25 Fla. L. Weekly Supp. 178a
Online Reference: FLWSUPP 2502WARRInsurance — Personal injury protection — Venue — Forum selection clause — Where forum selection clause in PIP policy mandates that action against insurer be brought in court in county where covered person resides, and there is no evidence that enforcement of clause would be unreasonable or unjust or that clause is invalid for fraud or overreaching, motion to dismiss PIP case brought in Volusia County by insured residing in Hillsborough County is granted
EMERGENCY MEDICAL ASSOCIATES OF TAMPA BAY, L.L.C., as assignee of Jimmie Warren, Plaintiff, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2016-31413-COCI, Division 82. April 20, 2017. Angela A. Dempsey, Judge. Counsel: Robert Bartels, Bradford Cederberg, P.A., Orlando, for Plaintiff. Jonathan J. Warrick, Dutton Law Group, Orlando, for Defendant.
ORDER GRANTING DEFENDANT’S MOTIONTO DISMISS FOR LACK OF VENUE
THIS CAUSE came before the Court for hearing on Defendant’s Motion to Dismiss for Lack of Venue or, in the alternative, Motion to Transfer Venue for Forum Non-Conveniens. Having heard arguments of counsel, reviewed the pleadings, motions, and having been otherwise fully advised in the premises, the Court finds as follows:
Background: This is a P.I.P. case. The Plaintiff’s Complaint arises out of an accident that allegedly occurred on October 24, 2015, when assignor/claimant, Jimmie Warren, was allegedly involved in a motor vehicle-related accident that occurred in Riverview, Hillsborough County, Florida. Following the accident, the claimant sought benefits under a policy of personal injury protection insurance issued by the Defendant to Jimmie Warren in Riverview, Hillsborough County, Florida, where his vehicle was garaged, and where he resided. Part E, Section “Legal Action Against Us,” subsection C, of the insurance policy issued by the Defendant states, in pertinent part, “[u]nless we agree otherwise, any legal action against us must be brought in a court of competent jurisdiction in the county and state where the covered person lived at the time of the accident.”
Defendant argued that the main issue was whether said forum selection clause in the policy of insurance is permissive or mandatory and that it was clearly mandatory based upon the plain language of the policy of insurance (including “must be brought. . .in the county. . .where the covered person lived at the time of the accident”), inter alia.
Plaintiff argued, inter alia, that the Defendant had waived its right to assert venue either at pretrial or within twenty days of the invocation of the Florida Rules of Civil Procedure, as Fla. R. Civ. P. 1.140 requires pleading venue as an affirmative defense within twenty (20) days or it is waived.
Legal Conclusions: This Court agrees with the Defendant, for the reasons set forth in its arguments before the Court, and as stated above, and as set forth in Golden Palm Hospitality, Inc. v. Stearns Bank Nat’l Ass’n, 874 So.2d 1231 (Fla. 5th DCA 2004) [29 Fla. L. Weekly D1302a].
The Florida courts agree that contracting parties have the right to select and agree on a forum in which to resolve future disputes. Intercapital Funding Corp. v. Gisclair, 683 So.2d 530 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1977b]; Derrick & Assocs. Pathology, P.A. v. Kuehl, 617 So.2d 866 (Fla. 5th DCA 1993); see also Maritime Ltd. P’ship v. Greenman Adver. Assocs., Inc., 455 So.2d 1121 (Fla. 4th DCA 1984) (holding that parties may agree to forum selection clauses as long as there is no overreaching, contravention of public policy, and the forum is not too remote).
The prevailing view is that forum selection clauses are presumptively valid. See Friedman v. American Guardian Warranty Servs., Inc., 837 So.2d 1165 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D564a]; Thompson v. Keysway Inv., Inc., 818 So.2d 603 (Fla. 4th DCA 2002) [27 Fla. L. Weekly D1156a]; Bombardier Capital Inc. v. Progressive Mktg. Group, Inc., 801 So.2d 131, 134 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D2697a], review denied, 828 So.2d 388 (Fla.2002); America Online, Inc. v. Booker, 781 So.2d 423, 424 (Fla. 3d DCA 2001) [26 Fla. L. Weekly D386a] (“Contractual forum selection provisions are presumptively valid and generally enforceable.”) (citations omitted).
Forum selection clauses, such as the one here, are presumptively valid and should be enforced, “unless [the resisting party] could clearly show that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching.” Benefit Ass’n Int’l, Inc. v. Mount Sinai Comprehensive Cancer Ctr., 816 So.2d 164, 168 (Fla. 3d DCA 2001) [27 Fla. L. Weekly D973b]. No such evidenced was found in this case.
The Fifth District Court of Appeal in the Golden Palm case states, “If a venue selection clause unambiguously mandates that litigation be subject to an agreed upon venue, then it is reversible error for the trial Court to ignore the clause.” See Id.
Therefore, it is ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss for Lack of Venue is hereby GRANTED. The Clerk of Court shall transfer this cause to Hillsborough County, Florida. Defendant shall pay any costs associated with the transfer within thirty (30) days, otherwise the case shall remain in Volusia County, Florida. Defendant’s Motion to Transfer Venue for Forum Non-Conveniens is denied as moot.
