24 Fla. L. Weekly Supp. 173a
Online Reference: FLWSUPP 2402ALTLInsurance — Automobile — Windshield repair — Motion to dismiss count seeking declaration as to interpretation and implementation of policy term “prevailing competitive price” is denied — Motion to dismiss count for breach of insurance contract is denied — Motion to transfer venue is denied where supporting affidavit does not present sufficient information to enable court to properly weigh convenience of key witnesses
BROWARD INSURANCE RECOVERY CENTER, LLC a/a/o KRISTY ALTLAND, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 14-005032 COWE 82. May 3, 2016. Alan R. Marks, Judge. Counsel: Andrew B. Davis-Henrichs and Emilio R. Stillo, Pliego & Stillo, P.A.,Davie; and Lawrence M. Kopelman, Lawrence M. Kopelman, P.A., Fort Lauderdale, for Plaintiff. Brendan J. McKay, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO DISMISSPLAINTIFF’S AMENDED COMPLAINT OR IN THEALTERNATIVE MOTION FOR MORE DEFINITESTATEMENT AND MOTION TO TRANSFER VENUE
THIS CAUSE came before the Court on December 17, 2015 for hearing on Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint or in the Alternative Motion for More Definite Statement and Motion to Transfer Venue, and the Court’s having reviewed the motion and entire Court file; reviewed the relevant legal authorities; heard argument; and been sufficiently advised in the premises the Court finds as follows:
1) The Plaintiff has pled a two-count complaint asserting declaratory relief and breach of contract for failure to pay in full for glass replacement under a comprehensive/collision policy issued by the Defendant.
2)The Defendant moves to dismiss Count I because it asserts Plaintiff has failed to establish its entitlement to declaratory relief.
3) The Supreme Court of Florida, in Higgins v. State Farm Fire and Cas. Co., 894 So.2d 5 (Fla. 2004) [29 Fla. L. Weekly S533a] held that the Declaratory Judgment Act, Chapter 86, Florida Statutes, supports the conclusion that a party may pursue a declaratory judgment action which requires a determination of the existence or nonexistence of a fact upon which depends on an insurance company’s obligations to the insured under a policy of insurance.
4) Fla. Stat. §86.011, provides:
“The circuit and county courts have jurisdiction within their respective jurisdictional amounts to declare rights, status, and other equitable or legal relations whether or not further relief is or could be claimed. No action or procedure is open to objection on the ground that a declaratory judgment is demanded. The court’s declaration may be either affirmative or negative in form and effect and such declaration has the force and effect of a final judgment. The court may render declaratory judgments on the existence, or nonexistence:
(1) Of any immunity, power, privilege, or right; or
(2) Of any fact upon which the existence or nonexistence of such immunity, power, privilege, or right does or may depend, whether such immunity, power, privilege, or right now exists or will arise in the future. Any person seeking a declaratory judgment may also demand additional, alternative, coercive, subsequent, or supplemental relief in the same action.”
Fla. Stat. §86.011 (2015).
5) Fla. Stat. §86.021 provides:
“Any person claiming to be interested or who may be in doubt of about his or her rights under a deed, will, contract, or other article, memorandum, or instrument in writing or whose rights, status, or other equitable legal relations are affected by a statute. . . may have determined any question or construction or validity arising under such statute, regulation, municipal order, contract, deed, will, franchise, or other article, memorandum or instrument in writing, or any part thereof, and obtain a declaration of rights, status, or other equitable or legal relations thereunder.”
Fla. Stat. §86.021 (2015).
6) The true purpose of declaratory judgment is to afford the parties relief from insecurity and uncertainty with respect to rights, status, and other equitable or legal relations. Coalition for Adequacy and Fairness in School Funding, Inc. v. Chiles, 680 So.2d 400 (Fla. 1996) [21 Fla. L. Weekly S271a]; Santa Rosa County v. Administration Com’m, Div. of Administrative Hearings, 661 So. 2d 1190, (Fla. 1995)[20 Fla. L. Weekly S333a]
The key to the test of sufficiency of a complaint in a declaratory judgment proceeding is whether there is a bona fide, actual, present practical need for the declaration. South Riverwalk Investments, LLC v. City of Ft. Lauderdale, 934 So.2d 620 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D1977a].
7) Here, Plaintiff has alleged a sufficient basis to demonstrate that there is a bona fide, actual, present need for a declaration by this Court. Plaintiff has alleged facts sufficient for this Court to declare the existence or nonexistence of any fact, the existence or nonexistence of any right, or the proper interpretation of any writing, as the Plaintiff has identified said facts, and the factual or legal basis that might give rise to any immunity, power, privilege, or right. Specifically Plaintiff alleges doubt and uncertainly as to the interpretation and implementation of the term “Prevailing Competitive Price” as set forth in the policy of insurance.
8) Thus, a cause of action for declaratory relief has been properly stated. The questions present a valid dispute as to the unsettled issues of which Plaintiff seeks decrees. Plaintiff has alleged valid, present, and actual controversies that affect Plaintiff’s ability to be paid and the matter is properly before this Court by way of a declaratory action.
9) In reviewing Defendant’s Motion to Dismiss, this Court is limited to an examination of the four corners of the complaint and its attachments. Solorzano v. First Union Mortgage Corp., 896 So.2d 847 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D528a]. This Court must consider the allegations raised by Defendant’s Motion to Dismiss in the light most favorable to the Plaintiff, as the non-moving party, accepting all allegations in the complaint as true; additionally, all reasonable inferences must be drawn in favor of the pleadings party. Id. In this regard, Plaintiff has stated a valid cause of action for breach of contract within the four corners of the complaint, and thus; Plaintiff’s complaint is sufficiently drafted to require the Defendant file an Answer and Affirmative Defenses to Count II.
10)The Defendant also moves to transfer venue to Orange County pursuant to Fla. Stat. §47.122. In support of its Motion, Defendant has furnished the affidavit of Alex Pena, a State Farm employee assigned to the subject claim. The plaintiff’s selection of venue is presumptively correct and the party challenging venue has the burden to demonstrate impropriety of plaintiff’s venue choice. See Carlson-Southeast Corp. v. Geolithic Inc., 530 So.2d 1069 (Fla. lst DCA 1988). The most important consideration of the three statutory factors in Fla. Stat. §47.122 is the convenience of the witnesses. Pep Boys v. Montilla, 62 So.3d 1162 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1171a]. A trial court must know who the witnesses are and the significance of their testimony in order to consider the convenience of the witnesses. Brown & Williamson Tobacco Corp. v. Young, 690 So.2d 1377 (Fla. 1st DCA 1997) [22 Fla. L. Weekly D878c]. Defendant’s affidavit failed to present sufficient information to enable this Court to properly weigh the convenience of all of the key witnesses under Fla. Stat. §47.122. Therefore, this Court finds that the Defendant has failed to show, through sworn testimony or statement, any impropriety of Plaintiff’s venue selection.
ORDERED AND ADJUDGED that the Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint or in the Alternative Motion for More Definite Statement is hereby DENIED and Motion to Transfer Venue is hereby DENIED. The Court finds the Plaintiff has sufficiently pled a count for declaratory relief. The Court further finds the complaint to be sufficiently drafted to require the Defendant to file an Answer and Affirmative Defenses. Defendant shall file an Answer and Affirmative Defenses within twenty (20) days of the date of this Order.
