23 Fla. L. Weekly Supp. 286a
Online Reference: FLWSUPP 2303FOXInsurance — Personal injury protection — Venue in medical provider’s action against PIP insurer that is domestic corporation is proper either in county where insurer has office for transaction of its customary business or in county where payment was to be made to provider and cause of action accrued — Fact that insurer conducts business in a county through agents is not sufficient basis for venue where insurer is domestic, not foreign, corporation — Motion to transfer venue is granted
ORTHOPEDIC CENTER OF PALM BEACH COUNTY INC, a/a/o James Fox, Plaintiff, vs. MERCURY INSURANCE COMPANY OF FLORIDA, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. CONO 14-4303(72), May 1, 2015. Honorable Jill K. Levy, Judge.
ORDER ON DEFENDANT’SMOTION TO TRANSFER VENUE
THIS CAUSE having come before the Court on Defendant’s Motion to Transfer Venue, and the Court having heard argument of counsel, having reviewed the Court file and relevant case law, makes the following findings:
1. Plaintiff, Orthopedic Center of Palm Beach County, Inc., (“ORTHOPEDIC”) filed its PIP action against Defendant, Mercury Insurance Company of Florida (“MERCURY”) on April 18, 2014. In its Answer and Affirmative Defenses, MERCURY listed Improper Venue as an affirmative defense, thereby preserving said defense.
2. A hearing was held on April 16, 2015 on MERCURY’s Motion to Transfer Venue with accompanying affidavit of Melitza Ramirez which states that MERCURY is a domestic Florida corporation with its principal place of business in Pinellas County, Florida. MERCURY only transacts its customary business in Pinellas County as well. Further, while it has independent agents in Broward County and throughout the State of Florida, they are agents who sell their insurance policies along with other companies’ policies and are not employees of defendant. The medical services in the instant case were provided by ORTHOPEDIC in Palm Beach County which is where ORTHOPEDIC maintains its office. Palm Beach County is where payment was to be issued, which MERCURY argues is where the cause of action accrued.
3. ORTHOPEDIC argues that MERCURY has insurance agents statewide, including Broward County, who issue MERCURY policies and therefore venue is proper in Broward County.
4. “A plaintiff has the prerogative to select venue, and as long as that selection is one of alternatives provided by statute, it should not be disturbed.” Florida Gamco, Inc. v. Fontaine, 68 So.3d 923 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1749a], R.C. Storage One, Inc. v. Strand Realty, 714 So.2d 634 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1775b] The Plaintiff’s selection of venue is presumptively correct and the party challenging venue has the burden to demonstrate impropriety of plaintiff’s choice. Florida Forms, Inc. v. Barkett Computer Services, Inc. 311 So.2d 730 (Fla. 4th DCA 1975).
5. With respect to a suit filed against a domestic corporation, Florida Statute §47.051 provides in pertinent part that “Actions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located”. It is only one of these three places where venue is proper.
6. This Court recognizes that other county courts in Broward County have found that in lawsuit for unpaid PIP benefits, venue is proper in any county. See Health Diagnostics of Miami, LLC. v. United Automobile Ins. Co., 20 Fla. L. Weekly Supp. 152b (Broward Cty. Ct. 2012), Tallahassee MRI, P.A. [v. Progressive Express Insurance Company], 11 Fla. L. Weekly Supp. 68c (Broward Cty Ct. 2003).
7. In regards to the first venue option under F.S. §47.015, “A corporation in Florida resides where it has an office for transaction of its customary business. ‘Doing business’ is not the test. Doing 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, as opposed to a foreign corporation.” Gameco at 928, supra citing Am. Vehicle Inc. Co. v. Goheagan, 35 So. 3d 1001 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D1171a]. The method of conducting business through as agent does not make venue proper in an action against a domestic corporation wherever such agents are located because “the statutory provisions concerning an agent apply to foreign corporations only.” Sunshine State Insurance Co. v. Munoz-Upton et al., 127 So. 3d 822 (Fla. 3d DCA 2013) [38 Fla. L. Weekly D2514a].
8. In regard to the second venue option per F.S. §47.015, it is undisputed that the cause of action accrued in Palm Beach County. The instant action is based upon breach of contract. A cause of action on a contract accrues for venue purposes where the breach of that contract occurs, and if a contract involves performance, the breach occurs where the defaulting party fails to perform an act that it has agreed to. Koslow v. Sanders, 4 So.3d 37 (Fla.2d DCA 2009) [34 Fla. L. Weekly D345a]. The breach in this case is where payment was to be made, at ORTHOPEDICS office in Palm Beach County.
9. In regard to the third venue option per F.S. §47.051, there was no argument made by the moving party as to where the property in litigation was located. Therefore, the Court will not address this venue option.
10. The Court finds that MERCURY has sufficiently challenged venue with its affidavit controverting ORTHOPEDICS venue allegation. The burden is then upon the Plaintiff to prove that the selection of venue is proper which the Court finds that burden was not met. It is therefore,
ORDERED AND ADJUDGED that Defendant’s Motion to Transfer Venue is GRANTED. Venue shall be transferred to Palm Beach County where the cause of action accrued.
