26 Fla. L. Weekly Supp. 298b

Online Reference: FLWSUPP 2604NOLAInsurance — Venue — Forum selection clause — Policy provision requiring any legal action against insurer to be brought in county and state where covered person lived at time of accident is valid and enforceable — Waiver — Fact that insurer sent letter demanding dismissal of suit based on case law from court of appeal of district in which case was then pending did not waive enforcement of forum selection clause — Insurer did not waive venue objection by actively participating in case by sending letter seeking dismissal of case, responding to discovery requests and filing discovery-related motions, or serving very limited discovery request — Service of proposal for settlement did not waive venue objection where no acceptance of proposal was filed — Motion to transfer venue to county in which assignor/insured resided at time of accident is granted

EMERGENCY PHYSICIANS, INC. d/b/a EMERGENCY RESOURCES GROUP, a/a/o Kathy Nolan, Plaintiff, v. GARRISON PROPERTY AND CASUALTY INSURANCE GROUP, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2017 20778 CONS, Division: 73 (MILLER). May 29, 2018. Christian Miller, Judge. Counsel: K. Doug Walker, Bradford Cederberg, P.A., Orlando, for Plaintiff. James C. Rinaman, Dutton Law Group, Jacksonville, for Defendant.ORDER TRANSFERRING VENUE TO CLAY COUNTY The issue raised by the Defendant in its Amended Motion to Dismiss for Lack of Venue, or in the Alternative, Motionto Transfer Venue for Failure to Comply with Mandatory Forum Selection Clause with Incorporated Memorandum of Law is whether or not Plaintiff should be compelled to litigate this case in Clay County, Florida due to a forum selection clause in the underlying insurance policy. For the reasons explained below, the Court grants the Defendant’s request to transfer this case to Clay County because the parties are bound by a valid and enforceable forum selection clause, and the Defendant has not waived its rights under this clause.

Ordinarily, 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 foreign¹ 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 responsibility 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 brought 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, Docket # 41.

At the hearing on this Motion, Defendant also admitted an affidavit by Kathy Nolan asserting that she is the “covered person” from the underlying accident, and that at the time of the accident, she resided at an address located in Clay County, Florida. See Notice of Filing, Docket # 53.

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

“The prevailing view is that forum selection clauses are presumptively valid.” Golden Palm, 874 So. 2d at 1235 (internal citations omitted). 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.

No evidence was presented at the hearing establishing that any of the three possible exceptions to enforcement. Thus the Court finds that the forum selection clause in the underlying insurance policy is valid.

II. Enforceability of the Forum Selection Clause

Determining the enforceability of a forum selection clause first turns on whether or not the language used is permissive or mandatory. Id. at 1236. Permissive language creates nothing more than an option for a plaintiff’s possible choice of venue. However, a mandatory forum selection clause will contain words of exclusivity. Id. Additionally, where the language of a forum selection clause is floating², the language used must also 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 language in the clause at issue in this case uses the term “must,” followed by a single forum to be determined by application of the specific facts of the individual case. The Court finds the language of the subject clause is exclusive and therefore mandatory. Additionally, the Court finds that the clause, although floating, properly ties the forum selection to a mutable and knowable fact: the county in which the covered person resided at the time of the accident. Therefore, the Court finds that the forum selection clause in the underlying insurance policy is enforceable.

III. Waiver of the Forum Selection Clause

Contractual forum selection clauses can be waived. Carnival Corp. v. Booth, 946 So. 2d 1112, 1114 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D3115a]. “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.” Id.

In this case, Plaintiff argues that Defendant waived enforcement of the forum selection clause in a number of ways. Specifically, they allege Defendant’s waiver occurred by: (1) sending Plaintiff a letter requesting they dismiss the case citing Fifth District Court of Appeal case law, (2) filing responses to Plaintiff’s discovery requests and discovery-related motions, (3) serving Plaintiff with a proposal for settlement, and (4) propounding their own discovery requests upon Plaintiff. The Court will address each of these arguments in turn.

A. Defendant’s Letter to Plaintiff Requesting Dismissal

At the hearing on this Motion, Plaintiff admitted a letter sent to it by Defendant that argued various points of law and requested/demanded Plaintiff dismiss the lawsuit. See Plaintiff’s Exhibit 1. Plaintiff argues the letter demonstrates that Defendant agreed Volusia County was the proper forum because Defendant cited case law in the letter from the Fifth District Court of Appeal, rather than the Second (where Clay County cases would be located). However, Plaintiff disregards the fact that at the time of the letter was submitted to Plaintiff, the action was currently pending in Volusia County, where opinions from the Fifth District are controlling precedent. The Court finds Plaintiff’s argument on this point unpersuasive.

Secondly, Plaintiff argues that the act of sending the letter, combined with its content, demonstrated Defendant was actively participating in the litigation. For support of this argument, Plaintiff cites Bland v. Green Acres Group, LLC., 12 So. 3d 822 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D1051a]. In Bland, the Fourth DCA held that the appellant waived enforcement of a contractual arbitration clause through a litany of pre- and post-suit conduct spanning several years before it attempted to enforce the arbitration agreement. Id. at 825. “Acting inconsistently with the arbitration right,” the Court held, can lead to a finding of waiver. Id.

However, this Court finds that the letter sent by the Defendant did not constitute active participation in the litigation. In fact, the letter’s entire goal was to bring an end to the litigation, rather than to participate in it.

B. Responding to Plaintiff’s Discovery Requests and Filing Discovery-Related Motions

Plaintiff also argues that by filing responses to several discovery requests from Plaintiff and filing discovery-related motions, Defendant waived its right to enforce the forum selection clause. Regarding the answers to the Plaintiff’s requested discovery, if this were true, forum selection clauses could unilaterally be rendered meaningless by any party desiring to avoid such a clause merely by sending discovery requests to the objecting party. Thus the Court finds that the Defendant’s discovery responses, generated pursuant to requests by the Plaintiff, were not conduct inconsistent with enforcement of the forum selection clause, and thus no waiver occurred by this activity.

As to the discovery-related motions, the Court notes that each of these motions filed were in response to conduct by the Plaintiff. For example, on June 29, 2017, Defendant filed a Motion to Strike Plaintiff’s initial discovery requests because Defendant was unrepresented at the time those requests were propounded. See Objection and Motion to Strike Discovery Request Initiated with Service of Process, Docket # 12. Additionally, on November 27, 2017, Defendant filed a motion for a protective order seeking to prohibit Plaintiff from taking a deposition of its corporate representative. See Defendant’s Objection and Motion for Protective Order as to Plaintiff’s Request for Deposition, Docket # 40. Indeed, the pleadings in the Court’s file make it clear that Plaintiff was actively attempting to engage Defendant in the discovery process, and frequently moving to compel the Defendant to respond. Obviously, there is nothing wrong with a plaintiff engaging in and initiating discovery in a lawsuit. However, in this context they cannot do so, and then attempt to use the Defendant’s purely responsive conduct against them. Therefore, the Court finds that no waiver occurred by this conduct.

C.

Serving Plaintiff with Proposal for Settlement

On July 28, 2017, Defendant filed notice that it had served a proposal for settlement upon Plaintiff pursuant to Florida Statute 768.79 and Florida Rule of Civil Procedure 1.442. See Defendant’s Notice of Serving Proposal for Settlement, Docket # 22. Plaintiff argues that this waived enforcement of the forum selection clause under Gerling v. Consumer Opinion Corp., 2015 WL 13640174 (Fla. 17th Cir. Ct. 2015) and Mady v. DaimlerChrysler Corp., 59 So. 3d 1129 (Fla. 2011) [36 Fla. L. Weekly S117a]. Plaintiff would be correct if an acceptance of the proposal for settlement had also been filed. However, in this case the offer was not accepted, and Gerling and Mady both made clear that an offer and acceptance being filed with the Court waived venue and personal jurisdiction objections. Gerling at 1 (“Under 768.79 the Defendants’ jurisdictional challenges were waived to venue and personal jurisdiction with the filing of the proposal for settlement and the acceptance of the proposal.”); Mady at 1131 (“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 judgment.”) (emphasis added in both).

D.

Propounding Discovery Upon Plaintiff

Lastly, Plaintiff argues Defendant waived enforcement of the forum selection clause by propounding its own discovery in this matter. On February 12, 2018, Defendant sent Plaintiff one set of requests for admissions and one set of requests to produce. See Defendant’s Request for Admissions, Docket # 43; Defendant’s First Request to Produce to Plaintiff Docket # 44. The subject of the Request for Admissions all concerned the topic of venue. Id. However, the Request to Produce went to the merits of the underlying case. Id. Despite this, according to Carnival Corp., supra, limited participation in discovery does not constitute a waiver of the right to enforce a forum selection clause. Carnival Corp. at 1114-15. Very similar to the facts of this case, in Carnival Corp., the appellant sent the appellee only a very limited amount of discovery. Id. As such, the Court cannot find that Defendant here waived its right to enforce the forum selection clause based on almost identical facts.

WHEREFORE, the Defendant’s Amended Motion to Dismiss for Lack of Venue, or in the Alternative, Motion to Transfer Venue for Failure to Comply with Mandatory Forum Selection Clause with Incorporated Memorandum of Law is hereby GRANTED.

IT IS FURTHER ORDERED AND ADJUDGED, that this case is transferred to a County Court in the jurisdiction of Clay County, Florida. Pursuant to Florida Statute 47.191, Defendant is hereby taxed with costs of the transfer of the case.

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¹It its Complaint, Plaintiff alleged that the Defendant is a foreign corporation doing business in Florida. See Plaintiff’s Complaint, paragraph 3, Docket # 2. Likewise, in its Answer the Defendant admitted this allegation. See Defendant’s Answer, paragraph 3, Docket # 20.

²A “floating” forum selection clause does not specifically identify a geographic location or specifically-named jurisdiction, for example Volusia County Court. Rather it ties the chosen forum to another operative fact determined by examination of the underlying facts of an individual case.