28 Fla. L. Weekly Supp. 353a
Online Reference: FLWSUPP 2804HALL
Insurance — Personal injury protection — Venue — Medical provider is entitled to file suit in county where payment under policy is owed — Forum selection clause that specifies that legal action “to determine coverage” under policy shall be filed and maintained in county where policy was issued is not applicable to venue of suit seeking benefits, not coverage — Further, it would be unjust to enforce forum selection clause that is result of insurer’s overwhelming bargaining power
HALLANDALE BEACH ORTHOPEDICS, INC., Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. CONO20004218, Division 73. June 15, 2020. Steven P. Deluca, Judge.
ORDER DENYING DEFENDANT’S MOTIONTO DISMISS FOR IMPROPER VENUE
THIS CAUSE having come before the Court upon Defendant’s Motion to Dismiss for Improper Venue pursuant to its venue selection clause and Florida Domestic Corporation Status via Fla. Stat. §47.051, and the Court having been advised in the premises is denying the defendant’s Motion for the following reasons:
Relevant Facts
The Plaintiff, an assignee Medical Provider, filed suit against the Defendant PIP insurer for breach of contract and breach of the PIP statute. The Defendant responded with its Motion to Dismiss based on its venue selection clause and based on Fla. Statute §47.051. The Defendant filed a corporate representative affidavit, the policy of insurance, the declaration sheet and the police report to support its motion. The documents filed reflect the patient was the named insured, was possibly injured in a crash during the policy period, and was driving the insured car during the policy period See police report and declaration sheet.
There is no dispute the Plaintiff is located in Broward County, payment is due in Broward County, the patient’s home address is listed in Miami Dade County, the accident was in Miami Dade County, the agent that sold the policy was located in Miami Dade County, and the Defendant’s corporate office is in Miami Dade County. See adjuster affidavit and complaint.
Defendant’s Argument
Defendant argues the Plaintiff’s suit must be dismissed and re-filed in Miami Dade County for two reasons. First, the venue selection clause which states:
Any legal action against us to DETERMINE COVERAGE under this policy shall be filed and maintained in the county where the policy was issued.
Second, pursuant to F.S. §47.051 suit should be filed in Miami Dade because it is a Florida Corporation with is corporate office is located in Miami Dade and it transacts its ordinary business of insurance in Miami Dade.
Plaintiff’s Argument
The Plaintiff argues the Defendant’s motion must fail because the PIP statute does not provide for a forum selection clause to allow United to demand all suits to determine coverage to be filed in the county were the policy was issued, there are no binding opinions that would give a PIP insurer this ability, there are no binding opinions that address the Defendant’s policy, the Defendant’s clause does not apply because the Plaintiff did not file suit to determine coverage as the Plaintiff filed suit for breach of contract and violation of the PIP statute, this language would not apply because it is not clear, obvious, and unambiguous, the clause is not enforceable as it is unjust, and the Plaintiff is located in Broward County and the money owed is in Broward County, .
Analysis
There is no question the Plaintiff is located in Broward County and payment is due in Broward County. The Plaintiff, as a matter of law, is entitled to file suit where the money is owed. “Venue is proper for suits on contract or other obligations in the county where payments should have been made.” Sheffield Steel Products, Inc. v. Powell Brothers, Inc., 385 So.2d 161 (Fla. 5th DCA 1980). Therefore, the Plaintiff has the right to file suit in Broward County. The court denies the Defendant’s §47.051 motion.
As to the forum selection clause argument that argument requires more analysis. There are no binding cases that would authorize a PIP insurer to inject a forum selection clause into a PIP policy of insurance. There are no binding cases that address the Defendant’s specific forum selection clause language. Notwithstanding, this court finds the Defendant’s policy language would not apply to the Plaintiff as the Plaintiff did not file suit for the court to “determine coverage” as is stated in specific language of the Defendant’s policy.
According to the policy of insurance, at page 17, a person can seek coverage or benefits. Based on the four corners of the complaint the Plaintiff filed suit seeking “benefits” and not “coverage”. The court will interpret the policy against the Defendant is the drafter and will find this forum selection clause not applicable based on a strict reading of the policy language. See Pasteur Health Plan, Inc. v. Salazar, 658 So.2d 543, 544 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D1083a].
If there is an alternative interpretation of this forum selection clause it would make the language unclear and ambiguous which would make the language unenforceable. Forum selection clauses are required to be concise, obvious and unambiguous. See Friedman v. American, 831 So.2d 1165 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D564a] where the court found a venue selection clause to be concise, obvious and unambiguous. Swarovski v. House of China 848 So.2d 452 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D1527a] where the court held the selection clause was unambiguous; Bombardier Capital, Inc. v. Progressive Marketing Group, Inc., 801 So.2d 131 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D2697a] the motion was based on an unambiguous mandatory forum selection clause; Satelites Mexicanos v. Turn Key 847 So.2d 1068 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D1371e] the court reversed finding the forum selection clause was mandatory and unambiguous; Teco Barge v. Hagan, 15 So.3d 863 (Fla. 2d DCA 2009) [34 Fla. L. Weekly D1537a] the court found the language was clear and unambiguous; Celistics v. Gonzalez, 22 So.3d 824 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2456a] the court found there was plain and unambiguous language.
Additionally, there are three recognized exceptions to the enforcement of a forum selection clause where 1) was the forum selection clause tainted by fraud; 2) where the forum selection clause is the product of overwhelming bargaining power on the part of one party, and 3) where the forum selection clause is the sole basis upon which to create jurisdiction in a chose forum. Bombardier Capital v. Progressive Marketing, 801 So.2d 131 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D2697a].
The court finds the policy of insurance is a contract of adhesion and is the product of Defendant’s overwhelming bargaining power. The insured was required to buy a Florida PIP policy of insurance to drive in Florida, the insured could not negotiate the terms and conditions, and there is no obligation of the insurer to provide the policy terms before the policy is sold and there is no evidence the insured received the policy before the contract was insurance was purchased. See Pasteur Health v. Salazar, 658 So.2d 543, 544 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D1083a] for the proposition that insurance polices are contracts of adhesion.
The court finds it would be unjust to enforce the forum selection clause as the terms and conditions of a PIP policy are dictated by the No Fault Statute and the No fault Statute does not include any provision to allow an insurer to include a forum selection clause. The Defendant’s forum selection clause is overwhelmingly one-sided as the Defendant knew when it sold the policy of insurance that its insureds can get into a crash in any county in the State, receive treatment in any county, receive repairs to its car in any county in the State, insureds can move to any county in the State, and its insureds can get sued in any county in the State. The court finds it would be “unjust” to enforce this one sided language. Bombardier Capital v. Progressive Marketing, 801 So.2d 131 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D2697a].
The court also finds the following county court decisions of to be persuasive. See Health Diagnostic a/a/o Gonzalez v. United Auto, CONO 11-11330 (70) (Fla. Broward County Court 2012); Health Diagnostic a/a/o Castrejon v. United, CONO 12-009345 (71)(Fla. Broward County Court 2015); Elite Spine a/a/o Roman v. United, 19-5033 (72)(Fla. Broward County Court 2019) where other courts denied United’s Motion to Dismiss based on venue.
Defendant shall file an answer and respond to outstanding discovery within 45 days of June 3, 2020.
