22 Fla. L. Weekly Supp. 1073a
Online Reference: FLWSUPP 2209EMERInsurance — Venue — Under small claims rules applicable at time suit was filed, venue is proper in county where payment is to be made — Court is not barred by hearsay rule from considering claim form as evidence of where payment is to be made — Insurer has not established substantial inconvenience or undue expense warranting transfer of venue
EMERGENCY MEDICAL ASSOCIATES OF TAMPA BAY, L.L.C., as assignee of Maximilian Galindo, Plaintiff, v. USAA GENERAL INDEMNITY COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2014 31127 COCI, Division 82. March 24, 2015. Angela A. Dempsey, Judge. Counsel: Robert D. Bartels, Orlando, for Plaintiff. David R. Hwalek, Tampa, for Defendant.
ORDER
THIS MATTER having come before this Honorable Court on Defendant’s Motion to Dismiss or in the alternative, Motion to Transfer Venue and this Honorable Court having heard arguments of counsel and being otherwise fully advised in the premises, it is hereby,
ORDERED AND ADJUDGED that:
1. 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 Rules governed this matter until the Order invoking the Rules of Civil Procedure was executed in this matter.
2. 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.”
3. Defendant argues that this Court cannot consider Plaintiff’s CMS-1500 bill when determining where payment is the be made on the basis of hearsay. This Court disagrees. Pursuant to A.J. v. State, 677 So.2d 935 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1677e], Plaintiff’s bill is prima facie evidence of a “reasonable charge”, which can be accepted, rejected, or not disputed. Defendant’s Explanation of Review demonstrates that the neither the charge nor services were disputed by Defendant, but rather deemed compensable and applied to the insured’s deductible. As such, the CMS-1500 bill and Explanation of Review are words of a contract and thus they are non-hearsay because they have independent legal significance for which the law attaches duties and liabilities. Id.
4. 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. 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. Cas. Corp. v. Florida Mun. Ins. Trust, 818 So.2d 612 (Fla. 5th DCA 2002) [27 Fla. L. Weekly D1172c]
6. At this time, Defendant has not submitted sufficient evidence to establish a substantial inconvenience that would warrant transferring venue from Volusia County, Florida to Hillsborough County, Florida
7. Additionally, legal issues should be resolved prior to transferring a case based upon Fla. Stat. 47.122, Safety Nat. Cas. Corp. v. Florida Mun. Ins. Trust, 818 So.2d 612 (Fla. 5th DCA 2002) [27 Fla. L. Weekly D1172c]. 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.
8. Defendant’s Motion to Dismiss is MOOT as withdrawn by Defendant.
9. Defendant’s Motion to Transfer Venue to Hillsborough County is Denied Without Prejudice.
