26 Fla. L. Weekly Supp. 604a
Online Reference: FLWSUPP 2607MCKEInsurance — Venue for breach of contract action against insurer that is domestic corporation is not proper in Volusia County where insurer has agents doing business in county but does not maintain office there, and there is no allegation that cause of action arose there — Case is transferred to county where insurer maintains office
OMNICARE MEDICAL CENTER, INC., a/a/o Allen Mckee, Plaintiff, v. WINDHAVEN INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Volusia County. Case No. 2018 11383 CODL. August 20, 2018. Christopher Kelly, Judge. Counsel: Joe Engel, Longwood, for Plaintiff. John Mollaghan, Staff Attorney, Windhaven Insurance, Miami, for Defendant.
ORDER ON DEFENDANT’S MOTION TO DISMISSOR IN THE ALTERNATIVE TO TRANSFER VENUE.
THIS CAUSE, having come before the Court, and the Court having heard arguments of both parties’ counsel, and the Court being advised in the premises, it is hereby:
ORDERED AND ADJUDGED that:
1. Defendant’s Motion to Dismiss or in the Alternative to Transfer Venue be granted.
2. Venue is proper under Fla Stat. 47.051 only where the cause of action arose, where the property in litigation is located, or where a domestic corporation has an office to transact business.
3. As this is a claim for breach of contract for alleged money damages, there is no property in litigation.
4. Also, Plaintiff never alleges in the Complaint that venue is proper because the cause of action arose in Volusia County.
5. Plaintiff relied for venue on the allegations that Defendant maintains an office to transact its usual business or, has agents, in Volusia County.
6. Defendant established that it is a domestic corporation by filing copy of the Certificate of Incorporation.
7. Defendant successfully rebutted the claim that Defendant maintained an office to transact its usual business in Volusia County through the affidavit of Vicky Horn.
8. The Court ruled that the Plaintiff’s allegations concerning the presence of agents selling policies or doing business do not support venue of a domestic corporation in Volusia County. As “(t)he appropriate test is whether venue has been lodged in the county where the domestic corporation has an office for transaction of its customary business.” Sunshine State Ins. Co. v. Munoz-Upton, 127 So. 3d 822, 824 (Fla. 3d DCA 2013) [38 Fla. L. Weekly D2514a].
9. Consequently, the Court ordered that the matter be transferred to Hillsborough County, because Defendant maintains an office there, which satisfies the requirements of Fla. Stat. 47.051.
10. Furthermore, per Fla. Stat. 47.091, Plaintiff will pay the filing fee required to transfer the matter to Hillsborough County.
