26 Fla. L. Weekly Supp. 893c
Online Reference: FLWSUPP 2611DUTKInsurance — Venue — Forum selection clause — Clause mandating that suit must be filed in county and state where covered person lived at time of accident is valid floating forum selection clause — Insurer’s limited participation in discovery and filing of proposal for settlement that was not accepted did not waive enforcement of forum selection clause
EMERGENCY PHYSICIANS, INC. d/b/a EMERGENCY RESOURCES GROUP a/a/o Erika Dutkanynch, Plaintiff(s) v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant(s). County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2017 35356 COCI. Division 82. July 9, 2018. David A. Cromartie, Judge. Counsel: K. Doug Walker, Bradford Cederberg, P.A., Orlando, for Plaintiff. James C. Rinaman, Dutton Law Group, Jacksonville, for Defendant
.ORDER GRANTING DEFENDANT’S MOTIONTO DISMISS FOR LACK OF VENUE, OR IN THEALTERNATIVE, MOTION TO TRANSFER VENUEFOR FAILURE TO COMPLY WITHMANDATORY FORUM SELECTION CLAUSE
THIS CAUSE has come before the Court 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. The Court being fully advised in the premises, finds as follows:
Forum selection clauses are presumptively valid. Golden Palm Hospitality, Inc. v. Stearns Bank Nat Ass’n, 874 So.2d 1231, 1235 (Fla. Fifth DCA 2004) [29 Fla. L. Weekly D1302a]. Where a forum selection clause is floating, the language used must tie the forum selection to mutable and knowable facts. See Lopez v. United Capital Fund, LLC, 88 So.3d 421, 424 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D1176b]. The forum selection clause at issue in this case, although floating is mandatory and ties the forum selection to mutable and knowable facts in that it requires a suit to be filed in the county and state where the covered person lived at the time of the accident. The covered person, Erika Dutkanych, lived in Duval County at the time of the accident. The Court finds that the forum selection clause at issue is a valid, floating forum selection clause that mandates that this suit be filed in Duval County, Florida. The Plaintiff argues that the Defendant has waived enforcement of the forum selection clause by participating in discovery and by serving on the Plaintiff a proposal for settlement. “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 112, 114 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D3115a]. The Defendant served Plaintiff with Interrogatories, Docket #22 and Defendant’s Request for admissions (Regarding Venue), Docket #30. The Defendant also filed discovery responses. Limited participation in discovery does not constitute waiver of the right to enforce a forum selection clause. Id. at 1114 -1115. The Court finds that the Defendant’s participation in discovery was limited and did not waive the Defendant’s right to enforce the forum selection clause. The Defendant filed a proposal for settlement on November 26, 2017, Docket #18. “A settlement produced pursuant to Florida’s offer of judgment statute . . . is under the auspices of the court in which the dispute is being processed and is tantamount to a consent for judgment.” Mady v. DaimlerChrysler Corp., 59 So. 3d 1129, 1131 (Fla. 2011) [36 Fla. L. Weekly S117a]. In Mady, there was an offer and acceptance of the proposal for settlement. In the instant case, the Plaintiff did not accept the offer and therefore the parties did not enter into a settlement and venue was not waived.
It is ORDERED AND ADJUDGED that said Motion is hereby GRANTED and this case is transferred to a County Court in the jurisdiction of Duval County, Florida. Pursuant to Florida Statute 47.191, Defendant is hereby taxed with costs of the transfer of the case.
