22 Fla. L. Weekly Supp. 1104a
Online Reference: FLWSUPP 2209BROOInsurance — Personal injury protection — Venue — For purposes of application of venue statute, reciprocal insurer resides in county where its attorney in fact has office — No merit to argument that reciprocal insurer may be sued in every county where a subscribing member insurer resides
EMERGENCY PHYSICIANS, INC. d/b/a EMERGENCY RESOURCES GROUP, as Assignee of Deshawn Brooks, Plaintiff, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 2014-SC-2540. April 6, 2015. Jerri L. Collins, Judge.
ORDER
THIS CAUSE comes before the Court on Defendant’s Motion to Dismiss for Improper Venue, or in the Alternative to Transfer Venue to Duval County and the Court having reviewed the complete record, applicable statutory and case law, hereby finds as follows:
The Plaintiff, a healthcare provider, filed this action in Seminole County, Florida, seeking Personal Injury Protection benefits for treatment rendered to Deshawn Brooks as assignor. The Defendant filed an affidavit of Patricia Leistner stating that services for treatment were rendered in Duval County, the breach of contract occurred in Duval County and Plaintiff’s principle place of business is in Duval County. The Defendant asserts that their office is in Hillsborough County and as a result of all the facts, venue is improper in Seminole County.
Both parties agree on two important facts. First, that USAA is not a corporation, but a “reciprocal insurer” as defined in Florida Statute 629.021.
“A ‘reciprocal insurer’ means an unincorporated aggregation of subscribers operating individually and collectively through an attorney in fact to provide reciprocal insurance among themselves.”
Secondly, they are in agreement that Florida Statute 47.011 is the proper statute to decide venue. It states:
“Actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in ligation is located.”
Plaintiff argues that venue is proper in Seminole County and should not be disturbed because USAA “resides” in Seminole County. They argue that USAA is an association made up of members or subscribers living in every county in Florida and because of this fact, the defendant may be sued in any county where a member/subscriber resides. They cite several federal cases dealing with diversity jurisdiction to support this position. The cases cited by Plaintiff, Baer v. United Services Auto. Ass’n., 503 F.2d 393 (2d Cir. 1974); Tuck v. United Services Auto. Ass’n., 859 F.2d 842 (10th Cir. 1988), both point to the well-established rule in federal court that for purposes of diversity jurisdiction, unincorporated associations are considered citizens of each and every state in which they have members. However, this Court does not find this case law persuasive. There are important distinctions between federal diversity jurisdiction and Florida’s venue statue. Florida’s venue statute does not rest upon how a citizen is defined which was the basis of the federal cases cited by the Plaintiff.
The Florida’s venue statute speaks of bringing suit in “the county where the defendant resides.” To determine where USAA “resides” the Court must review the definition of a reciprocal insurer as outlined in Florida Chapter 629. According to the statute, it is an unincorporated aggregation of subscribers operating individually and collectively through an attorney in fact. The reciprocal insurer operates through an attorney in fact and through this attorney has the right to sue and be sued. So while it is an aggregation of subscribers, the members do not, nor are they authorized, to conduct the business of the reciprocal insurer. It is the proposed attorney in fact who files the requisite documentation with the State to obtain a certificate of authority and the certificate of authority is issued to the attorney in the name of the insurer. Additionally, Fl. Stat. 629.081(2)(b) sets forth the location of the insurer’s principal office, which shall be the same as that of the attorney. This Court finds that the statute gives a reciprocal insurer a “legal personhood” to determine where the Defendant resides and it is tied to the attorney in fact. Based upon a complete reading of Chapter 629 and Fl. Statute 47.011, this Court finds that USAA resides in Hillsborough County.
It was argued by Plaintiff that the Defendant’s position is similar to a partnership. “At common law, unincorporated associations were treated as partnerships. A partnership (and therefore an unincorporated association) could sue and be sued only in the name of its members, not in the name of the partnership.” Asociacion De Perjudicado Por Inversiones Efectuadas En U.S.A. v. Citibank, 770 So.2d 1267 (Fla. 3d. DCA 2000) [25 Fla. L. Weekly D2652c]. However, this Court finds that the language of Chapter 629 is in direct conflict and gives reciprocal insurers the right to sue and be sued in its own name and precludes suits against its individual members except in limited liability post judgment matters.
Given that it is the entity, USAA, being sued and not its individual members, and it will be the entity, not the individual members who will defend this action, it is illogical to find venue where every member resides. Venue is not proper in Seminole County.
Accordingly, it is
ORDERED AND ADJUDGED the Clerk of the Circuit Court for Seminole County is directed to transfer jurisdiction and venue for this case for disposition to the County Court of the Fourth Judicial Circuit in and for Duval County, Florida, and to include all pleadings filed in this case, and a certified copy of this order.
It is further ORDERED AND ADJUDGED that the Clerk of Court shall close this case, Case No. 14-SC-1971.
