22 Fla. L. Weekly Supp. 713b
Online Reference: FLWSUPP 2206REEDInsurance — Venue — Venue statute governing actions against corporations is not applicable to action against insurer who is reciprocal insurer, not corporation — Venue is proper in county where medical provider’s billing was generated and payment was due — Claims of inconvenience to insurer and witnesses do not support transfer of venue where case involves two legal issues that will not require witness testimony — Motion to transfer venue is denied
EMERGENCY PHYSICIANS, Inc. d/b/a EMERGENCY RESOURCES GROUP, as assignee of Terrence Reed, Plaintiff, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2014 32207 COCI, Division 84. December 12, 2014. Dawn P. Fields, Judge. Counsel: William England, Bradford Cederberg, P.A., Orlando, for Plaintiff. David R. Hwalek, Tampa, for Defendant.ORDER
THIS MATTER having come before this Honorable Court on Defendant’s Amended Motion to Dismiss, or in the Alternative, Motion to Transfer Venue and Plaintiff’s Response to Defendant’s Motion to Dismiss and 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. Defendant’s Amended Motion to Dismiss, or in the Alternative, Motion to Transfer Venue is hereby DENIED.
2. Venue is proper in Volusia County as it is undisputed that the Defendant, United Services Automobile Association, is not a corporation, but rather a “reciprocal insurer” as defined in Florida Statute §629.021. Thus, Florida Statute §47.051 does not apply to Defendant.
3. Plaintiff’s forum selection is proper as Plaintiff’s billing was generated and mailed from Volusia County, Florida and payment was due in Volusia County, Florida. “In a suit based on breach of contract, if the nature of the performance is the performance of the act of payment of money due or earned under the contract, then venue properly lies where payment was to occur.” Magic Wok International, Inc. v. Li, 706 So. 2d 372 (Fla. 5th DCA 1998) [23 Fla. L. Weekly D462a] (citing Windsor v. Migliaccio, 399 So. 2d 65 (Fla. 5th DCA 1981).
4. The plaintiff’s venue choice is presumptively correct, and a defendant bears the burden to prove that a trial in the county in which the action was filed would work a substantial inconvenience to it, and to witnesses. R.C. Storage One, Inc. v. Strand Realty, Inc., 714 So. 2d 634 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1775b]; Safety National Casualty Corporation v. Florida Municipal Insurance Trust, 818 So. 2d 612 (Fla. 5th DCA 2002) [27 Fla. L. Weekly D1172c].
5. Defendant’s affidavit presented to the Court is legally insufficient to support a transfer of venue as it does not establish that a trial in the county in which the action was filed would work a substantial inconvenience to it, and to witnesses, thus Defendant has failed to meet its burden.
6. The parties alleged that there are two dispositive legal issues in this matter that would be resolved by way of Summary Judgment. Defendant filed a Motion for Summary Judgment on August 15, 2014, challenging Plaintiff’s standing to bring suit and alleging that there were no genuine issues of material fact. Plaintiff argues that the other legal issue involves the Defendant’s application of Plaintiff’s timely submitted bill to the insured’s deductible in derogation of Florida Statute §627.736(4)(c).
8. Based upon the evidence before this Court, the parties arguments and conduct, the Court finds that this matter involves two legal issues to be decided by the Court and therefore witnesses will not be necessary to testify and cannot be considered to be substantially inconvenienced. See Safety National Casualty Corporation v. Florida Municipal Insurance Trust, 818 So. 2d 612 (Fla. 5th DCA 2002) [27 Fla. L. Weekly D1172c].
