41
Fla. L. Weekly D2413aTop of Form

Insurance
— Uninsured motorist — Venue — Forum selection clause — Trial court erred
in denying defendant insurer’s motion to dismiss claim for uninsured motorist
benefits based on improper venue where endorsement to policy contained
mandatory forum selection clause providing that any lawsuits related to
coverage shall be brought, heard, and decided in county of insured address
shown on policy declarations, which was an address in Pennsylvania — Forum
selection clause contained in endorsement prevailed over general venue
provisions in policy — To the extent an endorsement is inconsistent with the
body of the policy, the endorsement controls

ALLSTATE
FIRE AND CASUALTY INSURANCE COMPANY, Appellant, vs. JOSEPH HRADECKY, ET AL.,
Appellees. 3rd District. Case No. 3D16-999. L.T. Case No. 15-294 M. Opinion
filed October 26, 2016. An Appeal from a non-final order from the Circuit Court
for Monroe County, Timothy J. Koenig, Judge. Counsel: Walton Lantaff Schroeder &
Carson LLP and John P. Joy and Sara M. Sandler (Fort Lauderdale), for
appellant. Keller, Keller & Caracuzzo, P.A. and David M. Lores (West Palm
Beach); Purdy, Jolly, Giuffreda & Barranco, P.A. (Fort Lauderdale) and
Summer M. Barranco (Fort Lauderdale), for appellees.

(Before
SHEPHERD, LAGOA, and FERNANDEZ, JJ.)

(LAGOA,
J.) Allstate Fire and Casualty Insurance Company (“Allstate”) seeks review of
the trial court’s order denying Allstate’s motion to dismiss Count II of
Plaintiff, Joseph Hradecky’s (“Hradecky”), complaint based on improper venue.1 Because the plain and unambiguous
language of the Endorsement contains a mandatory forum selection clause for
bringing any suit for UM benefits in Pennsylvania, we reverse the trial court’s
order and remand.

I. FACTUAL
AND PROCEDURAL HISTORY

Allstate
issued a personal automobile policy to Hradecky (the “Policy”). The policy
period ran from November 15, 2014 until May 15, 2015, and provided for both
Uninsured Motorists (“UM”) and Underinsured Motorists (“UIM”) coverage. On
November 19, 2014, Hradecky received an Amended Policy Endorsement (the
“Endorsement”). Of relevance to this appeal, the address for Hradecky listed on
the Policy Declarations page was 177 McKenzie Road, Clinton, Pennsylvania.

On
December 3, 2014, Hradecky’s motor vehicle was rear-ended by a vehicle driven
by an officer of the Monroe County Sheriff’s Office. At the time of the
accident, Hradecky’s vehicle was covered by the Policy and its Endorsement.

Hradecky
subsequently filed suit alleging two counts: Count I for Negligence against
Rick Ramsay, as Sheriff of Monroe County, Florida; and Count II for Negligence
against Allstate.2

Allstate
filed a Motion to Dismiss Count II of Plaintiff’s Amended Complaint, arguing
that dismissal was required based on the following mandatory forum selection
clause contained in the Endorsement titled “Pennsylvania Auto Amendatory
Endorsement”:

The following endorsement
changes your policy. Please read this document carefully and keep it with your
policy.

. . . .

II. In Part 3, Uninsured
Motorists Insurance and Underinsured Motorists Insurance, the
following changes are made:

. . . .

E. In Uninsured Motorists
Insurance, the If We Cannot Agree provision is replaced by the
following:

If We Cannot Agree

If the insured person and we
do not agree on that person’s right to receive damages or on the amount,
then upon mutual consent, the disagreement will be settled by arbitration.
Unless you and we agree otherwise, arbitration will take place in
the county in which your address shown on the Policy Declarations is
located. If the insured person and we do not agree to arbitrate, then
the disagreement will be resolved in a court of competent jurisdiction. Any and
all lawsuits related in any way to this coverage shall be brought, heard, and
decided in the county in which your address shown on the Policy
Declarations is located.

(emphasis
in original).

In
its Motion, Allstate asserted that Monroe County, Florida was an improper venue
for Hradecky’s UM claim and that, based on Hradecky’s address listed on his
Policy Declarations page, the Endorsement’s forum selection clause required
Hradecky to bring suit in Allegheny County, Pennsylvania.

In
response at the hearing, Hradecky argued that “it would be judicially
uneconomical” to litigate his UM claim in Pennsylvania while continuing to
litigate his negligence claim against the sheriff’s office in Florida. Hradecky
further argued that because the Endorsement conflicted with the venue clause in
the Policy, the provision which provided greater coverage prevailed.

At
the hearing on the Motion to Dismiss, the trial court agreed with Hradecky and
specifically ruled “that in order for the endorsement to change the policy the
way you [Allstate’s counsel] are suggesting, it would have had to have
referenced the general provision, as well. And it did not do that. And so it
leaves the general provision in the policy intact, and it provides language
which conflicts with that.” In its subsequent written order, the trial court
denied the motion “for the reasons stated in the record.”

Allstate
filed its Motion for Reconsideration of Allstate’s Motion to Dismiss Count II
of Plaintiff’s Complaint, which the trial court denied without hearing. This
appeal ensued.

II.
STANDARD OF REVIEW

We
review de novo a trial court’s order denying a motion to dismiss based on the
interpretation of contractual forum selection clause. See Espresso
Disposition Corp. 1 v. Santana Sales & Mktg. Grp., Inc., 105 So. 3d
592, 594 (Fla. 3d DCA 2013); see also State Farm Mut. Auto. Ins. Co.
v. Menendez, 24 So. 3d 809, 810 (Fla. 3d DCA 2010) (“Because the
interpretation of an insurance contract presents a question of law, this
Court’s standard of review is de novo.”), quashed on other grounds, 70
So. 3d 566 (Fla. 2011).

III.
ANALYSIS

A. ENDORSEMENTS
PREVAIL OVER GENERAL INSURANCE POLICY

Under
Florida law, an insurance policy is treated like a contract, and therefore
ordinary contract principles govern the interpretation and construction of such
policy. See Certain Interested Underwriters at Lloyd’s London v.
Pitu, Inc., 95 So. 3d 290 (Fla. 3d DCA 2012). In denying Allstate’s Motion
to Dismiss, the trial court specifically found that the general venue
provisions of the Policy prevailed over the forum selection clause contained in
the Endorsement. We find that the trial court erred in its finding.

The
law in Florida is clear that to the extent an endorsement is inconsistent with
the body of the policy, the endorsement controls. See Family Care
Ctr., P.A. v. Truck Ins. Exch., 875 So. 2d 750, 752 (Fla. 4th DCA 2004)
(“Even if there were an ambiguity between the endorsement and the body of the
policy, the endorsement, which is clear, controls.”); Fireman’s Fund Ins.
Co. v. Levine & Partners, P.A., 848 So. 2d 1186, 1187 (Fla. 3d DCA
2003) (finding that “the terms of an endorsement such as the one sued upon
control over anything purportedly to the contrary in any other insuring
agreement”); Steuart Petroleum Co., Inc. v. Certain Underwriters at Lloyd’s
London, 696 So. 2d 376, 379 (Fla. 1st DCA 1997) (finding that “to the
extent an endorsement is inconsistent with the body of the policy, the
endorsement controls”).

Here,
the Endorsement modifies and amends the insurance contract with respect to
forum selection. Specifically, the Endorsement states that “[a]ny and all
lawsuits related in any way to this coverage shall be brought, heard, and
decided in the county in which your address shown on the Policy
Declarations is located.” (emphasis in original). Moreover, “[e]ven if there
were an ambiguity between the endorsement and the body of the policy, the
endorsement, which is clear, controls.” Family Care Ctr., 875 So. 2d at
752. Accordingly, we find that the trial court erred in finding that the
Policy’s endorsement language did not control.

B. MANDATORY
VS. PERMISSIVE FORUM SELECTION CLAUSES

Our
analysis, however, does not end with the finding that the Endorsement’s language
controls, as we must consider whether the Endorsement’s forum selection clause
is mandatory or permissive. Whether a forum selection clause is mandatory or
permissive depends on language indicating exclusivity. See Sonus-USA,
Inc. v. Thomas W. Lyons, Inc., 966 So. 2d 992, 993 (Fla. 5th DCA 2007). If
the forum selection clause states that any litigation must or shall be
initiated in a specified forum, the clause is mandatory. Absent such language,
the clause is permissive. Id.

The
Endorsement’s forum selection clause states: “Any and all lawsuits related in
any way to this coverage shall be brought, heard, and decided in the county in
which your address shown on the Policy Declarations is located.”
(emphasis in original). Because the clause at issue specifically provides that
litigation “shall be brought, heard, and decided” in a specified forum (in this
case, the county for the address shown on Hradecky’s Policy Declarations page),
we find that the clause is mandatory. See Golden Palm Hosp. Inc. v.
Stearns Bank Nat’l Ass’n, 874 So. 2d 1231, 1237 (Fla. 5th DCA 2004)
(finding that use of the word “shall” in the documents is “indicative of a
mandatory provision rather than one that is permissive”).

Absent
a showing that a mandatory forum selection clause is unreasonable or unjust, a
trial court must enforce the clause. See Manrique v. Fabbri, 493
So. 2d 437, 440 (Fla. 1986); see also Farmers Group, Inc. v. Madio
& Co., Inc., 869 So. 2d 581, 582 (Fla. 4th DCA 2004).

It
is not enough to show that litigation in the forum would result in additional
expense or inconvenience. Instead, a party challenging a mandatory forum
selection clause as unreasonable or unjust must establish that trial of this
case outside of Florida would be so gravely difficult and inconvenient that he
will for all practical purposes be deprived of his day in court. See Manrique,
493 So. 2d at 440 n.4; see also Farmers, 869 So. 2d at 583.

Here,
the trial court made no finding that the Endorsement’s mandatory forum
selection clause was unreasonable or unjust. Nor could it have made such a
finding, as Hradecky neither argued below that the Endorsement’s clause was
unreasonable or unjust, nor presented any evidence to that effect. Instead,
Hradecky argued below that “it would be judicially uneconomical” to have him
litigate his UM claim in Pennsylvania while litigating his negligence claim
against the Sherriff’s office in Florida.

Absent
findings or record evidence establishing unreasonableness or unjustness of the
forum selection clause, we cannot find that the clause at issue is invalid. See
Taurus Stornoway Invs., LLC v. Kerley, 38 So. 3d 840, 843 (Fla. 1st DCA
2010) (finding forum selection clause valid absent any argument or record
evidence establishing an unreasonable or unjust result).

III.
CONCLUSION

Accordingly,
for the reasons stated, we reverse the trial court’s denial of Allstate’s
Motion to Dismiss Count II based on improper venue and we remand for entry of
an order of dismissal.

Reversed
and remanded for proceedings consistent with this opinion.

__________________

1Count
II is the only claim alleged against Allstate.

2Although
Hradecky styled Count II of the Amended Complaint as a negligence claim, a
review of the allegations shows that the claim is one for failure to pay
contractual UM benefits under the Policy, i.e., a claim for breach of contract.
Count II of the Amended Complaint asserts that “Hradecky had in effect [at the
time] an uninsured/underinsured motorist insurance policy with Defendant
[Allstate] which would inure to the benefit of the Plaintiff Joseph Hradecky,
in that, Defendant, Rick Ramsay, as Sheriff of Monroe County, Florida, is
uninsured.”Bottom of Form