19 Fla. L. Weekly Supp. 1053a
Online Reference: FLWSUPP 1913BIANInsurance — Venue — Forum non conveniens — Trial court did not depart from essential requirements of law in denying without prejudice insurer’s motion to transfer venue from Miami-Dade County to Hernando County where, although insurer alleged without dispute that more witnesses and documents were located in Hernando County, insurer, which was located in Miami-Dade County, cannot claim inconvenience or tactical disadvantage in forum selected by plaintiff
STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Appellant(s), vs. PETER J. DORAN, D.C., P.A., A/A/O JAMIE LO BIANCO, Appellee(s). Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 10-158 AP & 10-173AP. L.C. Case No. 2009009341SP26. September 12, 2012.
ORDER GRANTING APPELLANT’SMOTION FOR REHEARING
[Original Opinion at 19 Fla. L. Weekly Supp. 905b]
We grant the Appellant’s unopposed motion for rehearing, withdraw our previously issued opinion, and substitute the following in its place.
(HIRSCH, Judge.) State Farm Mutual Automobile Insurance Co. (hereinafter “State Farm”), defendant below in a lawsuit brought for insurance benefits by Dr. Peter J. Doran a/a/o Jamie Lo Bianco, seeks certiorari review of the county court’s order denying a motion to transfer venue. The parties, in their excellent briefs, describe the issue before this court as one of the interpretation of forum non conveniens.
The doctrine of “forum non conveniens” is alleged to be indigenous to Scotland. See, e.g., Sim v. Robinow, 1892 Sess. Cas. 665 (Scot. 1st Div.). It was transplanted from “Caledonia, stern and wild”1 to the balmier climes of the Sunshine State only recently, and only with difficulty. It does not appear in Florida jurisprudence until 1952, in Atlantic Coast Line R. Co. v. Wood, 58 So.2d 549 (Fla. appear in Florida jurisprudence until 1952, in Atlantic Coast Line R. Co. v. Wood, 58 So.2d 549 (Fla. 1952); and even then it is referenced not in connection with a Florida statute but with a federal statute. Florida cases in which the doctrine of forum non conveniens was mentioned in the ‘50’s and even into the ‘60’s construed federal, not Florida, law. See, e.g., Southern Ry. Co. v. McCubbins, 196 So.2d 512 (Fla. 3d DCA 1967); Atlantic Coast Line R. Co. v. Ganey, 125 So.2d 576 (Fla. 3d DCA 1960); Greyhound Corp. v. Rosart, 124 So.2d 708 (Fla. 3d DCA 1960).
The watershed exegesis of forum non conveniens as part of Florida jurisprudence does not appear until Kinney System, Inc. v. Continental Ins. Co., 674 So.2d 86 (Fla. 1996) [21 Fla. L. Weekly S43a]. Kinney arose out of a dispute over workers compensation insurance premiums. Id. at 87. The contract for the insurance had been negotiated in New York, and provided coverage for Kinney employees in several states, including Florida. Kinney was a Delaware corporation with corporate headquarters in New York; Continental was a New Hampshire corporation with headquarters in New Jersey; both entities had offices, and did business, in South Florida. Id. Based on these relatively lambent connections to Florida, Continental brought its suit against Kinney in circuit court here. Id.
In determining that the trial judge had acted properly in dismissing on forum non conveniens grounds, the Florida Supreme Court explained:
Forum non conveniens is a common law doctrine addressing the problem that arises when a local court technically has jurisdiction over a suit but the cause of action may be fairly and more conveniently litigated elsewhere. Forum non conveniens also serves as a brake on the tendency of some plaintiffs to shop for the “best” jurisdiction in which to bring suit — a concern of special importance in the international context. Commentators generally have noted a growing trend in private international law of attempting to file suit in an American state even for injuries or breaches that occurred on foreign soil. There already is evidence the practice is growing to abusive levels in Florida.
Id.; see also Rosart, 124 So.2d at 711 (finding that forum non conveniens is “an equitable doctrine exercised by a court to prevent the imposition upon its jurisdiction of the trial of causes of action when the court determines that for the convenience of the litigants and witnesses, and in the interest of justice, the action should be instituted in another forum”). The Supreme Court drafted and appended to its Kinney opinion new Fla. R. Civ. Pro. 1.061, Forum Non Conveniens, the first formal codification of the doctrine in Florida law.2
As both Kinney and Rule 1.061 make clear, forum non conveniens may be applicable when a civil lawsuit brought in Florida ought to be litigated in another country or another state. Although there is “a strong presumption against disturbing plaintiffs’ initial forum choice,” Rule 1.061(a)(2), the application of forum non conveniens serves two purposes. First, it reduces undue financial and other burdens associated with the production of witnesses and evidence in far-off courthouses. More importantly, however, it prevents the exploitation of the scarce resources of American civil justice systems by private parties whose grievances may have little to do with events occurring in America; and the exploitation of the scarce resources of the Florida civil justice system by private parties whose grievances may have little to do with events occurring in Florida. As the Kinney court noted, “American states are attractive” to litigants trolling for venues “because of more liberal discovery rules, a perception of more generous juries, and the ability to obtain lawyers on a contingent-fee basis” — desiderata not necessarily available in foreign jurisdictions. Kinney, 674 So.2d at 96, n.4.
What is clear from both Kinney and Rule 1.061 is that the doctrine of forum non conveniens, whether in its common-law iteration or its statutory codification, concerns itself with causes of action arising in another state or country, not with causes of action arising in another Florida circuit or county. With respect to choices of venue within the Florida civil justice system, the “forum-shopping” concerns identified in footnote 4 of Kinney — the seeking out of preferential discovery rules, of a tradition of large jury awards, of contingent legal fee arrangements, and the like — are not applicable, or are at least greatly reduced in their impact. A cause of action filed in Hernando County, Florida, and a cause of action filed in Miami-Dade County, Florida, will be litigated pursuant to the same rules of civil procedure, the same evidence code, the same rules of judicial administration. A judge in Hernando County and a judge in Miami-Dade County likely attended the same Florida judicial college, and will certainly cite the same Florida statutes and Florida Supreme Court opinions in reaching their legal conclusions. Thus Florida appellate courts have uniformly concluded that forum non conveniens does not apply to applications for transfer of venue within the state of Florida. See, e.g., American Suzuki Motor Corp. v. Friese, 956 So.2d 495, 497 (Fla. 4th DCA 2007) [32 Fla. L. Weekly 1024a] (“We accordingly agree with the First and Second Districts that Kinney and Rule 1.061 do not apply to intrastate transfers”). Whatever the present case is about, it is not about forum non conveniens.
It follows that, were there no Florida statute authorizing the transfer of a lawfully-venued civil case to another, more convenient venue within Florida, courts could not order such a transfer. In Atlantic Coast Line Railroad Co. v. Ganey, the court held that,
The appellant here has conceded that venue was proper in this case and our research has not disclosed, nor has the appellant informed us of[,] any Florida statute granting the power to transfer or dismiss a cause of action for considerations involving trial.
Ganey, 125 So.2d at 579.
Since that time, however, the Florida legislature has enacted section 47.122, Florida Statutes, which provides that, “[f]or 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.” Pursuant to that statute, State Farm, on Dec. 17, 2009, moved for transfer of the cause from Miami-Dade County to Hernando County (R. at 22) alleging that the conduct at issue had occurred, and most of the witnesses and records were to be found, in Hernando County (R. at 22-3, ¶¶2, 3, and 4; see also R. at 31 et. seq. (affidavit and attachments in support of motion to transfer venue)).
Beginning the following month, however, the litigants’ attention turned away from the issue of venue and focused instead on cross-litigation of summary judgment claims. Cf. (R. at 39 et. seq.) (Defendant’s motion for summary judgment) with (R. at 180 et. seq.) (Plaintiff’s motion for summary judgment and memorandum of law in opposition to Defendant’s motion for summary judgment). No further briefing on the venue issue appears in the record of the proceedings below. While cross-motions for summary judgment were pending, however, the county court (Gonzalez-Meyer, J.), on March 18, 2010, entered an order providing only that State Farm’s venue motion was “denied without prejudice.” The present petition for certiorari seeks relief from that order. (Pet. for Writ of Certiorari of State Farm 1.)
At the time she denied the venue motion, the trial judge was aware of State Farm’s undisputed allegation that most of the witnesses and records relevant to the case were to be found in Hernando County. No doubt that factor weighed in favor of the granting of transfer; and would have weighed more had the case been approaching a trial posture. By the same token, the trial judge was also aware that the defendant was located in Miami, and thus could hardly claim any inconvenience or tactical disadvantage from being made to litigate in its own backyard. And given the extensive pretrial motion practice — motion practice that turned more upon issues of law than upon issues of fact, and thus demanded the time and presence of lawyers, rather than of witnesses — the trial court may have given some weight to the fact that Plaintiff’s counsel is located in Broward County and Defendant’s counsel in Miami-Dade County. Of course this last factor would be of ever-decreasing importance had the case proceeded to deposition practice and to trial, but at the time that the trial judge denied the venue motion “without prejudice,” State Farm had moved to stay all discovery. (R. at 29.)
Appellees in Regions Financial Corp. v. Mercenari et. al., 78 So.3d 1 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D1910b] were Miami residents who invested in condominiums in Panama City Beach, Bay County, Florida. Id. at 1. They later had occasion to sue Regions for the “wrongful disbursement of a portion of” their “deposits held in escrow by Regions” in connection with the purchase of the condos. Id. They brought suit in Miami-Dade County. Regions moved to transfer venue to Bay County, alleging that the lion’s share of witnesses resided in Bay County or thereabouts. Id. The trial court denied the motion. On direct appeal the Third District, citing the strong presumption in favor of a plaintiff’s choice among lawful venues, concluded simply, “The trial court reviewed the complaint, Regions’ motion and attached affidavits, and considered the argument of counsel. Based on the record now before us, we cannot conclude that the trial court abused its discretion.” Id. at 2.
We are even more favorably situated than was the Third District in Regions to approve the conduct of the trial court below. The factual similarities between the two cases are apparent; but Regions involved a direct appeal, thus requiring the reviewing court to determine if the trial court had abused its discretion. The case at bar involves a petition for writ of certiorari, thus requiring us to determine if the trial court went so far as to depart from the essential requirements of law and wreak irreparable injury upon the petitioner. State Farm’s counsel explains the distinction with candor and accuracy:
In the context of section 47.122, Florida Statutes, which is the issue here, there is no district court decision addressing either a departure from the essential requirements of law or irreparable harm. This is so because the cases are all decided under the umbrella of Florida Rule of Appellate Procedure 9.130.
In other contexts, however, Florida’s courts have established that certiorari relief requires a showing that the challenged order constitutes a departure from the essential requirements of the law that will cause material injury throughout the proceedings and cannot be remedied on plenary appeal.
(Pet. for Writ of Certiorari of State Farm 8 (citing Sheridan Healthcorp, Inc. v. Total Health Choice, Inc., 770 So.2d 221, 222 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D2503b]).
The question before us, then, is not whether we, as an original matter, would have decided the venue issue as the trial judge did or otherwise. The question is not even whether the trial judge abused her discretion in deciding it as she did. Rather, the question is whether the trial judge erred so grossly that her ruling constitutes a departure from the most essential requirements of the law and will cause irremediable and material prejudice to State Farm. We cannot find that exacting standard to be met here. On the contrary; the record, sparse as it is, appears to support the trial judge’s ruling.
Certainly State Farm is correct in pointing out that there are more witnesses and relevant documents to be found in Hernando County than there are in Miami-Dade County. That factor alone, however, is insufficient to dismast the strong presumption in favor of the plaintiff’s choice of venue. And as noted supra, there are other factors at work here. Had Dr. Doran filed suit in Hernando, State Farm would have born the burden of travel and expense associated with litigating at some distance from its Miami office and that of its attorneys. As a result of Plaintiffs filing suit in Miami-Dade County, State Farm has “home field advantage;” in the event of trial, Dr. Doran, his witnesses, and his business records, will all have to travel to Miami to pursue this case. And we note with emphasis that the trial court’s denial of State Farm’s venue motion was “without prejudice.” We infer from this that if the case is not ultimately resolved by final summary judgment — if it becomes necessary for the parties to engage in extensive deposition practice, perhaps even to go to trial — then the trial court may choose (and at that point will certainly be in a better, more informed position) to reconsider the issue of venue.3 (WALSH, GORDO, and HIRSCH, JJ.)
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1[Editor’s note: Footnote 1 is missing from the court’s slip sheet.]
2The present version of Rule 1.061 is captioned “Choice of Forum,” but is substantially similar to the draft rule appended to Kinney.
3We do not, by this simple observation, mean in any way to suggest how the trial court should resolve a renewed venue motion that may or may not be made at some future point in the litigation.
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