8 Fla. L. Weekly Supp. 531a
Insurance — Personal injury protection — Venue — Insurer’s claim that allowing medical provider to maintain suit in Orange County would promote forum shopping by provider seeking to avoid being compelled to arbitration in Hillsborough County under ruling in Orion Insurance Co. v. Magnetic Imaging Systems, Inc. lacks merit since the supreme court’s decision in Nationwide Mut. Fire Ins. Co. v. Pinnacle Medical, Inc. held the mandatory arbitration provision in section 627.736(5), Florida Statutes, to be unconstitutional — Record does not reflect any evidence demonstrating how insurer would be inconvenienced or burdened by litigating action in Orange County — Order transferring venue reversed
MTM DIAGNOSTIC, INC., d/b/a, FLORIDA PAIN CONTROL & TREATMENT CENTER, on behalf of MARIA LOPEZ, Appellant, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA 199-35. April 6, 2001. Appeal from the County Court for Orange County, Jerry L. Brewer, Judge. Counsel: Elizabeth S. Conan, for Appellant. Daniel P. Osterndorf, for Appellee.
(Before EVANS, BRONSON, BAKER, JJ.)
FINAL ORDER AND OPINION REVERSING TRIAL COURT
(PER CURIAM.) Appellant, MTM Diagnostic, Inc., d/b/a Florida Pain Control & Treatment Center (“MTM”), on behalf of Maria Lopez (“Lopez”), appeals an order entered in favor of Appellee, State Farm Mutual Automobile Insurance Company (“State Farm”), transferring venue. This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(1). After consideration of the record on appeal and parties’ briefs, this Court dispenses with oral argument pursuant to Florida Rule of Appellate Procedure 9.320 and reverses the trial court’s order.
MTM filed a complaint on September 17, 1998 against State Farm for breach of contract for its failure to pay No-Fault benefits pursuant to an insurance policy issued to Lopez. State Farm filed a Motion to Dismiss or in the Alternative to Compel Arbitration/Motion to Transfer Venue, alleging that the action should be transferred to Hillsborough County due to improper and inconvenient forum. State Farm then withdrew the Motion and filed an Amended Motion to Transfer Venue, reserving its right to arbitrate the case in Hillsborough County.
MTM filed a Notice of Denial of Motion on November 6, 1998, requesting an evidentiary hearing on the matter. The Motion was set for a hearing. Prior to the hearing, State Farm filed an affidavit in support from Peggy Cawley, referring to the claim of Matilda James, not Lopez, the insured in this case. The trial court heard the Motion, and issued its Order, finding that the case should be heard in Hillsborough County “for the convenience of the parties and others considered.” The court also ordered MTM to bear the costs of the transfer.
In its Answer Brief, State Farm adds several pertinent facts concerning the venue issue. State Farm claims that the health insurance form attached to MTM’s original Complaint states that Lopez resides in Hillsborough County. In addition, State Farm’s Motion to Transfer Venue listed several reasons supporting the change, such as: the case was based on a claim dispute involving medical benefits for services rendered in Hillsborough County; the State Farm claims office that handled the subject claim is located in Hillsborough County; MTM is located in Hillsborough County; and the motor vehicle accident that allegedly caused the injuries took place in Hillsborough County. Also, another Affidavit of Peggy Cawley, which was filed with an earlier Motion to Dismiss and Compel Arbitration and Motion to Transfer Venue, that was withdrawn, refers to MTM and Lopez, and lists several reasons in support of a change in venue. The Affidavit also refers to Matilda James.
The standard of review for an order on a motion to transfer or dismiss for improper venue is abuse of discretion. See Carr v. Stetson, 741 So. 2d 567, 568 (Fla. 4th DCA 1999); Air South, Inc. v. Spaziano, 547 So. 2d 314, 315 (Fla. 4th DCA 1989). Section 47.122, Florida Statutes provides:
For 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.
While the trial court has broad discretion in venue matters, it has been held that the movant must furnish a sufficient factual basis for the exercise of that discretion. See Groome v. Abrams, 448 So. 2d 82, 83 (Fla. 4th DCA 1984). Another court characterized the court’s discretion as “not unbridled and must be predicated upon a showing that the parties or witnesses will suffer substantial inconvenience or undue expense due to the chosen forum.” Government Employees’ Ins. Co. v. Burns, 672 So. 2d 834, 836 (Fla. 3d DCA 1996).
The case of Brown & Williamson Tobacco Corp. v. Young, 690 So. 2d 1377 (Fla. 1st DCA 1997) stated that the most important factor to consider in Section 47.122 is the convenience of the witnesses, and “in order for a court to consider the convenience of the witnesses, the court must know who the witnesses are and the significance of their testimony.” See id. at 1379 (citing Hu v. Crockett, 426 So. 2d 1275, 1279 (Fla. 1st DCA 1983)).
MTM argues that the trial court erred in granting the venue transfer because State Farm failed to furnish a sufficient basis warranting the transfer. MTM cites to Florida cases requiring the moving party to file affidavits or other sworn proof to overcome the presumption that the plaintiff’s original choice of venue is correct. See Breen v. Huntley Jiffy Stores, Inc., 610 So. 2d 29 (Fla. 2d DCA 1992); Ground Improvement Techniques, Inc. v. Merchants Bonding Co., 707 So. 2d 1138 (Fla. 5th DCA 1998); Foster Marine Contractors, Inc. v. Southern Bell Tel. and Tel. Co., 541 So. 2d 114 (Fla. 4th DCA 1989). MTM argues that the trial court failed to follow binding precedent from the Fifth District by not following the position of Ground Improvement, 707 So. 2d 1138, which stated that a motion for dismissal based on forum non conveniens must be supported by affidavit or other evidence offered under oath.
MTM also alleges that the trial court erroneously applied the analysis from Kinney System, Inc. v. Continental Insurance Co., 674 So. 2d 86 (Fla. 1996), on the issue of venue under Section 47.122, Florida Statutes. They cite to Brown, 690 So. 2d at 1379 (citing E.I. DuPont De Nemours & Co. v. Fuzzell, 681 So. 2d 1195 (Fla. 2d DCA 1996)), which stated: “a Kinney analysis is not appropriate for determining a motion for change of venue within Florida under section 47.122.” Thus, MTM claims that a Kinney analysis only applies to venue considerations outside of Florida.
MTM argues that the evidence in the record is insufficient under the above case law to justify a change of venue. They claim that the affidavit of Peggy Cawley, which State Farm filed in support of its Motion, discusses a case involving Matilda James, and does not reference the Lopez case. MTM also claims that the affidavit is insufficient because is does not demonstrate the subject matter of her testimony and she was not called as a witness at the hearing in order to cure this defect. Further, MTM argues that the single affidavit failed to demonstrate any inconvenience or undue expense which would justify a change of venue and State Farm failed to meet its burden of proof in the trial court. See Young, 690 So. 2d at 1379, citing Hu, 426 So. 2d at 1279.
State Farm claims that venue is improper in Orange County for two reasons: allowing MTM to maintain its suit in Orange County would promote forum shopping; and the only logical interpretation of the venue statutes mandates that the case be filed where the cause of action accrued. State Farm claims that the only reason MTM originally filed suit on Orange County was to avoid being compelled to arbitration in Hillsborough County under the decision of Orion Insurance Co. v. Magnetic Imaging Systems, Inc., 696 So. 2d 475 (Fla. 3rd DCA 1997).
The Orion decision by the Third District Court of Appeals would require MTM to submit to arbitration of the dispute. However, the case of Delta Cas. Co. v. Pinnacle Medical, Inc., 721 So. 2d 321 (Fla. 5th DCA 1998) disagreed with the reasoning of the Orion case. Delta was subsequently affirmed by the Florida Supreme Court in Nationwide Mut. Fire Ins. Co. v. Pinnacle Medical, Inc., 753 So. 2d 55 (Fla. 2000). The Supreme Court of Florida declared both the mandatory arbitration provision and the prevailing party attorney’s fees provision in Section 627.736(5), Florida Statutes to be unconstitutional. The Florida Supreme Court concluded that the mandatory arbitration provision violated the right of medical providers to access to courts provided under article I, section 21, of the Florida Constitution. See id. at 55. Thus, the major underlying dispute in this case, and State Farm’s heavily argued point concerning forum shopping, are no longer an issue. See generally Progressive Exp. Ins. Co. v. MTM Diagnostics, Inc., 754 So. 2d 150 (Fla. 2d DCA 2000).
Aside from State Farm’s venue shopping argument, it also claims that Orange County is improper venue under a logical reading of the statute. State Farm argues that when determining which county is a most convenient forum under Section 47.122, Florida Statutes, Florida courts look to the following factors: where the cause of action accrued; where the parties are located; and where the witnesses are located. State Farm claims that these factors all weigh in favor of Hillsborough County as the most convenient venue, and cites to Hughes Supply, Inc. v. Pearl, 403 So. 2d 614 (Fla. 4th DCA 1981) and Hertz Corporation v. Rentz, 326 So. 2d 216 (Fla. 4th DCA 1976).
However, MTM claims that the record is devoid of any evidence of any inconvenience to State Farm’s witnesses and claims this is fatal to the lower court’s findings. MTM is correct because the trial court’s order deals mainly with the issue of the timing of a determination under Florida Rule of Civil Procedure 1.061(a) or Section 47.122, Florida Statutes. In its Order, the court cites to Ground Improvement, 707 So. 2d 1138 (Fla. 5th DCA 1998) as the standard requiring support for a motion to dismiss based on Rule 1.061, Fla. R. Civ. P. and Section 47.122, Florida Statutes, by affidavit or other evidence under oath. However, the court does not make any findings as to the existence of such evidence or supporting affidavit.
“A plaintiff’s forum selection is presumptively correct, and in order to successfully challenge that selection, the burden is upon the defendant to show either substantial inconvenience or that undue expense requires a change for the convenience of the parties or witnesses.” Government Employees’ Ins. Co. v. Burns, 672 So. 2d 834 (Fla. 3d DCA 1996) (citing Hamm v. Ambassador Ins. Co., 456 So. 2d 966 (Fla. 5th DCA 1984).
Florida courts have found that under similar facts, defendants have failed to meet their burden of overcoming the plaintiff’s forum selection by showing substantial inconvenience or undue expense. See Sage v. Traveler’s Indemnity Co. of Hartford, 239 So. 2d 831 (Fla. 4th DCA 1970); Taylor v. Dasilva, 401 So. 2d 1161 (Fla. 3d DCA 1981). Also, in Dalomta-Herrera v. Bush, 645 So. 2d 117 (Fla. 5th DCA 1994), the Fifth District Court of Appeal reversed an order transferring venue that was supported only by argument and assertions by counsel, not by necessary affidavits or sworn testimony. This Court concludes that this record does not reflect any evidence that demonstrates how State Farm would be inconvenienced or burdened by litigating the action in Orange County.
Based on the foregoing, it is hereby
ORDERED AND ADJUDGED that the trial court’s order of April 12, 1999, granting State Farm’s Motion to Transfer Venue is REVERSED, and this case REMANDED.
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