7 Fla. L. Weekly Supp. 578b
Insurance — Personal injury protection — Medical provider/assignee’s action against insurer — Venue — Forum non conveniens — Motion to change venue can be predicated solely on allegations evident on face of complaint — No abuse of discretion in granting motion to change venue to Hillsborough County where complaint alleged that provider submitted bill to insurer for MRI performed on insured, exhibits attached to complaint indicated that provider’s office was in Hillsborough County and that insured lived in that county; and the only allegation which placed venue in county in which complaint was filed was that insurer maintains agents who transact business in that county — Insurer did not waive right to raise issue of forum non conveniens by appearing in matter where insurer contemporaneously filed motion for change of venue based on forum non conveniens and an answer and affirmative defenses also raising issue of forum non conveniens — Evidentiary hearing not required where party moving for change of venue relies solely on record — Provider was given notice and opportunity to be heard before trial court ruled on motion
MTM DIAGNOSTIC, INC. as assignee of GERALDIN PENIA, Appellant, v. GEICO GENERAL INSURANCE COMPANY, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA199-37. Lower Ct. Case No. SCO98-7969. Appeal from the County Court, Orange County, Jerry L. Brewer, Judge. Counsel: McKeever, Albert & Barth, P.A. Elizabeth S. Conan, and Brian T. Forman, for Appellant. Rogers, Dowling, Fleming & Coleman, P.A., David C. Knapp, for Appellee.
(BEFORE KANEY, WATTLES and PRATHER, JJ.)
ORDER AFFIRMING TRIAL COURT
(PER CURIAM.) Appellant, MTM Diagnostic, Inc., as assignee of Geraldin Penia (“MTM”), seeks review of the trial court’s order granting Appellee, Geico General Insurance Company’s (“Geico”), Motion to Change Venue based upon forum non conveniens. This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(1). Pursuant to Florida Rule of Appellate Procedure 9.320, this Court dispenses with oral argument. For the reasons expressed below, the order of the trial court is affirmed.
On or about December 1, 1998, MTM filed a Complaint against Geico alleging that Geico had failed to pay personal injury protection benefits on behalf of its insured, Penia, for medical services rendered by MTM to Penia on September 14, 1998. MTM attached a copy of the bill and the form submitted to Geico for payment. On or about January 4, 1999, Geico filed an Answer and Affirmative Defenses and a Motion to Change Venue.1 In its Motion to Change Venue, Geico argued that the face of the pleadings indicated that Orange County was an inconvenient forum and that the proper forum was Hillsborough County, Florida.
On or about January 6, 1999, MTM filed a Denial of Allegations in Defendant’s Motion to Change Venue and a Motion for Protective Order. In its Denial, MTM requested an evidentiary hearing pursuant to section 47.111, Florida Statutes. In its Motion for Protective Order, MTM sought the right to depose any affiant presented to support Geico’s Motion to Change Venue.
On or about March 12, 1999, Geico filed a Notice of Hearing regarding its Motion to Change Venue and MTM’s Motion for Protective Order. A hearing was held on April 27, 1999. At the hearing, the trial court indicated that it considered the hearing to be an evidentiary hearing for the purposes of determining venue. Geico presented no witnesses or affidavits and relied solely on the record pleadings. At the hearing, MTM’s counsel stipulated to the information contained in the Complaint and exhibits attached thereto which indicated that Penia resided in Tampa, was treated in Tampa, that MTM’s offices were in Tampa and that MTM had submitted its bill for payment to Geico’s Lakeland office. The trial court granted Geico’s Motion to Change Venue. MTM filed a Notice of Appeal of Non-Final Order on March 10, 1999.
It is within the sound discretion of the trial court to change the venue of a trial and the trial court’s decision should not be disturbed absent a demonstration of a palpable abuse or grossly improvident exercise of discretion. See Tindall v. Smith, 601 So. 2d 627 (Fla. 2d DCA 1992); Hu v. Crockett, 426 So. 2d 1275 (Fla. 1st DCA 1983); Fla. R. Civ. P. 1.061(a).
Where venue is proper in more than one county, the choice of forum rests with the plaintiff. See P.V. Holding v. Tenore, 721 So. 2d 430, 431 (Fla. 3d DCA 1998). A plaintiff’s choice of forum is not paramount, however, and a plaintiff’s venue privilege will not be honored where the convenience of the parties or witnesses, or the interests of justice, require the action be transferred. Id. Section 47.122, Florida Statutes, provides that “[f]or the convenience of the parties or witnesses or in the interests of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought.” Florida Rule of Civil Procedure 1.061(a) provides that:
An action may be dismissed on the ground that a satisfactory remedy may be more 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 equipose, 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.
The party seeking to change venue based upon forum non conveniens has the burden of proof. See Vero v. Vero, 659 So. 2d 1348 (Fla. 5th DCA 1995); Hamm v. Ambassador Insurance Company, 456 So. 2d 966 (Fla. 5th DCA 1984).
First, MTM argues that the trial court’s order was not predicated on sufficient facts. Specifically, MTM argues that Geico failed to provide any sworn proof to support its claim of forum non conveniens and, therefore, the trial court abused its discretion in granting the Motion to Change Venue. Geico argues that it could properly rely on the face of the record pleadings, specifically, the Complaint filed by MTM. A review of the hearing transcript indicates that the trial court also believed that it could rely on these pleadings without further sworn proof being presented.
Geico argues that the Fifth District Court of Appeal has permitted a change of venue based on forum non conveniens to stand simply on the face of the pleadings, citing Ground Improvement Techniques, Inc. v. Merchants Bonding Co., 707 So. 2d 1138 (Fla. 5th DCA 1998). In that case, the appellate court held that “a dismissal based on forum non conveniens, if not evident from the allegations appearing on the face of the complaint, must be supported by record evidence, either in the form of affidavits or live testimony.” Id. at 1139; see Botton v. Elbaz, 722 So. 2d 974 (Fla. 4th DCA 1999) (agreeing with the holding in Ground Improvement Techniques). The Fifth District Court of Appeal ultimately upheld the trial court’s transfer of venue for forum non conveniens which was based on the allegations on the face of the complaint in that matter.
The Court finds that Geico’s Motion to Change Venue could be predicated solely on the allegations evident on the face of the Complaint. Thus, the question becomes whether there was a sufficient factual basis in the Complaint to support the trial court’s decision to grant the Motion to Change Venue.
The Complaint alleges that MTM submitted a bill to Geico for an MRI performed on Penia on or about September 14, 1998. MTM attached two exhibits to the Complaint to support this claim. The first exhibit is a report from Dr. Francisco Menendez, the doctor who reviewed the MRI for MTM. The top of the report indicates that MTM’s office is in Tampa, Florida. MTM also submitted a Health Insurance Claim Form to Geico’s Claims Department. The Claims Department address listed is in Lakeland, Florida. The form indicates that Penia resides in Tampa, Florida and that MTM’s office is located in Tampa, Florida. At the hearing on the Motion to Change Venue, MTM’s counsel stipulated to these facts. The only allegation which places venue in Orange County is that Geico maintains agents who transact business in Orange County. There is no allegation as to where the accident occurred. Based on the allegations in the pleadings, the Court finds that the trial court did not abuse its discretion in granting Geico’s Motion to Change Venue.
Second, MTM argues that to permit a change of venue would permit Geico to forum shop to avoid the ruling of Delta Casualty Ins. Co. v. Pinnacle Medical, Inc., 721 So. 2d 321 (Fla. 5th DCA 1998). It could easily be said that MTM’s decision to file this case in Orange County was forum shopping as well. While the Fifth District Court of Appeal had found that the arbitration requirement of section 627.736(5), Florida Statutes, was unconstitutional, the Second District had not reached the same conclusion, and arbitration was still mandatory in the Second District at the time this action was filed. See Omni Insurance Company v. Special Care Clinic, Inc., 708 So. 2d 314 (Fla. 2d DCA 1998).2
Third, MTM argues that Geico waived its right to raise the issue of forum non conveniens because it appeared in this matter. This argument is also without merit. Geico contemporaneously filed an Answer and Affirmative Defenses and a Motion for Change of Venue based on forum non conveniens. Further, in its Answer and Affirmative Defenses, Geico also raised the issue of forum non conveniens and alleged that Hillsborough County was the proper forum.
MTM’s final argument is that the trial court erred in transferring venue to Hillsborough County without holding an evidentiary hearing on the matter. MTM argues that it filed a Denial of Geico’s allegations and a Motion for Protective Order and that it was entitled to an evidentiary hearing in this matter pursuant to section 47.111, Florida Statutes. The trial court held a hearing on the Motion for Change of Venue of which MTM had proper notice and an opportunity to be heard. When MTM’s counsel raised the issue of an evidentiary hearing, the trial court advised counsel that it consider the present hearing to be an evidentiary hearing on the matter. While it is clear that an evidentiary hearing should be granted where sworn affidavits or other testimony are presented to support a Motion for Change of Venue, the Court finds that such a hearing is not necessary when a party relies solely on the record. In this case, as in Ground Improvement Techniques, MTM was given notice and an opportunity to be heard on the Motion to Change Venue. See Ground Improvement Techniques, Inc., 707 So. 2d at 1139. The Court finds that MTM’s claim that it was denied its due process rights to cross examine any of Geico’s witnesses is without merit where no witnesses were presented and it was clear Geico was going forward on the face of the Complaint only.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the trial court’s order is AFFIRMED. (KANEY, WATTLES, and PRATHER, JJ., concur.)
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1Geico raised forum non conveniens as an affirmative defense as well as filing the separate motion.
2This argument has been rendered moot based on the Florida Supreme Court’s recent decision in Nationwide Mutual Fire Insurance Company v. Pinnacle Medical, Inc., 25 Fla. L. Weekly S72 (Fla. February 3, 2000), wherein the Florida Supreme Court found that the mandatory arbitration provision of section 627.736(5), Florida Statutes, is unconstitutional.
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