26 Fla. L. Weekly Supp. 38a
Online Reference: FLWSUPP 2601AMInsurance — Personal injury protection — Venue — Forum selection clause — Provision requiring any legal action against insurer to be brought in county and state where covered person lived at time of accident, unless insurer agreed otherwise, was mandatory and enforceable absent showing that it is unreasonable or unjust — Motion to transfer venue to county in which assignor/insured resided at time of accident granted
A.M., an insured individual by and through his/her assignee, TAMPA BAY IMAGING, LLC, Plaintiff, v. USAA GENERAL INDEMNITY COMPANY, Defendant. County Court, 12th Judicial Circuit in and for Sarasota County. Case No. 2017-SC-004070 NC. December 18, 2017. Maryann Boehm, Judge. Counsel: Jennifer Heath, for Plaintiff. Stephen B. Farkas, Dutton Law Group, PA, Tampa, for Defendant.
ORDER ON DEFENDANT’S MOTION TO DISMISSOR TO TRANSFER VENUE BASED ONMANDATORY FORUM SELECTION CLAUSE
THIS CAUSE came before the Court for hearing on Defendant’s Motion to Dismiss or to Transfer Venue Based on Mandatory Forum Selection Clause. Having heard the arguments from Counsels of record at a hearing on December 5, 2017, having 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 January 28, 2017. Following the accident, the assignor/insured sought benefits under a policy of personal injury protection insurance issued by the Defendant.
Contained within the underlying policy was the following provision, located at “Part E — GENERAL PROVISIONS”, in a section called “LEGAL ACTION AGAINST US”:
(PART E Cont’d.)
C. Unless 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.
It is undisputed that at the time of the accident, the assignor/insured resided in Clearwater, Pinellas County. Per the admissions obtained, it is uncontested that the assignor/insured’s Clearwater address, as indicated on the policy declarations page, matches the address on file in the Plaintiff’s medical records. It is further uncontested that the Plaintiff has no evidence showing the assignor/insured resided in Sarasota County.
According to the Complaint, Plaintiff is bringing this action for PIP benefits pursuant to a written Assignment of Benefits. Plaintiff’s Complaint specifically references that this lawsuit is being brought pursuant to a policy providing PIP coverage; that the assignor/insured assigned to the Plaintiff a written absolute assignment of benefits that includes the rights to any causes of action under the applicable policy; and recognized that the Plaintiff now stands in the shoes of the assignor.
The Court recognizes that this is now the third time it has been called upon to address the forum language recited above. Plaintiff has argued that Defendant waived its challenge to venue by not timely raising the issue under the requirements of the Small Claims Rules; specifically Rule 7.060.
Legal Conclusions:
This Court first analyzed the same policy language in Physicians Group, LLC, As Assignee of Stephen Felia, v. United Services Automobile Association, 25 Fla. L. Weekly Supp. 561a (Fla. Sarasota Cnty. Ct. May 15, 2017) and again in E.P., by and through assignee Tampa Bay Imaging, LLC., 25 Fla. L. Weekly Supp. 375b (Fla. Sarasota Cnty. Ct. May 31, 2017) and ruled that the forum selection language was mandatory and must be enforced, absent a showing that it was unreasonable or unjust. The Court sees no reason to detract from its prior rulings.
Accordingly, the Court agrees with the Defendant that the forum selection clause, contained in Paragraph “C” of Part E — General Provisions, as directly quoted above, is mandatory and clearly mandates that forum lies in the county where the insured resided at the time of the accident; in this case Pinellas County. Having determined that the Defendant’s forum clause is mandatory, the Court must enforce it, absent a showing that it is unreasonable or unjust.
Here, there has been no evidence provided by the Plaintiff, nor any argument put forth by the Plaintiff, that enforcement of the forum clause would be unreasonable or unjust.
Since the Plaintiff is bringing this litigation pursuant to an Assignment of Benefits, the Plaintiff now steps into the shoes of its assignor. If the assignor/insured were to have brought this P.I.P-litigation against her insurer, she would have had to bring suit in Pinellas County pursuant to the terms and conditions of the policy. That same obligation applies to the Plaintiff by virtue of the Assignment of Benefits.
As to the Plaintiff’s argument regarding the issue of waiver. Per Administrative Order No. 2012-18.1 (In re: Small Claims Pre-Trial Conferences in PIP Cases, entered October 31, 2012), the Florida Rules of Civil Procedure are hereby invoked in PIP cases. Furthermore, the Clerk of Court shall cancel the Small Claims Pre-Trial Conference/Mediation in a PIP cases when the following conditions have all been satisfied:
a. The Plaintiff is represented by counsel; and
b. The Defendant insurer is represented by counsel; and
c. The Defendant’s attorney timely files and serves a document entitled, “Notice of Appearance/Cancellation of Small Claims Pre-Trial Conference/Mediation”; and
d. The aforementioned Notice of Appearance shall be deemed timely filed when it is hand delivered, e-filed, or provided by mail for filing to the Clerk of the Sarasota County Court, Civil Division and served by hand delivery, email or facsimile to the Plaintiff’s counsel no later than 4:00pm, one business day prior to the date of the Pre-Trial Conference/Mediation. . .
Here, it is undisputed that the subject litigation is a PIP case. Defendant filed a Notice of Appearance/Cancellation of Small Claims Pre-Trial Conference/Mediation and Designation of EMail Address on July 21, 2017. The pre-trial conference was scheduled for July 25, 2017. The Court was presented with e-mail correspondences between both Counsels wherein it was readily apparent that Counsel for the Plaintiff agreed to waive the July 25, 2017 pre-trial conference. The Court record indicates that neither Counsel for the Plaintiff nor the Defendant attended the pre-trial conference. Furthermore, the Court issued a PIP Case Management Order on July 25, 2017 which directed, inter alia, the Defendant to file its responsive pleading within 20 days of the pre-trial conference and ordered that the Florida Rules of Civil Procedure are invoked. Defendant filed its Motion to Dismiss on August 11, 2017 which was within the 20-day time period. Under the facts of this case, the Court is not granting Plaintiff’s waiver argument and consequently allowed the Defendant to present its venue argument under the insurance policy.
Therefore, it is ORDERED AND ADJUDGED as follows:
1. Defendant’s Motion is GRANTED. Venue is more appropriate in Pinellas County per the Defendant’s policy language.
2. The Clerk of Court shall transfer this cause to Pinellas County, Florida.
3. The Plaintiff shall pay any costs associated with the transfer as well as the costs associated with Defendant’s retention of a Court Reporter for today’s hearing.
4. Defendant has not waived its right to challenge venue in this case.
