27 Fla. L. Weekly Supp. 73b
Online Reference: FLWSUPP 2701DAVIInsurance — Personal injury protection — Venue — Forum selection clause
UNIVERSITY COMMUNITY HOSPITAL, INC. d/b/a FLORIDA HOSPITAL TAMPA, as assignee of Xavier Davis, Plaintiff, v. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2018-SC-1029-0. March 5, 2019. Gisela T. Laurent, Judge.
ORDER ON DEFENDANT’S MOTION TO DISMISSFOR LACK OF VENUE
THIS MATTER having come before this Honorable Court on the Defendant’s Motion to Dismiss for Lack of Venue, or to transfer venue, based upon the Forum Selection Clause within the insurance policy at issue, bearing certificate of service date March 12, 2018, and this Honorable Court having heard arguments of counsel on February 6, 2019 and being otherwise fully advised in the premise, FINDS as follows:
FACTS
The subject action involves a claim for personal injury protection insurance benefits filed by the Plaintiff UNIVERSITY COMMUNITY HOSPITAL d/b/a FLORIDA HOSPITAL TAMPA (hereinafter “Plaintiff’) as assignee of Xavier Davis (hereinafter “claimant”) against the Defendant, USAA CASUALTY INSURANCE COMPANY (hereinafter “Defendant”), in the County Court in and for Orange County. The Plaintiff brings suit in Orange County based on an accident which according to the complaint occurred on July 28, 2017 in which the Claimant was involved.
The insurance policy in question has a Forum Selection Clause which specifically states “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.” On July 10, 2018, the Claimant filed Affidavit of Xavier Davis affirming his address to be 7307 S. Sherrill St. Tampa, Florida 33616 in Hillsborough County, Florida at the time of the accident that occurred on July 28, 2017. This Affidavit was not contested at the evidentiary hearing. Additionally, the Business Records provided by USAA, specifically the Automobile Policy Packet, show the same address in Hillsborough County, Florida that the Claimant reports in his Affidavit.
The Defendant seeks enforcement of the Forum Selection Clause as a legally binding contract. The Plaintiff asserts the case should remain in Orange County because there is a legal presumption of correctness in favor of the Plaintiff’s choice of venue that should not be disturbed; the Defendant is a foreign corporation doing business in Florida who maintains agents or other representatives for the transactions of its customary business in Orange County, Florida. Plaintiff also asserts that bills are due and payable in Orange County Florida. However, no such records were filed with the Court for consideration.
LEGAL ANALYSIS
A plaintiff’s forum selection is presumptively correct. Safety Nat. Cas. Corp. v. Florida Mun. Ins. Trust, 818 So.2d 612 (Fla. 5th DCA 2002) [27 Fla. L. Weekly D1172c]. The party seeking the change in venue has the burden of establishing that the initial choice by the plaintiff was improper and not just that venue is proper elsewhere. Crescent Beach, Inc. v. Jarvis, 435 So. 2d 396 (Fla. 5th DCA 1983). Florida courts have long held that contracting parties have the right to select and agree on a forum in which to resolve future disputes. Golden Palm Hospitality, Inc. v. Stearns Bank Nat. Ass’n, 874 So.2d 1231 (Fla. 5th DCA 2004) [29 Fla. L. Weekly D1302a]. This right is premised on the generally accepted principle that “forum selection clauses provide a degree of certainty to business contracts by obviating jurisdictional struggles and by allowing parties to tailor the dispute resolution mechanism to their particular situation.” Id. Citing Manrique v. Fabbri, 493 So.2d 437, 439 (Fla. 1986). Absent a showing that a mandatory forum selection clause is unreasonable or unjust, a trial court must enforce the clause. Manrique at 439.
Whether a forum selection clause is mandatory or permissive depends on the language indicating exclusivity. Sonus-USA, Inc. v. Thomas W. Lyons, Inc., 966 So.2d 992, 993 (Fla. 5th DCA 2007) [32 Fla. L. Weekly D2336a]. The words “shall or must” trigger a mandatory forum selection. Id. However, a forum selection clause will be deemed to be permissive if it does not exclusively decide or select the appropriate venue or jurisdiction for litigation. Id. Citing Golden Palm Hospitality, 874 So 2d at 1236; Regal Kitchens, Inc. v. O’Connor & Taylor Condo. Constr., Inc., 894 So.2d 288, 289 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D405a].
If a forum selection clause “unambiguously” mandates that litigation be subject to an agreed upon forum, then it is reversible error to ignore the clause, unless the Plaintiff shows the clause is unreasonable or unjust. See Sonus-USA at 993; see also Manrique at 439.
In the instant case, the clause in question specifically states “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.” The clause is not ambiguous or more favorable to either party — it’s just limited to where the insured lived at the time of the accident, unless both parties agree to something else. The “must” provision triggers a mandatory forum selection clause standard. The Plaintiff failed to present any record evidence to support a showing that the mandatory selection clause was unreasonable or unjust in this case.
WHEREFORE, the Defendant’s Motion to Dismiss for Lack of Venue with Supporting Memorandum of Law is GRANTED IN THE ALTERNATIVE AS FOLLOWS:
1. Pursuant to F.S. 47.051 The Court hereby TRANSFERS VENUE to HILLSBOROUGH COUNTY, FLORIDA;
2. Pursuant to F.S. 47.091, The Plaintiff shall pay the cost associated with transferring the above styled case to Hillsborough County.
3. The Plaintiff has requested a STAY of this ORDER PENDING APPEAL in their Response in Opposition to Defendant’s Motion to Dismiss/Transfer Venue, and Plaintiff’s Motion to Stay Transfer. The Court FINDS said request reasonable and GRANTS the Plaintiff’s request for a STAY for further review of this Order by an appellate court.
