25 Fla. L. Weekly Supp. 197a
Online Reference: FLWSUPP 2502FIELInsurance — Personal injury protection — Venue — Forum non conveniens — Insurer’s motion to transfer venue based on convenience of parties and witnesses is denied where insurer has not identified witnesses, explained nature or significance of witnesses’ testimony, or demonstrated that venue selected by medical provider will cause substantial inconvenience and undue expense to insurer
COASTAL RADIOLOGY, LLC (a/a/o Altarik Fields), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE16-019261 (51). April 17, 2017. Kathleen McCarthy, Judge. Counsel: Joseph R. Dawson, Law Offices of Joseph R. Dawson, P.A., Fort Lauderdale, for Plaintiff. Danielle L. Snyder, for Defendant.
ORDER ON DEFENDANT’S MOTIONTO TRANSFER VENUE
THIS CAUSE having come on to be heard on April 11, 2017, on Defendant’s Motion to Transfer Venue, the Court having reviewed the file, the affidavits submitted by the parties, and having received argument of counsel, finds as follows:
Finding of Fact
The Plaintiff has filed this cause of action alleging an underpayment for medical charges for diagnostic testing, comprised of an MRI, which were timely submitted to the Defendant. As a consequence, Plaintiff alleges a breach of an insurance contract which provided personal injury protection (PIP) benefits. The gravamen of the statement of claim is that the policy, which is form 9810A, fails to adequately inform its insured, and the medical providers of the insured, that reimbursement will be limited to 200% of the Medicare Fee Schedule.
Subsequent to filing of the lawsuit, on December 7, 2016, the Court1 entered an Order to Show Cause why venue should not be transferred from Broward County. A hearing on the Order to Show Cause was scheduled for December 21, 2016. On December 13, 2016, the Plaintiff filed the affidavit of its corporate representative in opposition to the Order to Show Cause, which stated that the Plaintiff selected Broward County because the Defendant, a foreign corporation, maintains an office in Broward County, and that the Plaintiff felt that cases moved more expediently in Broward than Miami-Dade County. The affiant further testified that the difference in distance between the two different courthouses and any inconvenience that this may have created was slight, and substantially outweighed by the Plaintiff’s overriding desire to have the case resolved expeditiously to avoid exhaustion of benefits.
The Defendant did not file an affidavit prior to the December 21 hearing, but did file the affidavit of a claims representative on January 5, 2017. In that affidavit, the adjuster claimed that the documents in the adjusting file reflect that the traffic crash, diagnostic testing and the underlying medical treatment all occurred in Miami-Dade County. Because of those facts, the adjuster concluded that the Defendant “would suffer undue prejudice and unnecessary expense if it were required to defend this case in Broward County.”2 The affidavit did not identify the witnesses by name, or indicate why they were material to the case in arriving at that conclusion.
The Plaintiff points out that this case seeks a determination of whether the policy interpretation limits payment to the fee schedule, or not, and that the issues of the case a largely legal as opposed to factual. The Defendant, however, indicates it will contest relatedness and medical necessity even though it paid benefits at the Medicare Fee Schedule when the bill was submitted.
Legal Analysis and Conclusions of Law
The parties agree that Broward County meets requirements for venue as the Defendant maintains an office in this county. The dispute is whether or not the Defendant has established a basis to change venue. The Plaintiff argues that the affidavit of Luis Barrera (“Barrera”) is based solely upon hearsay, and is wholly conclusionary in nature, and fails to articulate the identity of the witnesses, the reason the witnesses are material, and why the chosen venue of the Plaintiff would create substantial inconvenience or undue expense to the parties in this action. The Plaintiff further argues that the difference of approximately 20 miles cannot, as a matter of law, meet the burden of establishing substantial inconvenience or undue expense.
It is well-settled that the plaintiff’s selection of the venue is presumptively correct and the party challenging it has the burden to establish impropriety of selection. Barry Cook Ford, Inc. v. Ford Motor Co., 571 So. 2d 61 (Fla. 1st DCA 1990)(“The Plaintiff’s decision regarding venue is presumptively correct, and the party challenging venue has the burden to demonstrate any impropriety in the plaintiff’s choice.”) The Barry Cook case goes on to state, as clarification:
While the primary purpose of venue statute is to require litigation to be instituted in the forum which will cause the least amount of inconvenience and expense to those parties required to answer and defend the action, it is the prerogative of the plaintiff to select the venue and as long as that selection is one of the alternatives provided by statute the plaintiff’s selection will not be disturbed.
Id. at 61. (Emphasis added).
Where a defendant contests venue, based upon an allegation of an inconvenience to that party, it has the burden to establish “substantial inconvenience or undue expense” in order to meet its burden. Wynn Drywall, Inc. v. Aequicap Program Administrators, Inc., 953 So. 2d 28, 30 (Fla. 4th DCA 2007) [32 Fla. L. Weekly D700a]. Here, Defendant failed to demonstrate by affidavit or other competent evidence as to how litigating this case in Broward County would cause substantial inconvenience to any witnesses, or that it would cause undue expense.
The Defendant asserts that, due to the case being filed in Broward County, nonparty witnesses from Miami would “have to be convinced to appear for trial in Broward County, Florida as said travel would unnecessarily disrupt the daily activities of the witnesses that are located in Miami Dade [sic] County.”3 However, this is a purely speculative representation which is supported by a false premise, to wit: that travel to Broward County is disruptive and that the witness would therefore not honor a subpoena. The fact that the experts can testify by deposition is not referenced in the affidavit as an alternative method of procuring their trial testimony.
Absent evidence of specific facts demonstrating who the witnesses are, the significance and nature of their testimony as well as a demonstration of substantial inconvenience and undue expense to the Defendant, Plaintiff’s choice of venue must not be disturbed. Hu v. Crockett, 426 So. 2d 1275 (Fla. 1st DCA 1983). Accordingly, it is hereupon,
ORDERED AND ADJUDGED that said Motion to Transfer Venue is denied without prejudice.
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1This Order was entered by the Honorable Robert W. Lee, who reviewed this case prior to the current judge being assigned this case.
2Affidavit of Luis Barrera, at ¶ 7 inter alia.
3Id., at ¶ 7 inter alia.
