6 Fla. L. Weekly Supp. 508a
Venue — Insurance — Maritime insurance — Suit brought by owners of damaged vessel after defendants suggested plaintiffs accepted less compensation for their losses than is covered under policy limits due to exchange rate — Forum selection clause in policy cannot operate as the sole basis for Florida to exercise personal jurisdiction over an objecting non-resident defendant — Service of suit clause in which underwriters agree “to submit to suit in any court of competent jurisdiction within the United States” does not foreclose transfer to another jurisdiction where the interest of justice and convenience of witnesses would be served by such transfer — Factors weigh in favor of defendant’s motion to dismiss for forum non conveniens where case involves dispute between non-U.S. resident and foreign entity; claim arose from accident which befell a foreign-flagged vessel, owned by a non-U.S. citizen, with damage and repair both occurring in Europe; insurance policy was entered into by non-U.S. citizen and foreign-based entity; there are no allegations that law of more appropriate forum would be unreasonably detrimental to either party; and alternative forum is adequate
SLOAN FINANCIAL CORPORATION, a corporation, and SLOAN MAURAN, an individual, Plaintiffs, v. UNDERWRITERS AT LLOYD’S, LONDON, and those certain other Underwriters subscribing to Policy Number 97YP7016 and Certificate Number 039826/04, Defendants. 17th Judicial Circuit in and for Broward County. Case No. 98-392 (09). May 17, 1999. Robert Lance Andrews, Judge.
SECOND ORDER ON DEFENDANTS’ MOTION TO DISMISS FOR FORUM NON CONVENIENS
THIS CAUSE came before the Court upon Defendants’ Motion to Dismiss the Amended Complaint for Forum Non Conveniens. This Court, after having reviewed the court file, read the briefs, heard argument of counsel, considered all applicable law, and being fully advised in the premises, finds and decides as follows:
The Court previously issued an Order on January 13, 1999 [6 Fla. L. Weekly Supp. 280a], in which it dismissed this cause sua sponte for lack of jurisdiction. Thereafter, Plaintiffs SLOAN FINANCIAL CORPORATION (SFC)1 and SLOAN MAURAN (SLOAN)2 filed an Amended Complaint conforming to that Order. In response, Defendants UNDERWRITERS AT LLOYD’S, LONDON, (UNDERWRITERS) and those certain other Underwriters subscribing to Policy Number 97YP7016 and Certificate Number 039826/04, again moved to dismiss this cause, reasserting that a satisfactory remedy may be more conveniently sought in a jurisdiction other than Florida. The Court agrees.
The facts surrounding this matter are not in dispute. As stated in this Court’s previous Order, Plaintiffs’ vessel, the Beaugeste, dismasted in international waters off the coast of Africa while on a voyage to Florida.3 Substantial damage resulted, causing the captain and crew of the Beaugeste to have the vessel recovered and returned to Europe for repairs. Consequently, Plaintiffs timely filed a claim for that peril with their insurance company pursuant to a maritime insurance policy (Policy) in effect at that time. Much of the cost of repairs has been reimbursed. However, Plaintiffs assert that, as of now, UNDERWRITERS has suggested that SFC and SLOAN accept less compensation for their losses than is covered under the Policy limits due to the exchange rate; therefore, because the insurance policy was both issued and delivered within this venue, they are also entitled to attorney’s fees for that alleged breach of the Policy. Plaintiffs also bolster their choice of suit within Florida with the standard Service of Suit Clause (U.S.A.) found within the Policy. It states, in pertinent part:
It is agreed that in the event of the failure of Underwriters hereon or any of them to pay any amount claimed to be due hereunder, Underwriters hereon, at the request of the Assured, will submit to the jurisdiction of any Court of competent jurisdiction within the United States and will comply with all requirements to give such Court Jurisdiction and all matters arising hereunder shall be determined in accordance with the law and practice of such Court.
Conversely, the Defendants claim that a more appropriate forum lies in either Europe or Canada, because: (1) there is a previous action between the same parties pending in a Canadian court; (2) all surveys and repairs took place in Europe; (2) there are no witnesses or parties possessing pertinent records located in Florida; (4) SLOAN is a Canadian citizen; (4) the Defendant company is based in England; and (5) the only connection with Florida is that the insurance policy was delivered here to Richard Mauran. After carefully considering all of the alternatives, this Court concludes that England would provide a more convenient jurisdiction for this cause.
Pursuant to Rule 1.061(a), Florida Rules of Civil Procedure,4
[a]n action may be dismissed on the ground that a satisfactory remedy may be conveniently sought in a jurisdiction other than Florida when:
(1) the trial court finds that an adequate alternate forum exists which possesses jurisdiction over the whole case;
(2) the trial court finds that all relevant factors of private interest favor the alternate forum, weighing in the balance a strong presumption against disturbing plaintiffs’ initial forum choice;
(3) if the balance of private interests is at or near equipoise, the court further finds that factors of public interest tip the balance in favor of trial in the alternate forum; and
(4) the trial judge ensures that plaintiffs can reinstate their suit in the alternate forum without undue inconvenience or prejudice.
This Court finds that all of these elements can be satisfied.
As a preliminary matter, it is clear that a forum selection clause “cannot operate as the sole basis for Florida to exercise personal jurisdiction over an objecting non-resident defendant.” McRae v. J.D./M.D., Inc., 511 So. 2d 540, 542 (Fla. 1987). Further, a service of suit clause, in which the underwriters agree to “submit to suit in any court of competent jurisdiction within the United States,” does not foreclose transfer to another jurisdiction where the interest of justice and convenience of witnesses would be served by such transfer. Upjohn Co. v. General Accident Ins. Co. of America, 581 F. Supp. 432, 436 (D.C. Cir. 1984). This Court adopts that reasoning as sound in the instant case.
As to the first element required under Rule 1.061 for dismissal of this cause, the Court finds that an adequate alternate forum exists which possesses jurisdiction over the whole case. Defendant UNDERWRITERS is based in Great Britain, and Plaintiffs voluntarily contracted with a British company for insurance coverage. There have been no allegations that any legal infirmities exist which would prevent an English court from hearing this matter. Hence, the first element of Rule 1.061 is satisfied.
Second, all relevant factors of private interest favor the alternate forum. If these Plaintiffs had filed in their home forum, the Court would be compelled to recognize a strong presumption against disturbing their initial forum choice. This requirement is given less consideration when the plaintiffs are foreign. To wit: “[b]ecause the central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient, a foreign plaintiff’s choice [of forum] deserves less deference.” Ciba-Geigy Ltd., BASF A.G. v. Fish Peddler, Inc., 691 So. 2d 1111 (Fla. 4th DCA 1997) (citations omitted). Instead, four private interest factors must be considered: (1) access to evidence and relevant sites; (2) access to witnesses; (3) enforcement of judgments; and (4) the practicalities and expenses associated with litigation. Id. at 1118.
Here, the evidence and relevant sites can be found in Europe. The damage alleged to be a covered peril, as well as the repairs thereto, all occurred in Europe. No event other than the issuance and delivery of the Policy transpired in Florida. Further, all of the witnesses to the accident and repairs reside in Europe. No vital witness to this cause makes Florida his or her permanent home. In addition, no evidence has been presented suggesting that a judgment rendered in England would not be enforceable. Finally, the practicalities and expenses associated with this cause would be inappropriate for litigation within Broward County.
Florida Courts have emphatically stated that they “exist to judge matters with significant impact upon Florida’s interests, especially in light of the fact that the taxpayers of this state pay for the operation of its judiciary.” Kinney System Inc. v. Continental Ins. Co., 674 So. 2d 86, 93 (Fla. 1996). Forum shopping by out-of-state interests is neither appreciated nor tolerated where the Courts are already congested and the burden to the taxpayers cannot be justified. Id. Thus, absent any evidence that there are any documents or witnesses relevant to this forum, or that enforceability would present a problem in an alternative forum, the second element for dismissal has been met.
Third, public interest clearly favors a trial in the alternate forum. After the private interest analysis, “[i]f the relative conveniences and inconveniences to the parties as to the choice of forum are `at or near equipoise,’ then the court proceeds to the [next] step.”5 Ciba-Geigy Ltd., BASF A.G., 691 So. 2d at 1118. Three public interest factors must be considered: (1) courts may protect their dockets from cases which arise within their jurisdiction, but which lack significant connection to it; (2) courts may encourage other localities to hear cases which have arisen in their jurisdictions; and (3) courts may consider their familiarity with governing law when deciding whether to retain jurisdiction over a case. Kinney System, Inc., 674 So. 2d at 92.
The instant case concerns a dispute between a non-U.S. resident and a foreign entity. It arose from an accident which befell a foreign-flagged vessel, owned by a non-U.S. citizen, that was both damaged and repaired in Europe. The subject insurance Policy was also entered into by a non-U.S. citizen and a foreign-based entity. Therefore, there is no significant nexus to Florida; England is a more appropriate forum; and there have been no allegations that the law of either forum would be unreasonably detrimental to either party.
Fourth, Plaintiffs can reinstate their suit in the alternate forum without undue inconvenience or prejudice. As stated above, no allegations have been advanced that litigating this cause in England would be “so clearly inadequate or unsatisfactory that [the remedy would be] no remedy at all.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254, 102 S. Ct. 252, 265, 70 L. Ed. 2d 419 (1981). As a result, Defendants’ Motion to Dismiss for Forum Non Conveniens has merit.
Accordingly, it is hereby
ORDERED AND ADJUDGED that Defendants’ Motion to Dismiss for Forum Non Conveniens is GRANTED.
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1SFC is a Liberian corporation, and the loss payee of the subject insurance policy. SFC is represented by Richard Mauran, its sole officer and shareholder.
2SLOAN is a Canadian citizen, and the daughter of Richard Mauran.
3Plaintiffs allege, in their Complaint, that the Beaugeste spends three to four months per year traveling in Florida’s waters.
4The Commentary to the rule notes that “[t]his section was added to elaborate on Florida’s adoption of the federal doctrine of forum non conveniens in Kinney System, Inc. v. Continental Insurance Co., 674 So. 2d 86 (Fla. 1996), and it should be interpreted in light of that opinion.”
5“ `Equipoise’ means simply that the advantages and disadvantages of the alternate forum will not significantly undermine or favor the `private interests’ of any particular party, as compared with the forum in which suit was filed.” Kinney System Inc., 674 So. 2d at 91.
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