24 Fla. L. Weekly Supp. 194a
Online Reference: FLWSUPP 2402ZOGLInsurance — Automobile — Windshield repair — Venue — Where insurer is foreign corporation that does not have agent in Lee County and there is no property that is subject of litigation, venue in repair shop’s action against insurer is proper in county where cause of action accrued — Place of payment rule is not applicable to determination of place of accrual of action where there is no debtor-creditor relationship between parties, and sum sought by repair shop is unliquidated — Cause of action arose in county where insurer was to make payment, which is county where insured resides — Where insured, repair shop, adjuster, and all other likely witnesses reside outside of Lee County, convenience of parties weighs in favor of transferring venue — Case is transferred to county where insured resides
CLEAR VISION WINDSHIELD REPAIR, LLC, a/a/o Zoglio, Plaintiff, vs. GEICO, Defendant. County Court, 20th Judicial Circuit in and for Lee County, Civil Action. Case No. 15-SC-735. February 2, 2016. James R. Adams, Judge.
ORDER GRANTING DEFENDANT’SMOTION FOR A CHANGE OF VENUE
THIS CAUSE came to be heard as a result of the Defendant, GEICO General Insurance Company, a/k/a GEICO Indemnity Company (hereinafter “GEICO”), having filed a Motion for a Change of Venue. Both parties were represented by Counsel who had the opportunity to make argument and present relevant legal authority in support of their position.
The base fact is that Clear Vision Windshield Repair, LLC (hereinafter “CLEAR VISION”) filed an unverified complaint against GEICO based upon work that was performed on a vehicle owned by an insured of GEICO. The insured assigned their right of any benefit resulting from the repair of the windshield to their vehicle which gives CLEAR VISION standing to pursue their claim. The issue in the case is whether the venue chosen by CLEAR VISION is proper or convenient for the parties to the cause of action.
The general rules relating to venue do not apply in this case. GEICO is a foreign corporation that does business in the State of Florida. Pursuant to Florida Statute § 47.051 foreign corporations who are authorized and doing business in the State shall be sued in one of three places, (1) in the county where the corporation has an agent; (2) where the cause of action accrued; or (3) where the property in litigation is located. There is no property subject to this litigation located in Lee County, nor is there a corporate agent on behalf of GEICO in Lee County.
CLEAR VISION’S reliance for venue being proper in Lee County is the validity of the assignment from GEICO’S insured and the place of payment rule as set forth in Suncoast Home Improvements v. Robichaud, 106 So.3d 969, (Fla. 2DCA 2013) [38 Fla. L. Weekly D265a] which makes Lee County the location where the cause of action accrued. The place of payment rule is only applicable when a debtor-creditor relationship exists between the plaintiff and the defendant and the promise sued upon is for the payment of money. James A. Knowles, Inc. v. Imperial Lumber Co., 239 So.2d 487, 489 (Fla. 2DCA 1970). This rule pertains to suits for payments of debts and do not apply in the absence of a debtor-creditor relationship flowing from an express contractual promise to pay a certain sum of money owed. PDM Bridge Corp. v. JC Industrial Manufacturing, 851 So.2d 289, 291 (Fla. 3DCA 2003) [28 Fla. L. Weekly D1833e] Where there is no liquidated debt involved, the Court must look to the allegation of the complaint to determine where the cause of action accrued and where venue lies. Magic Wok International, Inc. v. Li, 706 So.2d 372, 374 (Fla. 5DCA 1998) [23 Fla. L. Weekly D462a]. Damages are liquidated when the proper amount to be awarded can be determined with exactness from the cause of action pleaded, i.e, from a pleaded agreement between the parties, by an arithmetical calculation or by application of definite rules of law. Bowman v. Kingsland Dev., Inc., 432 So.2d 660, 662 (Fla. 5DCA 1983). However, damages are not liquidated if the ascertainment of their exact sum requires the taking of testimony to ascertain certain facts upon which to base a value judgment. Id. at 663. See Morales Sand & Soil, L.L.C. v. Kendall Properties & Investments, 923 So.2d 1229, 1232 (Fla. 4DCA 2006) [31 Fla. L. Weekly D841a].
Under GEICO’S policy, the determination of the value of the cost of repair to the windshield is based upon the prevailing competitive price it can secure from competent and conveniently located repair facilities to the insured/assignor, and therefore it would suggest that the sum sought in the complaint by CLEAR VISION would not be a liquidated debt, and the place of payment rule would be inapplicable according to Morales Sand & Soil, L.L.C. v. Kendall Properties & Investments, 923 So.2d 1229 (Fla. 4DCA 2006) [31 Fla. L. Weekly D841a]. To make a proper factual finding, it would be necessary for evidence to be submitted from “competent and conveniently located repair facilities of the insured” for the Court to make a determination of the exact sum due under the policy of the insured and compare that amount to the sum stated in the complaint. This would entail the presentation of witnesses.
While the Court considers the place of payment rule as not applicable, the remaining issue of the choice of venue should be addressed. GEICO has not challenged the validity of the assignment from its insured. It does however contest that the assignment gives any special venue rights to CLEAR VISION. There has been no evidence presented which suggests that venue was part of the consideration in the granting of the assignment.
It is undisputed that all the cases involve the reimbursement for the cost of repair of a windshield. Typically, a cause of action for breach of an obligation to pay under an insurance policy arises at the place where the insurer is to pay the loss, and. . .it is presumably to be made at the residence of the insured; and therefore, a cause of action arises and is maintainable in the county of the insured’s residence where the insurer fails to pay in such county. 44A Am.Jur.2d Insurance § 1912, (2015).
In most breach of contract cases, where venue is not specified by contract, both parties generally have a nexus to the venue where suit is brought. In an assignment case such as this, only the assignee (CLEAR VISION) may have a nexus to the venue in which the complaint is filed. In such an instance, it is possible for a plaintiff who resides in the Panhandle of Florida to obtain an assignment of a debt due from a foreign corporation who only has an office in Key West and force the defendant/foreign corporation to traverse one end of the state to another to defend in a county in which it has never done business or otherwise has no connection. Such a requirement offends traditional notions of fair play and substantial justice. It should be recognized that the plaintiff’s choice of forum is not paramount, and that it will not be honored where the convenience of the parties or witnesses, or the interests of justice, require the action to be transferred. See P.V. Holding Corp. v. Tenore, 721 So.2d 430, 431 (Fla. 3DCA 1998) [23 Fla. L. Weekly D2638a].
GEICO has filed an Affidavit from the manager of their glass department. The Affidavit states that (1) their insured’s reside in a County other than Lee County; (2) GEICO is a foreign corporation and does not maintain any agents in Lee County, its offices are in Polk County and that office is not open to the public; and (3) GEICO has paid the prevailing competitive price for the repair.
Upon the filing of an affidavit, GEICO has demonstrated that the forum chosen by CLEAR VISION is not a suitable forum given the convenience of the parties and in the interest of justice. When a forum non conveniens challenge is raised, it is incumbent upon the parties to submit affidavits or other evidence that will shed necessary light on the issue of the convenience of the parties and witnesses and the interest of justice. Eggers v. Eggers, 776 So.2d 1096, 1098 (Fla. 5DCA 2001) [26 Fla. L. Weekly D438a]. The trial court must resolve any relevant factual issues and then determine whether the plaintiff has made a legal venue selection. Residential Savings Mortgage, Inc. v. Keesling, 73 So.3d 280, 282 (Fla. 2DCA 2011) [36 Fla. L. Weekly D1416a]. When the defendant challenges venue and files an affidavit that disputes the plaintiff’s venue choice, the burden then shifts to the plaintiff to establish that the venue selection is proper.
Florida Statute § 47.122 provides:
For the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought.
In order to consider the weight and convenience of the witnesses under § 47.122, the court must know who the witnesses are and the significance of their testimonies. Hu v. Crockett, 426 So.2d 1275, 1279 (Fla. 1DCA 1983). The limiting phrase of § 47.122 which provides that the court can transfer to any other court in which the action might have been brought should be construed to prevent a plaintiff from defeating a transfer to a venue which would be proper, convenient and just, but which plaintiffs simply avoided by their deliberate acts or omissions. The power to defeat a transfer to a convenient forum should derive from rights and privileges conferred by law, not from the deliberate conduct of a party favoring trial in an inconvenient forum. Resolution Trust Corporation v. Diaz, 578 So.2d 40 (Fla. 4DCA 1991). The insured, the repair shop, the adjuster, and all other parties to the transaction who are likely to give testimony during the trial reside at some other place other than Lee County. All three factors under § 47.122 for consideration in changing venue, the parties, the witnesses, and in the interest of justice, weigh heavily in favor of some place other than Lee County.
The only argument made by CLEAR VISION that venue is proper in Lee County is the place of payment rule which has been determined does not apply in this case. A trial court should never attempt to exercise discretion when it is clear none exists. Likewise, it is an abuse of discretion not to exercise when such discretion does exist (citations omitted). The only connection to Lee County is the presence of the plaintiff and it would be an abuse of discretion to refuse to transfer the case to the location where the witnesses are and where the case arose. Sullivan v. Klein, 691 So.2d 21, 22 (Fla. 3DCA 1997) [22 Fla. L. Weekly D786b]. This Court is also mindful of Florida Statute § 47.131 which further limits transfers due to change of venue and prohibits the transfer back to a county from which it was originally transferred. Based upon the foregoing, it is hereby
ORDERED AND ADJUDGED that the case be transferred to the County of residence of the assignor or the insured; it is further
ORDERED AND ADJUDGED that the Plaintiff, CLEAR VISION shall have thirty (30) days from the entry of this Order to pay the fee to the appropriate Clerk of Court consistent with Rule 1.060(c) of the Florida Rules of Civil Procedure.
