22 Fla. L. Weekly Supp. 966a
Online Reference: FLWSUPP 2208HORNInsurance — Personal injury protection — Venue — Forum non conveniens — Where all aspects of PIP case occurred in, and all witnesses except medical provider’s director of billing are located in Pinellas County, and only link to Broward County is location of provider’s attorney, motion to transfer venue from Broward County to Pinellas County is granted
INJURY CENTERS OF ST. PETE, INC., a/a/o RICHARD HORNE, Plaintiff, v. MGA INSURANCE COMPANY, INC., Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 14-005060, Division 54. February 20, 2015. Stephen J. Zaccor, Judge. Counsel: Todd Landau, Landau & Associates, P.A., Hallandale Beach, for Plaintiff. Suzette M. Alfonso, Dutton Law Group, P.A., Pompano Beach, for Defendant.
ORDER DENYING DEFENDANT’S MOTIONTO DISMISS AND GRANTING DEFENDANT’SMOTION TO TRANSFER VENUE
THIS CAUSE having come before the Court on February 18th, 2015, on Defendant’s Motion to Dismiss or Transfer Venue and the Court having heard argument of counsel, having reviewed the court file, and being otherwise fully advised in the premises, makes the following findings of fact and conclusions of law:
1. This is a breach of contract lawsuit for unpaid P.I.P. benefits filed by the Plaintiff on March 7th 2014, in Broward County, Florida.
2. The Defendant filed its Motion to Dismiss or Transfer on March 15th, 2014.
3. In support of its Motion to Dismiss, the Defendant filed an affidavit by an adjuster in its employ on July 17th, 2014 which established:
a. The policy that is the subject of this lawsuit was issued to Richard Horne on September 2nd, 2011.
b. The policy was issued and delivered to Karen Horne in Pinellas County, Florida, where both Richard and Karen Horne reside.
c. One day after the policy was issued, Richard Horne was purportedly involved in an automobile accident where he suffered injuries.
d. Said accident was reported to the Defendant nineteen (19) days later.
e. No police, nor accident, report was presented to, or located by, the Defendant.
f. On September 22nd, 2011 Richard Horne sought medical care, diagnosis, or treatment form the Plaintiff’s facility located at 3140 34th Street North, St. Petersburg, Florida 33713, Pinellas County, Florida.
g. On January 31st, 2012 Richard Horne submitted to an Examination Under Oath which occurred in St. Petersburg, Florida.1
h. In an Examination Under Oath Richard Home denied receiving some of the treatments the Plaintiff attributed to him.
4. The Plaintiff filed an affidavit prepared by its Director of Billing which established:
a. The Plaintiff’s Director of Billing has “no issue with travelling to Broward County for trial or deposition.”
5. All aspects of this case occur in Pinellas County, Florida and the only link to Broward County, Florida is the Plaintiff’s lawyer.
6. Discovery was ongoing from April 2014 through December 2014.
7. A party may seek to transfer venue for the convenience of the parties, convenience of the witnesses, or in the interests of justice. Fla. Stat. 47.122 (2013). The paramount concern when determining whether to grant a motion pursuant to this section is the convenience of the witnesses. Universal Property & Casualty Insurance Co. v. Long, 40 Fla. L. Weekly D324a (2nd Dist. Ct. App. 2015). “The court must know who the witnesses are and the significance of their testimony in order to consider the convenience of the witnesses.” Hu v. Crockett, 426 So.2d 1275 (Fla. 1st DCA 1983).
8. Convenience of the Parties: The Plaintiff’s Director of Billing indicated it was not inconvenient for her to travel to Broward County for deposition or Trial.
9. Convenience of the Witnesses: Richard Horne and Karen Horne live in Pinellas County. There is a dispute as to the medical treatment Richard Horne actually received and what the Plaintiff billed for. There are also allegations of fraud based upon when the policy was issued, when the accident occurred, and when the accident was reported to the defendant.
10. Dr. Richard Hockman performed the Independent Medical examination and he is from Pinellas County. St. Petersburg Police Dept. employees or staff will testify as to the existence, or lack thereof, of a call for service or accident report. Finally, physicians or personnel from the Plaintiff facility will testify as to what treatment Richard Horne actually received vis-a-vis what was actually billed.
11. Broward County is clearly not a convenient forum for the aforementioned witnesses. There are no witnesses from, or near, Broward County.
12. Interests of Justice: This prong suggests transfer is appropriate. All aspects of this case stem from Pinellas County. The only link to Broward County is the Plaintiff’s attorney. Location of an attorney is not sufficient to defeat a motion to transfer. Pep Boys v. Montilla, 62 So.3d 1162 (Fourth Dist. Ct. App. 2011) [36 Fla. L. Weekly D1171a].
13. Pep Boys concerns a wrongful death lawsuit where the accident occurred in Sarasota County. Id. Suit was filed in Broward County and the Defendant moved to transfer the case to Sarasota. Id. The only link to Broward was the Plaintiff’s Attorney and the fact that the alleged defective tire was sold and installed in Broward County. Id at 1166. The trial court denied transfer and the District Court reversed. Id at 1167.
14. There is less of a connection to Broward in the present case. Furthermore, “Broward County is a larger, more populous county, has crowded dockets, and the community has virtually no connection to the case.” Id at 1166.
15. Plaintiff avers that the Defendant’s motion should fail due to the delay in hearing the motion. That is not one of the three factors set forth in Fla. Stat. 47.122. Universal Property and Casualty Insurance v. Long, 40 Fla. L. Weekly D324a (2nd Dist. Ct. App. 2015). In Universal, the Motion to Transfer was heard eighteen (18) months after the complaint was filed and the case was trial ready. Id. The trial court denied the motion to transfer on those grounds without weighing the factors in 47.122. Id. The district court found error in the trial court’s decision and reversed. Id.
16. After balancing all three of the factors in Fla. Stat. 47.122, this Court finds the Defendant’s Motion to Transfer to be well taken.
Therefore, it is:
ORDERED AND ADJUDGED that the Defendant’s Motion to Dismiss is hereby DENIED, The Defendant’s Motion to Transfer Venue is hereby GRANTED and this cause shall be transferred to a court of proper jurisdiction in Pinellas County, and Defendant shall pay the transfer fee pursuant to Fla. Stat. 47.091. The transfer fee shall be paid by the Defendant within thirty (30) days of this order, otherwise the Defendant’s Motion shall be denied.
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1The date and location of the Examination Under Oath are not referenced in the affidavit, but are substantiated by the EAU which was electronically filed by the Defendant with the Court July 8th, 2014.
