26 Fla. L. Weekly Supp. 300b
Online Reference: FLWSUPP 2604HENNInsurance — Venue — Where insurer is domestic corporation, and medical provider alleged that insurer maintained agents or other representatives for transaction of its customary business in Volusia County but failed to allege that insurer has or usually keeps an office for transaction of its customary business in Volusia County, provider has not alleged sufficient facts to establish that venue is proper in Volusia County under its chosen basis of venue — Case dismissed without prejudice
TAMPA BAY EMERGENCY PHYSICIANS, PL, a/a/o Shannon Hennion, Plaintiff, v. WINDHAVEN INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2016 20479 CONS, Division 73 (Miller). June 6, 2018. A. Christian Miller, Judge. Counsel: William England, Bradford Cederberg, Orlando, for Plaintiff. Daniella Mogg, Windhaven Insurance Company, Tampa, for Defendant.
ORDER DISMISSING CASE WITHOUT PREJUDICE
THIS CAUSE having come before the Court upon the Defendant’s Motion to Dismiss or Transfer Venue to Hillsborough County, and the Court having considered the Motion, the Plaintiff’s response, the exhibits and arguments submitted by counsel, and the Court otherwise being fully advised in the premises does find as follows:
1. The issue before the Court is whether or not venue is proper in Volusia County.
2. As Defendant is a corporation, the relevant venue statute1 is Florida Statute 47.051.
3. Defendant contends, and Plaintiff agreed at the hearing, that it is a domestic corporation.
4. Therefore, absent some other agreement, it can only be sued in Florida where: (a) it has, or usually keeps, an office for the transaction of its customary business, (b) the cause of action accrued, or (c) the property involved in the litigation is located.
5. Plaintiff only attempted to establish venue in Volusia County under theory (a) above. See generally, Plaintiff’s Complaint, Docket # 2.
6. It is initially the Plaintiff’s burden to plead sufficient facts to establish that venue is proper in the chosen forum. Pozo v. Roadhouse Grill, Inc., 790 So. 2d 1255, 1258 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D1940a].
7. In this case, Plaintiff’s allegations attempting to establish venue in Volusia County are found in paragraphs three and four. See Plaintiff’s Complaint, Docket # 2.
8. Paragraph three alleges, “[a]t all times material hereto, Defendant has been a foreign2 corporation duly licensed to transact insurance business in the State of Florida.” Id.
9. Paragraph four alleges, “[a]t all times material hereto, Defendant maintained agents or other representatives for the transaction of its customary business in Volusia County, Florida.” Id.
10. However, the allegations pled by Plaintiff are not the standard required for a domestic corporation.
11. As Florida Statute 47.051 clearly states, a domestic corporate defendant must have, or usually keep, an office for the transaction of its customary business in the chosen county, not just agents or other representatives.
12. Therefore, the Plaintiff has not alleged sufficient facts to establish that venue is proper for this Defendant in Volusia County based on its chosen theory.
WHEREFORE it is hereby ORDERED AND ADJUDGED as follows:
A. The Defendant’s Motion to Dismiss or Transfer Venue to Hillsborough County is GRANTED.
B. This case is hereby DISMISSED WITHOUT PREJUDICE for Plaintiff to refile in any venue where it can in good faith allege venue is proper under Florida Statute 47.051.
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1Plaintiff argues none of Chapter 47, Florida Statutes applies to cases governed by the Florida Small Claims Rules. However, the Court disagrees, and would point to the commentary following Rule 7.060 that states “[i]f the statutory venue, chapter 47, Florida Statutes is changed by the legislature, this change should be reflected in the required notice.” Fl. Sm. Cl. R. 7.060, Court Commentary, 1980 Amendment. The Court concludes that the listing of possible venues in Rule 7.060 is intended to be a simple, straightforward summary and explanation of Florida law concerning the places a defendant can be sued, rather than a distinct set of venue rules only applicable to small claims cases.
2As noted in paragraph three ante, Plaintiff candidly admitted at the hearing on the Motion to Dismiss that Defendant was a domestic corporation based upon its filing of the Florida Certificate of Incorporation.
