24 Fla. L. Weekly Supp. 693b
Online Reference: FLWSUPP 2409MELOInsurance — Personal injury protection — Venue — Where insurer does not maintain office in Orange County, and cause of action accrued in Ohio where medical provider demanded that payment to be sent, venue is not proper in Orange County — Case to be transferred to county where insurer maintains office
FLORIDA INJURY EAST, INC., a/a/o Melo, Ashley, Plaintiff, vs. WINDHAVEN INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2016-CC-001356-O. September 19, 2016. Tina Caraballo, Judge. Counsel: Annette Castillo, Orlando, for Plaintiff. John Mollaghan, Tampa, for Defendant.
ORDER ON DEFENDANT’S MOTION TO DISMISSOR IN THE ALTERNATIVE TO TRANSFER VENUE.
THIS CAUSE, having come before the Court, and the Court having heard arguments of both parties’ counsel, and the Court being advised in the premises, it is hereby:
ORDERED AND ADJUDGED that:
1. Defendant’s Motion to Dismiss or in the Alternative to Transfer Venue be granted.
2. Venue is proper under Fla Stat. 47.051 only where the cause of action arose, where the property in litigation is located, or where the corporation has an office to transact business.
3. Plaintiff alleges in that this matter that the cause of action is a breach of contract. Plaintiff alleges that Defendant failed to reimburse Plaintiff the Personal Injury Protection benefits due under a contract of insurance issued to Ashley Melo for medical services allegedly provided.
4. Parties agree that Windhaven does not maintain an office in Orange County. Defendant filed the certificate of incorporation, and an affidavit attesting that Windhaven is a domestic corporation with an office to transact its regular business in Hillsborough County.
5. Therefore, Court agreed that Plaintiff failed to establish that Windhaven resided in Orange County because Defendant does not maintain an office in Orange County. Plaintiff’s allegations concerning the presence of agents or Defendant doing business in Orange County are not relevant to the question of Venue. Since Defendant is a domestic corporation then “(d)oing business in a county or having an agent in a county, without more, is not a sufficient basis for venue in a suit against a domestic corporation.” Sunshine State Ins. Co. v. Munoz-Upton, 127 So. 3d 822, 824 (Fla. 3d DCA 2013) [38 Fla. L. Weekly D2514a]. Rather, “(t)he appropriate test is whether venue has been lodged in the county where the domestic corporation has an office for transaction of its customary business.” Id.
6. Furthermore, as Parties agreed that there is no property in litigation, then the sole question before the Court was to whether the alleged breach occurred in Orange County.
7. Defendant maintained that as Plaintiff pled breach of contract as the cause of action, specifically failure to pay the PIP benefits, then the cause of action occurred where Plaintiff demanded said payment. Plaintiff demanded payment in box 33 of the HICFA in Cincinnati, Ohio. Therefore, Defendant allegedly breached by failing to perform when Defendant failed to send the payment to Cincinnati, Ohio.
8. Plaintiff argued the breach occurred in Orange County. Plaintiff attested that Plaintiff provided the services in Orange County, created the bill in Orange County, and the payments were remitted to Orange County from Ohio, which merely processed payments.
9. The Court ruled that the breach occurred in Cincinnati, Ohio. “A breach occurs where the failure of performance occurred.” Blackhawk Quarry Co. of Florida, Inc. v. Hewitt Contracting Co., Inc., 931 So. 2d 197, 200 (Fla. 5th DCA 2006) [31 Fla. L. Weekly D1595a].
10. The Court found that as Plaintiff demanded payment in box 33 of the HICFA in Cincinnati, then Plaintiff expected the performance, the payment, to occur in Ohio. “Since the alleged failure occurred in Brevard County, the cause of action accrued there.” Id.
11. Consequently, Defendant properly rebutted the presumptive of correctness of Plaintiff’s venue. Defendant established by affidavit that Windhaven, as a domestic corporation without an office in Orange County, does not reside in Orange County. Parties agreed that no property was in litigation. The Court ruled that breach allegedly occurred in Ohio, not Orange County, because Plaintiff demanded payment, the performance allegedly due under the contract, in Ohio. Therefore, venue was not proper in Orange County.
12. Consequently, the Court ordered that the matter be transferred to Hillsborough County, because Defendant maintains an office there that satisfies the requirements of Fla. Stat. 47.051. Furthermore, per Fla. Stat. 47.091, Plaintiff will pay the filing fee required to transfer the matter to Hillsborough County.
