22 Fla. L. Weekly Supp. 936a
Online Reference: FLWSUPP 2208BOONInsurance — Venue — Venue in action commenced under small claims rules is proper under those rules in county where payment is due — Where insurer has not established substantial inconvenience and legal issues are pending in case, motion to transfer venue is denied without prejudice to reasserting motion if factual issues remain after legal issues are resolved
EMERGENCY MEDICAL ASSOCIATES OF TAMPA BAY, L.L.C., (A/A/O LEILANI BOONE), Plaintiff, vs. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County, Civil Division. Case No. 2014-34231 COCI, Division 82. March 10, 2015. Honorable Angela A. Dempsey, Judge. Counsel: Wendelyn L. Gowen, Bradford Cederberg, P.A., Orlando, for Plaintiff. David R. Hwalek, Herssein Law Group, Tampa, for Defendant.
ORDER
THIS MATTER having come before this Honorable Court on Defendant’s Motion to Dismiss for Improper Venue, or in the Alternative, Motion to Transfer Venue to Hillsborough County, on March 4, 2015, and the Court being otherwise fully advised in the premises, it is hereby:
ORDERED AND ADJUDGED that:
1. Defendant’s Motion to Dismiss for Improper Venue is Denied.
2. This Court does not find that the Defendant waived its right to challenge venue given the Joint Stipulation entered into by the parties prior to the Pre-Trial Conference.
3. However, relying on Fla. Stat. §§68.093 (Florida Vexatious Litigant Law) and 45.21 (Applicability) as cited by Plaintiff’s counsel, venue is established at the point in time when suit is commenced. An action is commenced when the Complaint is filed. Based upon the amount at issue, this matter was commenced under the Florida Small Claims Rules. The Florida Small Claims Rule governed this matter until the Order invoking the Florida Rules of Civil Procedure was executed and entered on December 11, 2014.
4. This Court finds that at the point in time of the filing of the Complaint, venue was proper in Volusia County pursuant to Florida Small Claims Rule 7.060(a)7., which provides that “[i]n an action for money due, if there is no agreement as to where suit may be filed, where payment is to be made.” Relying on the Health Insurance Claim Form of the Plaintiff, this Court finds that pursuant to Box 33 of the Form, payment is due in Volusia County. This Court further finds that the damages at issue in this litigation are liquidated.
5. Defendant’s Motion to Transfer Venue to Hillsborough County is Denied Without Prejudice.
6. A plaintiff’s forum selection is presumptively correct. The 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. Safety Nat’l Cas. Corp. v. Florida Municipal Ins. Trust, 818 So. 2d 612 (Fla. 5th DCA 2002) [27 Fla. L. Weekly D1172c].
7. At this time, Defendant has failed to present sufficient evidence to establish a substantial inconvenience that would warrant transferring venue from Volusia County, Florida to Hillsborough County.
8. Additionally, legal issues should be resolved prior to transferring a case based upon Fla. Stat. 47.122. See Safety Nat’l Cas. Corp. Once legal issues are resolved, if factual issues remain at that time, the Defendant may again bring its Motion to Transfer Venue before this Court.
9. In light of the Court’s ruling on Defendant’s Motion to Dismiss for Improper Venue, or in the Alternative, Motion to Transfer Venue to Hillsborough County, Florida, Defendant is hereby ordered to file a responsive pleading no later than twenty (20) days from the date this Order is entered.
