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October 26, 2017 by admin

Civil procedure — Venue — Transfer — Multiple foreign corporation defendants — Where plaintiff brought action against two uninsured-motorist insurers in county where neither plaintiff nor uninsured motorist reside and in which car accident did not occur, trial court erred in granting motion to transfer venue based on Rule of Civil Procedure 1.060 filed by one of the defendants where the non-moving insurer had an office in the county of the trial and answered the complaint

42
Fla. L. Weekly D2283a
Civil
procedure — Venue — Transfer — Multiple foreign corporation defendants —
Where plaintiff brought action against two uninsured-motorist insurers in
county where neither plaintiff nor uninsured motorist reside and in which car
accident did not occur, trial court erred in granting motion to transfer venue
based on Rule of Civil Procedure 1.060 filed by one of the defendants where the
non-moving insurer had an office in the county of the trial and answered the
complaint — Trial court’s order denying separate motion to transfer for forum
non conveniens
as moot, given the order granting the transfer motion on
civil procedure grounds, is reversed because the motion is no longer moot


KURT GARDNER, Appellant, v. THE
STANDARD FIRE INSURANCE COMPANY and ALLSTATE FIRE AND CASUALTY INSURANCE
COMPANY, Appellees. 4th District. Case No. 4D17-1546. October 25, 2017. Appeal
of non-final order from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Jeffrey Dana Gillen, Judge; L.T. Case No. 502017CA001511XXXMB.
Counsel: Shelly J. Stirrat of Appellate Services, PLLC, West Palm Beach, and
Jack M. Sobel of Schwed, Adams, Sobel & McGinley, PA, Palm Beach Gardens,
for appellant. Gabriel C. Dobrin of Law Offices of James W. Kehoe, III, Fort
Lauderdale, for appellee The Standard Fire Insurance Company.
(KUNTZ, J.) The Plaintiff appeals an
order transferring venue to Manatee County. In this lawsuit against two
uninsured motorist insurers, one of the defendants filed a motion to transfer
venue pursuant to Florida Rule of Civil Procedure 1.060, and, later, a motion
to transfer for forum non conveniens. The court granted the motion to
transfer venue based upon Rule 1.060, and based upon that ruling denied the forum
non conveniens
motion as moot. Because the other defendant has an office in
Palm Beach County, venue was proper in the county. Therefore, we reverse the
court’s order transferring venue.
Background

The Plaintiff, a resident of Broward
County
, and an at-fault and uninsured driver, who is a resident of Hillsborough
County
, were involved in a car accident on Interstate 75 in Manatee
County
. The Plaintiff filed uninsured motorist claims with his insurance
companies, which are both foreign corporations. When both companies
denied the claims, the Plaintiff filed a lawsuit in Palm Beach County.
The two insurers took different
approaches in response to the lawsuit. Defendant Allstate answered the
complaint, while defendant Standard Fire moved to transfer venue based on
Florida Rule of Civil Procedure 1.060. Standard Fire later filed a separate
motion to transfer for forum non conveniens.
After both sides briefed Standard
Fire’s motions, the court held a hearing and issued a written order granting
the motion to transfer, relying on Geico General Insurance Co. v. Graci,
849 So. 2d 1196, 1199 (Fla. 4th DCA 2003). The court then denied the motion to
transfer for forum non conveniens as moot; however, it noted in the
written order that the Plaintiff’s arguments for transferring on this ground
were not persuasive.
The Plaintiff now appeals the
court’s order, arguing Palm Beach County is a proper venue for this lawsuit.
Analysis
At first glance, it is easy to
understand why the court transferred this action. A lawsuit was filed against
two foreign insurers arising from an automobile accident that occurred in
Manatee County between residents of Hillsborough County and Broward County.
With the exception of the location of the Plaintiff’s attorney, there is no
clear connection to Palm Beach County.
However, the analysis is not so
simple. In Florida, chapter 47, Florida Statutes (2016), governs the
determination of proper venue, which is generally found in section 47.011.
However, when the defendant is a corporation, section 47.051 controls:
Actions against domestic corporations shall be brought only
in the county where such corporation has, or usually keeps, an office for
transaction of its customary business, where the cause of action accrued, or
where the property in litigation is located. Actions against foreign corporations
doing business in this state shall be brought in a county where such
corporation has an agent or other representative, where the cause of action
accrued, or where the property in litigation is located.
Additionally, in cases involving
multiple defendants, section 47.021 provides that “[a]ctions against two or
more defendants residing in different counties may be brought in any county in
which any defendant resides.”
We now apply those controlling
statutory provisions to the case before us. The circuit court relied upon Graci
to support its conclusion that venue was proper only in Manatee County. In Graci,
the plaintiff filed suit in St. Lucie County against her uninsured motorist
insurer for claims arising out of an automobile accident that occurred in Martin
County. 849 So. 2d at 1197-98. The insurer moved to transfer venue to Martin
County, and filed an affidavit stating that it did not maintain an office or
agent in St. Lucie County. Id. at 1198. The circuit court denied the
motion to transfer venue and, on appeal, we reversed. Id. As correctly
noted by the circuit court in our case, in Graci we explained that the
plaintiff’s cause of action was for a determination of an entitlement to
damages caused by an automobile collision — not a breach of the insurance
contract. Id. at 1199.
However, in Graci we also
noted that “[o]f the several venue selections authorized by either section
47.011 or section 47.051, Fla. Stat., the only one which would be applicable is
the county where the cause of action accrued.” Id. at 1198. There was
only one defendant in Graci and the one defendant did not have an agent
in the forum county.
But the circumstances here are
different. There are two defendants in this case, Allstate and Standard Fire.
One defendant, Standard Fire, filed an affidavit stating it does not have an
agent or office in Palm Beach County. However, the other defendant, Allstate,
filed an answer to the Plaintiff’s complaint within which it specifically
admitted that it has an agent in Palm Beach County.
Here, unlike in Graci, there
are other provisions to the venue statute applicable beyond where the cause of
action accrued. Specifically, with regard to foreign corporations, the statute
provides that venue is proper “where such corporation has an agent or other
representative, where the cause of action accrued, or where the property in
litigation is located.” § 47.051, Fla. Stat. (2003); see also Fla. Gamco,
Inc. v. Fontaine
, 68 So. 3d 923, 928 (Fla. 4th DCA 2011). And, as noted
above, section 47.021, Florida Statutes (2016), provides that in cases with
multiple defendants the cause of action may be brought in any venue where any
defendant resides.
Therefore, pursuant to sections
47.021 and 47.051, Florida Statutes, venue is proper in any county where either
defendant has an agent or other representative. Allstate answered the complaint
and admitted it has an agent in Palm Beach County. As such, venue was proper in
Palm Beach County and the court erred in granting the motion to transfer venue.
Finally, because the circuit court
did not decide Standard Fire’s separate motion to transfer venue for forum
non conveniens
on the merits, neither do we. However, based upon our
reversal of the order transferring venue, we vacate the order on forum non
conveniens
, as it is no longer moot.
Conclusion

One of the defendants admitted that
it has an agent in Palm Beach County. Therefore, venue was proper in Palm Beach
County and the court’s order granting Standard Fire’s motion to transfer venue
is reversed.
Reversed and remanded for further
proceedings.
(GROSS and LEVINE, JJ., concur.)

* * *

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