Plaintiff’s Principal Place of Business is located in St. Petersburg, Florida, that the Plaintiff’s registered agent’s address is located in St. Petersburg, Florida, and that the addresses for all Managing Members/Managers are located in either St. Petersburg, Florida or Tampa, Florida.
10. At the hearing on Defense’s Motion, the Defense presented uncontested argument to this Court that the Plaintiff’s Assignee, Everett Andrews, is a resident of Hillsborough County, Florida. Furthermore, the Defense presented uncontested argument that the accident which gave rise to the instant cause occurred in Hillsborough County, that the accident was investigated by law enforcement officers in Hillsborough County, that all the medical treatment received by Everett Andrews occurred in Hillsborough County, and that most, if not all witnesses, who might be deposed or called to testify at a trial in this matter reside in or around the Hillsborough County area of Florida.
11. Counsel for the Defense stipulated that the Defense would bear the costs associated with transfer of venue to Hillsborough County and the refiling of this cause thereat.
12. Plaintiff’s response to the aforementioned argument was that venue is proper in Volusia County because the Plaintiff’s billing provider’s address is a post office box in Daytona Beach, Florida. The Plaintiff did not submit any affidavits to the Court in defense of its choice of Volusia County as the proper venue choice for this cause or mitigating against the Defense’s forum non conveniens request to transfer this case to Hillsborough County.
13. The Plaintiff did not contest the assertions made by Defense counsel that most, if not all, of the witnesses who might be called upon to testify in this cause live in Hillsborough County, Florida, but did assert that, in the opinion of the Plaintiff’s attorney, this case will be disposed of through summary judgment proceedings and will not go to trial.
Based on the arguments of counsel presented at the hearing on the Defendant’s Motion, this Court finds that the County Court of Hillsborough County is an adequate alternative forum that possesses jurisdiction over this matter, that the private interests of the Plaintiff in choosing to file suit in Volusia County are outweighed by the public interests of having this suit determined by the courts of Hillsborough County, the county where the majority of the witnesses potentially involved in this case work and/or reside, and that the Plaintiff is not inconvenienced or prejudiced in a substantial manner by this change of venue because the Defense has agreed to pay all costs of refiling the case in Hillsborough County, Florida.
Because the Court is granting Defendant’s Motion to Transfer Venue, the Court takes no further action on the other claims raised in the Motion and will leave those issues to be resolved by the trial court judge assigned to hear this case in Hillsborough County.
Wherefore, it is ORDERED AND ADJUDGED that the above entitled cause is hereby transferred to the county court in Hillsborough County, Florida, for further proceedings and that the Defendant shall bear the costs associated with the refiling of this action in Hillsborough County.
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