23 Fla. L. Weekly Supp. 374a
Online Reference: FLWSUPP 2304JMARInsurance — Personal injury protection — Small claims — Venue — Where insurer failed to timely raise its challenge to venue under requirements of small claims rules, insurer waived any future challenges to venue — Invocation of rules of civil procedure at pre-trial conference applied only to proceedings subsequent to pre-trial conference and did not provide insurer with additional opportunity to object to venue
SUNSET RADIOLOGY, INC., a/a/o JAVIER MARTINEZ, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 15-004242 COWE (80). July 28, 2015. Honorable Eric Beller, Judge. Counsel: Kelly M. Arias and Jeffrey C. Hagans, The Arias Law Group, P.A., Hollywood, for Plaintiff. Jennifer Lucy, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TODISMISS FOR IMPROPER VENUE
THIS CAUSE having come on to be heard on July 27th, 2015 on Defendant’s Motion to Dismiss for Improper Venue and the Court having heard argument of counsel, having reviewed the Court file, and being otherwise advised in the Premises, it is hereupon ORDERED AND ADJUDGED as follows:
1. The above-captioned matter arises out of a claim for unpaid personal injury protection benefits properly filed by the Plaintiff under the Florida Small Claims Rules on March 6th, 2015.
2. Pursuant to Fla. Sm. Cl. R. 7.090, a pretrial conference occurred on April 8th, 2015.
3. Defendant filed its motion to dismiss for improper venue on April 20th, 2015.
4. It is well settled in Florida that when an action is filed in small claims court, the Florida Small Claims Rules govern and “shall be construed to implement the simple, speedy, and inexpensive trial of actions at law in county courts.”1
5. Regarding the applicability of the Florida Rules of Civil Procedure, Fla. Sm. Cl. R. 7.020(c) states as follows:
Additional Rules. In any particular action, the court may order that action to proceed under 1 or more additional Florida Rules of Civil Procedure on application of any party or the stipulation of all parties or on the court’s own motion.
6. Even though the rules of civil procedure may have been invoked at the pretrial conference on April 8th, 2015, those rules would apply to proceedings subsequent to the pre-trial conference (i.e., the date that the rules were invoked).
7. A Court order applying the rules of civil procedure should not be construed to provide the Defendant with an additional opportunity to object to venue.
8. The unambiguous language of Florida Small Claims Rule 7.060, provides that for a Defendant to properly preserve its “right to request that the case be moved to a proper location or venue” the Defendant MUST do 1 of 2 things: Either (1) appear at the pretrial conference and orally request a transfer or (2) file a written request for transfer in affidavit form (sworn to under oath) with the court 7 days prior to the first court date and send a copy to the plaintiff’s attorney.
9. Failure to comply with either of the two options set forth above results in the venue issue being waived.2
10. Applying this to the facts of the case at bar, to properly preserve a challenge to the choice of venue, Defendant was required to either file a written request for transfer in affidavit form (sworn to under oath) with the Court no later than 7 days prior to the pretrial conference and send a copy to the plaintiff’s attorney OR Defendant was required to appear at the pre-trial conference and orally request a transfer at that time.
11. At the hearing on Defendant’s motion to dismiss for improper venue, Defendant was unable to present any record evidence demonstrating that it timely complied with either of the two requirements set forth above.
12. Since Defendant failed to abide by the Florida Small Claims Rules by not timely raising its challenge to venue within the appropriate time, it has waived any future challenges to venue in this case.
13. As such, Defendant’s motion to dismiss for improper venue is denied.
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1Fla. Sm. Cl. R. 7.010(a).
2See Sargent v. Williams, 15 Fla. L. Weekly Supp. 346a (Fla. 20th Jud. Cir. Appellate 2007) (holding that the failure to comply with Small Claims Rule 7.060 results in the right to object to venue being waived.); Eastside Chiropractic Center, Inc. (a/a/o Regina Eure) v. United Auto. Ins. Co., Case No. 09-011906CONO 73 (Fla. Broward Cty. Ct. 2010) [18 Fla. L. Weekly Supp. 692a]; Inverness Coca-Cola Bottling Co. v. McDaniel, 78 So. 2d 100, 102 (Fla. 1955) (stating that “A venue objection may be waived, and if not timely or sufficiently asserted it is the defendant who must bear the consequences.”).
