26 Fla. L. Weekly Supp. 500a
Online Reference: FLWSUPP 2606HUDSInsurance — Venue — Insurer that only participated in limited discovery and maintained objection to venue in answer and affirmative defenses and in motion to dismiss did not waive right to contest venue — Forum selection clause that mandates that insured bring action in county where insured resides at time of accident is not ambiguous or permissive — Assignee is bound by mandatory venue clause
EMERGENCY PHYSICIANS, INC. d/b/a EMERGENCY RESOURCES GROUP as assignee of Kathy Hudson-Pratt, Plaintiff, v. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2017 35327 COCI. Division 84. August 13, 2018. Judith Campbell, Judge. Counsel: William England, for Plaintiff. James C. Rinaman, III, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION TOTRANSFER VENUE TO DUVAL COUNTY
This cause came on to be heard before the Court on August 8, 2018, upon 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. After considering the motions, having heard argument of counsel, and being otherwise fully advised, it is hereby,
ORDERED AND ADJUDGED:
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 GRANTED.
1. Court finds Defendant did not waive venue. Carnival Corp. v. Booth, 946 So. 2d 1112 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D3115a]. Plaintiff filed suit on August 4, 2017, and Defendant was served on August 16, 2017. Plaintiff sent several pleadings to Defendant, which required responses. At pre-trial conference on October 10, 2017, Defendant preserved the right to object to venue. Defendant filed its Answer and Affirmative Defenses on October 30, 2018, objecting to venue. Defendant filed its Motion to Dismiss for Lack of Venue on February 6, 2018, and an Amended Motion to Dismiss on May 7, 2018. Based on the foregoing, the Court finds the Defendant only participated in limited discovery and did not waive its right to contest venue.
2. Venue clause is not ambiguous or permissive. Contracting parties have the right to select and agree to venue. Golden Palm Hospitality, Inc. v. Stearns Bank Nat. Ass’n, 874 So. 2d 1231 (Fla. 5th DCA 2004) [29 Fla. L. Weekly D1302a]. Venue clauses stating that litigation “must” and/or “shall” be filed in a particular forum are generally mandatory. Shoppes Ltd. Partnership v. Conn., 829 So. 2d 356 (Fla. 5th DCA 2002) [27 Fla. L. Weekly D2378a]. Unambiguous mandatory venue clauses must be followed. Texas Auto Mart, Inc. v. Thrifty Rent-A-Car Sys., 979 So. 2d 360 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1007d]. If the forum selection clause is not unreasonable or unjust then it is presumptively valid. America Online v. Booker, 781 So. 2d 423 (Fla. 3d DCA 2001) [26 Fla. L. Weekly D386a], Aqua Sun Magmt., Inc. v. Divi Time Ltd., 797 So. 2d 24 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D2005a].
There was no evidence that the venue clause was unreasonable or unjust. It is clear that the insured MUST bring the legal action in the county where he/she resided at the time of the accident. The fact that the insurer can agree otherwise does not make it ambiguous or permissive. The fact the clause is a “floating forum selection clause” does not make it unenforceable, as the location is easily ascertainable.
The instant case is distinguishable from Am. Boxing & Athletic Ass’n, Inc. v. Young, 911 So. 2d 862 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D2271c]. That case was an action in tort for a wrongful death in which the deceased signed a contract that stated that she agreed and consented that, in the event of a lawsuit, jurisdiction shall be in Michigan. The Second DCA stated that the wording is ambiguous in that the deceased consented that the venue shall be in Michigan. (Emphasis added.)
In the instant case, the venue clause does not give the insured a choice in the venue. It states that the legal action must be brought in the county where the insured lived at the time of the accident. The statement “unless we agree otherwise” does not change the mandatory provision. See, Weisser v. PNC Bank NA., 967 So. 2d 327 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D2387a]. The fact that the Defendant has agreed to litigating a case in a venue other than where the insured was living at the time of the accident does not make the clause a permissive one.
3. Assignee “stands in the shoes of the Assignor. Foster v. Foster, 703 So. 2d 1107 (Fla. 2d DCA 1997) [22 Fla. L. Weekly D2561b]. An assignee is in the same position as the assignor regarding rights and liabilities. Pendas, et al. v. Equitable Life Assur. Soc. Of United States, 120 Fla 253 (1937). Therefore, an assignee is bound by the mandatory venue clause in contract.
4. Defendant has filed an affidavit stating that the insured lived in Duval County at the time of the accident; therefore, Plaintiff must file suit in Duval County.
5. The costs of transferring the case shall be paid by Plaintiff. The matter shall be transferred to Duval County, Florida within 30 days of entry of this order.
