26 Fla. L. Weekly Supp. 894a

Online Reference: FLWSUPP 2611RESEInsurance — Personal injury protection — Venue — Forum selection clause — Policy provision stating that any legal action against insurer must be brought in county and state where covered person lived at time of accident is valid mandatory forum selection clause — No merit to argument that forum selection clause is invalid due to overwhelming bargaining power of insurer where plaintiff is medical provider that was not party to contract but, rather, is suing under assignment of benefits knowingly accepted from insured — No merit to argument that insurer waived right to rely on forum selection clause by failing to supply provider with copy of policy in response to pre-suit demand

EMERGENCY MEDICAL ASSOCIATES OF TAMPA BAY, L.L.C., as assignee of Christopher Resendiz, Plaintiff, v. USAA GENERAL INDEMNITY COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2018 34536 COCI. Division 82. December 26, 2018. David A. Cromartie, Judge.

ORDER GRANTING DEFENDANT’S MOTION TOTRANSFER VENUE AND TRANSFERRING VENUEPURSUANT TO MANDATORY FORUMSELECTION CLAUSE

This cause came on to be heard before the Court on November 26, 2018, upon Defendant’s Motion to Dismiss for Lack of Venue, or in the alternative, Motion to Transfer Venue for Failure to Comply with Mandatory Forum Selection Clause, and Plaintiff’s Motion to Strike the Affidavit of Christopher Resendiz Filed in Support of Motion to Transfer Venue.

The issue raised by the Defendant in its Motion to Dismiss for Lack of Venue, or in the alternative, Motion to Transfer Venue is whether or not Plaintiff should be compelled to litigate this case in Hillsborough County, Florida due to a mandatory forum selection clause in the underlying insurance policy. For the reasons explained below, the Court grants Defendant’s request to transfer because the parties are bound by a valid and enforceable forum selection clause, and the Defendant has not waived its right under this clause. Moreover, the Court denies Plaintiff’s Motion to Strike the Affidavit of Christopher Resendiz, or alternatively, take the deposition of the insured, Christopher Resendiz.

First, if venue is proper in multiple counties, a plaintiff is at liberty to choose among them. In the case of a lawsuit filed against a foreign corporation doing business in Florida, Florida Statute §47.051 provides that venue is proper in any one of three places: (1) a county where such corporation has an agent or other representative, (2) where the cause of action accrued, or (3) where the property in litigation is located. Thus, absent any agreement by the parties, this lawsuit must be brought in one of the three statutorily approved locations. However, the parties are free to modify their rights and responsibilities regarding venue by contract. See Golden Palm Hospitality, Inc. v. Stearns Bank Nat Ass’n, 874 So.2d 1231, 1234 (Fla. 5th DCA 2004) [29 Fla. L. Weekly D1302a] (recognizing that “contracting parties have the right to select and agree on a forum in which to resolve future disputes.”)

Contained within the insurance policy at issue in this case is a forum selection clause located in Part E — General Provisions, subheading ‘Legal Action Against Us,’ subsection C, which reads:

Unless we agree otherwise, any legal action against us must be brough in a court of competent jurisdiction in the county and state where the covered person lived at the time of the accident.

See Notice of Filing Certified Policy.

At the hearing on this Motion, Defendant admitted an Affidavit of Christopher Resendiz asserting that he is the “covered person” from the underlying accident, and that, at the time of the accident, he resided at an address located in Hillsborough County, Florida. See Notice of Filing Affidavit of Christopher Resendiz. No evidence was presented by Plaintiff contradicting this fact. As such, there is no reason to strike the Affidavit of the Christopher Resendiz and there is no reason that necessitates Plaintiff taking the deposition of the insured, Christopher Resendiz.

Second, forum selection clauses must be both valid and enforceable to achieve the desired result. The Court will first address the validity and enforceability analyses and the Plaintiff’s waiver argument last.

I. Validity of the Forum Selection Clause

Forum selection clauses are presumptively valid. Golden Palm Hospitality, Inc. v. Stearns Bank Nat Ass’n, 874 So.2d 1231, 1235 (Fla. 5th DCA 2004) [29 Fla. L. Weekly D1302a]. However, there are three recognized exceptions to the presumption of validity: (1) if the forum selection clause is tainted by fraud, (2) if the clause is a product of overwhelming bargaining power of one party, or (3) if the clause is the sole basis upon which to base jurisdiction. Id.

Plaintiff argues that Defendant’s Forum Selection is invalid due to overwhelming bargaining power. This argument simply has no merit. Defendant agreed that Plaintiff did not have a “bargained for exchange” in the creation of the policy of insurance. This is so because the Plaintiff was not a party to the contract, and Plaintiff has not pled reformation of the contract as a cause of action. Plaintiff does not have standing to pursue reformation of a contract because they were neither a party to the contract, an insured, nor a third party beneficiary. American Int’l Specialty Lines v. Blakemore, 776 F.Supp.2d 215, 221-22 (W.D.La..2011). Rather, Plaintiff is suing under an assignment of rights it received from the insured and knowingly accepted.

It should be beyond dispute that Plaintiff’s interests in this case are derivative of the insured’s interests. The Plaintiff has specifically named itself a plaintiff in the capacity “as Assignee” and has not brought a direct action in any other capacity. An assignee “steps into the shoes of the assignor.” Shaw v. State Farm Fire and Cas. Co., 37 So.3d 329 (Fla. App. 5th DCA 2010) [35 Fla. L. Weekly D1020a]; see also Angora Enterprises, Inc. v. Cole, 439 So.2d 832 (Fla.1983) assignee stood in assignor’s shoes; United of Florida, Inc. v. Illini Federal Sav. and Loan Ass’n, 341 So.2d 793 (Fla. 2nd DCA 1977) assignees stood in shoes of their assignor, receiving only those rights and benefits available to assignor; Foster v. Foster, 703 So.2d 1107 (Fla. 2nd DCA1997) [22 Fla. L. Weekly D2561b] assignee stands in the shoes of the assignor. See also Tampa Bay Imaging, LLC a/a/o E.P. v. USAA Cas. Ins. Co., Case No. 2016-SC-006019-NC (Sarasota County, May 31, 2017), FLWSUPP 2504EP [25 Fla. L. Weekly Supp. 375b] (finding that since the Plaintiff brought the lawsuit pursuant to an Assignment of Benefits, the Plaintiff now steps into the shoes of its assignor, had the assigner brought the suit he would have had to bring the suit in the county he resided pursuant to the terms of the policy, and that the same obligation applies to the Plaintiff by virtue of the Assignment of Benefits.); and also Tampa Bay Imaging, LLC v. USAA General Indemnity Company, Case No. 2017-SF-004070 (Sarasota County, December 18, 2017).

Moreover, Defendant did not contest Plaintiff’s standing to receive benefits due to providing medical treatment to the insured. For this reason, Plaintiff’s argument regarding the Emergency Medical Treatment and Labor Act, 42 U.S.C.A. §1395dd (“EMTALA”) and the Florida Access to Emergency Services and Care Law, §395.1041, Fla. Stat. (“FAEC”)., which requires emergency room physicians to evaluate and treat every single patient that presents to the emergency room, expressly prohibiting the conditioning of treatment on a patient’s ability to pay or whether that person is covered by insurance, is inapplicable to the facts or issues presented in this case.

Plaintiff cites to Emergency Phys. Inc. d/b/a Emergency Resources Grp. a/a/o Judith Rainwater v. USAA Cas. Ins. Co., Case No.: 2015 21182 CONS (Volusia County, Mar. 14, 2016) [24 Fla. L. Weekly Supp. 64a] (hereafter “Rainwater”) to support its position, however, this argument is fundamentally distinguishable. In Rainwater, Plaintiff failed to attach an assignment of rights to the pre-suit demand letter and Defendant defended the subsequent suit for lack of standing. Plaintiff argued that it had standing as the real party in interest and in equity for providing medical treatment and services to Ms. Rainwater. The Plaintiff in that case argued that the Federal provisions of EMTALA and State provisions of FAEC prohibit a lack of standing defense due to unequal bargaining power in that Plaintiff, the emergency room physicians, had no choice but to provide medical treatment. Defendant does not disagree. In the case at hand, a valid assignment of rights is present and Defendant is not contesting Plaintiff’s standing. Thus, Plaintiff’s reliance on Rainwater is misplaced.

Plaintiff has three avenues in which it can litigate its claim. Plaintiff can look to the insured to obtain the deductible, Plaintiff can bring a cause of action for benefits pursuant to Florida Statute §627.736, as done in the instant case, or Plaintiff can bring a claim for breach of contract pursuant to common law. Plaintiff is not limited to a cause of action through §627.736, however, by filing suit pursuant to §627.736, Plaintiff chose a litigation route that will result in a hopeful payment of attorney’s fees. Conversely, if Plaintiff were to put forth a claim for $0.01 under a breach of contract cause of action, they would potentially risk paying attorney’s fees if the court found the claim frivolous due to the nominal amount at issue. See Dictiomatic, Inc. v. U.S. Fidelity & Guar. Co., 127 F.Supp.2d 1239 (attorney fees awarded to defendant because the plaintiff’s cause of action was deemed frivolous). Further, even if Plaintiff were to prevail under a breach of contract cause of action, an award of attorney fees in their favor is not a guarantee. See Minto PBLH, LLC v. 1000 Friends of Florida, Inc., App. 4 Dist., 228 So.3d 147 (2017) (attorney fees were not awarded where the losing party incorrectly interpreted a legal document because an arguable basis still existed for the unsuccessful claim); Fla. Stat. §57.105 (2010) (“Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee … [where the] losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court…(a) [w]as not supported by the material facts necessary to establish the claim or defense; or (b) [w]ould not be supported by the application of then-existing law to those material facts.”). While Plaintiff’s choice of law is strategic, as is its choice of venue, the purpose of USAA’s venue selection clause is not of strategy, but rather in the interest of the insured.

For this reason, this Court finds there is not an unequal bargaining power present under these facts that renders the Defendant’s forum selection clause invalid.

II.

Enforceability and alleged waiver of the Forum Selection Clause

Plaintiff claims Defendant is foreclosed from reliance on the policy mandatory forum selection clause because Defendant did not provide Plaintiff with notice of the venue clause prior to suit. Plaintiff offers no rule or statute in support of this proposition. Instead, Plaintiff claims Defendant waived reliance on the policy provisions, including the mandatory forum clause, because Defendant did not provide a copy of the policy in response to the pre-suit demand. Plaintiff’s novel argument in this regard relies completely on the inapplicable Rainwater holding and ignores long-established Florida law relieving the PIP insurer of any pre-suit obligation to provide policy-specific information to assignee providers. See Progressive American Insurance Company v. Rural/Metro Corporation of Florida, 994 So.2d 1202 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D2649a]; Southern Group Indem, Inc. v. Humanitary Health Care, Inc. 975 So.2d 1247 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D752a].

Plaintiff’s reliance on Rainwater is again misplaced. As stated above, in that case, the Plaintiff failed to attach a written assignment of rights to its pre-suit demand letter. In its response to the pre-suit Demand, the Defendant insurer failed to object to the defect, instead processing and paying benefits. The court determined Defendant waived the defect by failing to notify Plaintiff of the defect in response to the demand.

The Plaintiff’s attempted stretching of this argument to the mandatory forum clause in the subject policy is without merit for several reasons. First, Defendant has not alleged the Plaintiff’s pre-suit demand was deficient, nor has it “sprung” any alleged deficiency after Plaintiff filed its lawsuit. Plaintiff filed the subject lawsuit on June 27, 2018, and Defendant provided the subject policy on August 6, 2018, just two weeks after pre-trial conference. Second, there is no statutory or common law requirement for Defendant to respond to Plaintiff’s pre-suit demand letter or provide pre-suit policy information to Plaintiff. See Fla. Stat. §627.736(10); Progressive American Insurance Company v. Rural/Metro Corporation of Florida, 994 So.2d 1202 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D2649a]; Southern Group Indem., Inc. v. Humanitary Health Care, Inc. 975 So.2d 1247 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D752a]. Finally, Plaintiff filed the subject lawsuit pursuant to an assignment of rights based on a policy of insurance. Florida Statute §627.736(10)(b)(2) states the pre-suit demand letter must contain “the claim number or policy number upon which such claim was originally submitted to the insurer.” Plaintiff served a pre-suit demand to Defendant identifying a policy/claim number of 038783300. Thus, Plaintiff knew the policy number of the subject policy and could simply have obtained a copy of the subject policy from its assignor, from which it obtained its assignment and/or claim number, prior to filing the lawsuit. Moreover, Plaintiff’s attorney admitted at hearing that he had knowledge of Defendant’s forum selection clause by virtue of having attended multiple hearings, on the same issue, with this same Defendant, involving the same policy, during his two-year tenure with his firm.

Waiver is defined as the voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right.” Carnival Corp. v. Booth, 946 So.2d 1112, 1114 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D3115a]. Defendant not providing the policy of insurance in response to a pre-suit demand does not constitute waiver of a term of the subject policy.

Thus, the Court finds that Defendant has not waived its right to challenge venue. The forum clause at issue is a valid, mandatory forum selection clause that mandates this suit be filed in Hillsborough County, Florida.

After considering the motions, having heard argument of counsel, and being otherwise fully advised, it is thereupon,

ORDERED AND ADJUDGED:

1. Defendant’s Motion to Dismiss is DENIED. Defendant’s Motion to Transfer Venue Based on Mandatory Forum Selection Clause is GRANTED.

2. Plaintiff’s Motion to Strike the Affidavit of Christopher Resendiz is DENIED.

3. Plaintiffs request to take the deposition of the insured, Christopher Resendiz, is DENIED.

4. The costs of transferring the case shall be paid by Defendant, and the matter shall be transferred to Hillsborough County, Florida within 30 days of entry of this order.

5. Defendant shall respond to Plaintiff’s Complaint 20 days after this case has been transferred to Hillsborough County, Florida.