41
Fla. L. Weekly D2539aop of Form
Fla. L. Weekly D2539aop of Form
Insurance
— Venue — Actions against insurance company for bad faith failure to settle
and against company’s attorney for legal malpractice — Order denying motion to
sever or bifurcate counts is not an appealable non-final order — Venue was
proper in county where one of defendants resided — Trial court did not abuse
discretion in denying motion to transfer venue for forum non conveniens
— Venue — Actions against insurance company for bad faith failure to settle
and against company’s attorney for legal malpractice — Order denying motion to
sever or bifurcate counts is not an appealable non-final order — Venue was
proper in county where one of defendants resided — Trial court did not abuse
discretion in denying motion to transfer venue for forum non conveniens
HARTFORD
FIRE INSURANCE COMPANY, a Corporation, Appellant, v. LORAN LEROY SMITH; WILSON,
ELSER, MOSKOWITZ, EDELMAN & DICKER, LLP; and MICHAEL D. LOGAN, ESQUIRE,
Appellees. 4th District. Case No. 4D16-498. November 9, 2016. Appeal of a
non-final order from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Cheryl Caracuzzo, Judge; L.T. Case No. 502015CA003461XXXXMB.
Counsel: Scott A. Cole of Cole, Scott & Kissane, P.A., Miami, and Suzanne
M. Lehner of Hamilton Miller & Birthisel, LLP, Tampa, for appellant. Bard
D. Rockenbach and Adam J. Richardson of Burlington & Rockenbach, P.A., West
Palm Beach, and Fred A. Cunningham of Domnick, Cunningham & Whalen, P.L.,
Palm Beach Gardens, for appellee Loran Leroy Smith.
FIRE INSURANCE COMPANY, a Corporation, Appellant, v. LORAN LEROY SMITH; WILSON,
ELSER, MOSKOWITZ, EDELMAN & DICKER, LLP; and MICHAEL D. LOGAN, ESQUIRE,
Appellees. 4th District. Case No. 4D16-498. November 9, 2016. Appeal of a
non-final order from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Cheryl Caracuzzo, Judge; L.T. Case No. 502015CA003461XXXXMB.
Counsel: Scott A. Cole of Cole, Scott & Kissane, P.A., Miami, and Suzanne
M. Lehner of Hamilton Miller & Birthisel, LLP, Tampa, for appellant. Bard
D. Rockenbach and Adam J. Richardson of Burlington & Rockenbach, P.A., West
Palm Beach, and Fred A. Cunningham of Domnick, Cunningham & Whalen, P.L.,
Palm Beach Gardens, for appellee Loran Leroy Smith.
(PER
CURIAM.) Hartford Fire Insurance Company (Hartford) appeals a trial court order
denying its motion to bifurcate or sever two counts of a complaint against it,
motion to dismiss for improper joinder and/or venue, and, alternatively, motion
to transfer venue for forum non conveniens. We dismiss the appeal as to that
portion of the order denying the motion to bifurcate or sever for lack of
jurisdiction, and otherwise affirm.
CURIAM.) Hartford Fire Insurance Company (Hartford) appeals a trial court order
denying its motion to bifurcate or sever two counts of a complaint against it,
motion to dismiss for improper joinder and/or venue, and, alternatively, motion
to transfer venue for forum non conveniens. We dismiss the appeal as to that
portion of the order denying the motion to bifurcate or sever for lack of
jurisdiction, and otherwise affirm.
The
case arose from a multi-vehicle accident in 2012 involving a semi-truck owned
by O & L Transport and driven by Loran Leroy Smith. Smith was transporting
cargo for Peninsula Logistics, Inc. (Peninsula). Peninsula was insured by
Hartford with single limit liability coverage of one million dollars for any
one accident or loss. The accident resulted in the death of Frederick Wood and
severe injuries to Kevin Erb.
case arose from a multi-vehicle accident in 2012 involving a semi-truck owned
by O & L Transport and driven by Loran Leroy Smith. Smith was transporting
cargo for Peninsula Logistics, Inc. (Peninsula). Peninsula was insured by
Hartford with single limit liability coverage of one million dollars for any
one accident or loss. The accident resulted in the death of Frederick Wood and
severe injuries to Kevin Erb.
The
Erbs sued Peninsula, driver Smith, and others in Osceola County Circuit Court.
The personal representative of the Estate of Frederick Wood (estate) later sued
Erb, Peninsula, Smith, and others in Polk County Circuit Court.
Erbs sued Peninsula, driver Smith, and others in Osceola County Circuit Court.
The personal representative of the Estate of Frederick Wood (estate) later sued
Erb, Peninsula, Smith, and others in Polk County Circuit Court.
Hartford
retained Wilson Elser Moskowitz Edelman & Dicker LLP (law firm) to
represent its insureds, Peninsula and driver Smith. Attorney Logan, who worked
at the law firm’s Palm Beach County offices, represented Hartford. At
mediation, Hartford settled with the estate and agreed to pay it the policy
limit of one million dollars, to the exclusion of other claimants. Hartford,
however, continued funding the defense of its insureds Peninsula and Smith.
retained Wilson Elser Moskowitz Edelman & Dicker LLP (law firm) to
represent its insureds, Peninsula and driver Smith. Attorney Logan, who worked
at the law firm’s Palm Beach County offices, represented Hartford. At
mediation, Hartford settled with the estate and agreed to pay it the policy
limit of one million dollars, to the exclusion of other claimants. Hartford,
however, continued funding the defense of its insureds Peninsula and Smith.
The
Erb lawsuit resulted in adverse judgments which Peninsula and Smith appealed.
The Fifth District Court of Appeal affirmed as to the judgment against Smith
but reversed and remanded for entry of a judgment in favor of Peninsula. Peninsula
Logistics, Inc. v. Erb, 159 So. 3d 301 (Fla. 5th DCA 2015). Id. at
302. It noted that Smith was an independent contractor when the accident
occurred. Because Peninsula was not the owner or driver of the truck driven by
Smith, was not Smith’s employer, and had no legal right to operate the truck or
assign any such right to Smith, it could not be held vicariously liable for
Smith’s negligence as driver under section 316.302(1)(b), Florida Statutes
(2011). Id.
Erb lawsuit resulted in adverse judgments which Peninsula and Smith appealed.
The Fifth District Court of Appeal affirmed as to the judgment against Smith
but reversed and remanded for entry of a judgment in favor of Peninsula. Peninsula
Logistics, Inc. v. Erb, 159 So. 3d 301 (Fla. 5th DCA 2015). Id. at
302. It noted that Smith was an independent contractor when the accident
occurred. Because Peninsula was not the owner or driver of the truck driven by
Smith, was not Smith’s employer, and had no legal right to operate the truck or
assign any such right to Smith, it could not be held vicariously liable for
Smith’s negligence as driver under section 316.302(1)(b), Florida Statutes
(2011). Id.
Hartford
had earlier filed a declaratory judgment action in federal court, seeking a
ruling that it had no duty to defend or indemnify Peninsula and Smith in
connection with the Erb case. That court entered declaratory judgment in favor
of Hartford but excluded any claim against the insurer for bad faith in
settling the estate’s claim for the policy limits and excluding others.
had earlier filed a declaratory judgment action in federal court, seeking a
ruling that it had no duty to defend or indemnify Peninsula and Smith in
connection with the Erb case. That court entered declaratory judgment in favor
of Hartford but excluded any claim against the insurer for bad faith in
settling the estate’s claim for the policy limits and excluding others.
Smith
sued Hartford in Palm Beach County Circuit Court for bad faith, and included as
defendants Attorney Logan and the law firm. In count one he claimed that
Hartford had acted in bad faith in failing to settle the claims of the estate
and Erbs within its policy limit. In count two, he claimed Attorney Logan and
the law firm committed legal malpractice by failing to advise Hartford that
they needed time to initiate settlement negotiations with both claimants.
sued Hartford in Palm Beach County Circuit Court for bad faith, and included as
defendants Attorney Logan and the law firm. In count one he claimed that
Hartford had acted in bad faith in failing to settle the claims of the estate
and Erbs within its policy limit. In count two, he claimed Attorney Logan and
the law firm committed legal malpractice by failing to advise Hartford that
they needed time to initiate settlement negotiations with both claimants.
Hartford
moved to bifurcate or sever the two counts and, in the alternative, to dismiss
the complaint for improper joinder of parties. It also moved to transfer venue
for forum non conveniens, or dismiss the complaint for improper venue. Hartford
claimed venue did not lie in Palm Beach County and that the action should be
brought in Osceola County, where the Erb lawsuit was filed, or in Polk County,
where Smith resided. Alternatively, Hartford argued Palm Beach County was an
inconvenient forum given the location of potential witnesses. The trial court
held a hearing on the motion and denied relief on all grounds asserted. As
noted above, the trial court denied all of these motions.
moved to bifurcate or sever the two counts and, in the alternative, to dismiss
the complaint for improper joinder of parties. It also moved to transfer venue
for forum non conveniens, or dismiss the complaint for improper venue. Hartford
claimed venue did not lie in Palm Beach County and that the action should be
brought in Osceola County, where the Erb lawsuit was filed, or in Polk County,
where Smith resided. Alternatively, Hartford argued Palm Beach County was an
inconvenient forum given the location of potential witnesses. The trial court
held a hearing on the motion and denied relief on all grounds asserted. As
noted above, the trial court denied all of these motions.
We
dismiss the appeal of that portion of the order which denied Hartford’s motion
to sever or bifurcate as it is not an appealable non-final order recognized in
Florida Rule of Appellate Procedure 9.130. This motion was not based on venue
or any other ground for which a party may appeal. While other portions of the
order did concern venue and were appealable, jurisdiction does not extend to
this portion of the order on bifurcation and severance. See Sch. Bd. of
Broward Cty. v. City of Coral Springs, 187 So. 3d 287, 288 n.1 (Fla. 4th
DCA 2016).
dismiss the appeal of that portion of the order which denied Hartford’s motion
to sever or bifurcate as it is not an appealable non-final order recognized in
Florida Rule of Appellate Procedure 9.130. This motion was not based on venue
or any other ground for which a party may appeal. While other portions of the
order did concern venue and were appealable, jurisdiction does not extend to
this portion of the order on bifurcation and severance. See Sch. Bd. of
Broward Cty. v. City of Coral Springs, 187 So. 3d 287, 288 n.1 (Fla. 4th
DCA 2016).
Certiorari
does not lie because Hartford has not demonstrated irreparable harm caused by
the denial of severance or bifurcation. See Smithers v. Smithers, 743
So. 2d 605, 606 (Fla. 4th DCA 1999) (dismissing petition for certiorari review
of order denying husband’s motion to bifurcate issue of count to annul marriage
and try that count first because husband failed to demonstrate irreparable
harm).
does not lie because Hartford has not demonstrated irreparable harm caused by
the denial of severance or bifurcation. See Smithers v. Smithers, 743
So. 2d 605, 606 (Fla. 4th DCA 1999) (dismissing petition for certiorari review
of order denying husband’s motion to bifurcate issue of count to annul marriage
and try that count first because husband failed to demonstrate irreparable
harm).
We
affirm on the remaining venue issues, which are appealable. See Fla. R.
App. P. 9.130(a)(3)(A). A plaintiff’s venue selection is presumed to be correct
and will not be disturbed on appeal “as long as that selection is one of the
statutory alternatives . . . .” Intercapital Funding Corp. v. Gisclair,
683 So. 2d 530, 532 (Fla. 4th DCA 1996) (quoting Oliver v. Severance,
542 So. 2d 408, 409 (Fla. 1st DCA 1989)).
affirm on the remaining venue issues, which are appealable. See Fla. R.
App. P. 9.130(a)(3)(A). A plaintiff’s venue selection is presumed to be correct
and will not be disturbed on appeal “as long as that selection is one of the
statutory alternatives . . . .” Intercapital Funding Corp. v. Gisclair,
683 So. 2d 530, 532 (Fla. 4th DCA 1996) (quoting Oliver v. Severance,
542 So. 2d 408, 409 (Fla. 1st DCA 1989)).
When
a party seeks to transfer or dismiss for improper venue under section 47.011,
Florida Statutes (2015), the trial court’s legal conclusions on venue are
reviewed de novo. McDaniel Reserve Realty Holdings, LLC v. B.S.E.
Consultants, Inc., 39 So. 3d 504, 508 (Fla. 4th DCA 2010). By contrast, a
trial court’s ruling on a motion to transfer venue for convenience of the
parties is reviewed for abuse of discretion. Id.
a party seeks to transfer or dismiss for improper venue under section 47.011,
Florida Statutes (2015), the trial court’s legal conclusions on venue are
reviewed de novo. McDaniel Reserve Realty Holdings, LLC v. B.S.E.
Consultants, Inc., 39 So. 3d 504, 508 (Fla. 4th DCA 2010). By contrast, a
trial court’s ruling on a motion to transfer venue for convenience of the
parties is reviewed for abuse of discretion. Id.
Several
venue statutes must be considered here. Section 47.011, Florida Statutes (2015)
provides that a civil action “shall be brought only in the county where the
defendant resides, where the cause of action accrued, or where the property in
litigation is located.” Where multiple defendants reside in different counties,
an action may be brought “in any county in which any defendant resides.” §
47.021, Fla. Stat. (2015). Section 47.041, Florida Statutes (2015) provides
that “[a]ctions on several causes of action may be brought in any county where
any of the causes of action arose. When two or more causes of action joined
arose in different counties, venue may be laid in any of such counties, but the
court may order separate trials if expedient.” Finally, section 47.051, Florida
Statutes (2015) provides that actions against foreign corporations doing
business in Florida 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.”
venue statutes must be considered here. Section 47.011, Florida Statutes (2015)
provides that a civil action “shall be brought only in the county where the
defendant resides, where the cause of action accrued, or where the property in
litigation is located.” Where multiple defendants reside in different counties,
an action may be brought “in any county in which any defendant resides.” §
47.021, Fla. Stat. (2015). Section 47.041, Florida Statutes (2015) provides
that “[a]ctions on several causes of action may be brought in any county where
any of the causes of action arose. When two or more causes of action joined
arose in different counties, venue may be laid in any of such counties, but the
court may order separate trials if expedient.” Finally, section 47.051, Florida
Statutes (2015) provides that actions against foreign corporations doing
business in Florida 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.”
Smith’s
amended complaint alleged that Hartford was a foreign corporation registered to
do business in Florida, and that the defendant law firm it hired represented
clients in Florida and had an office in Palm Beach County. He further alleged
that defendant Attorney Logan was an employee of that law firm, and that he was
admitted to practice and was practicing law in Palm Beach County. Hartford
expressly recognized in its motion to transfer venue that defendant Attorney
Logan resided in Palm Beach County. It did not contest or question Logan’s place
of residence in the trial court.
amended complaint alleged that Hartford was a foreign corporation registered to
do business in Florida, and that the defendant law firm it hired represented
clients in Florida and had an office in Palm Beach County. He further alleged
that defendant Attorney Logan was an employee of that law firm, and that he was
admitted to practice and was practicing law in Palm Beach County. Hartford
expressly recognized in its motion to transfer venue that defendant Attorney
Logan resided in Palm Beach County. It did not contest or question Logan’s place
of residence in the trial court.
Attorney
Logan is a defendant and witness in this case on both counts. His residence
alone would support venue in Palm Beach County. If venue lies in Palm Beach
County for any of the counts asserted, it will lie for the others, as provided
by section 47.041, Florida Statutes (2015). To the extent Hartford argues on
appeal that Attorney Logan does not reside in Palm Beach County, it failed to
preserve this claim by raising it below.
Logan is a defendant and witness in this case on both counts. His residence
alone would support venue in Palm Beach County. If venue lies in Palm Beach
County for any of the counts asserted, it will lie for the others, as provided
by section 47.041, Florida Statutes (2015). To the extent Hartford argues on
appeal that Attorney Logan does not reside in Palm Beach County, it failed to
preserve this claim by raising it below.
We
further conclude that the trial court did not abuse its discretion in denying
the motion to transfer for convenience. Section 47.122, Florida Statutes
(2015), provides as follows and frames the trial court’s analysis of that
motion:
further conclude that the trial court did not abuse its discretion in denying
the motion to transfer for convenience. Section 47.122, Florida Statutes
(2015), provides as follows and frames the trial court’s analysis of that
motion:
For the convenience of the
parties or witnesses or in the interest of justice, any court of record may
transfer any civil action to any other court of record in which it might have
been brought.
parties or witnesses or in the interest of justice, any court of record may
transfer any civil action to any other court of record in which it might have
been brought.
Hartford
noted that several witnesses for Smith are located in counties outside of Palm
Beach. However, it did not demonstrate that Smith actually intended to call
them at trial. Further, Hartford failed to indicate the significance of their
testimony or show how any of them would be inconvenienced by having to travel
to Palm Beach County to testify. Absent such a showing, a trial court’s denial
of a motion to transfer for convenience will be affirmed. R.C. Storage One,
Inc. v. Strand Realty, Inc., 714 So. 2d 634, 636 (Fla. 4th DCA 1998).
noted that several witnesses for Smith are located in counties outside of Palm
Beach. However, it did not demonstrate that Smith actually intended to call
them at trial. Further, Hartford failed to indicate the significance of their
testimony or show how any of them would be inconvenienced by having to travel
to Palm Beach County to testify. Absent such a showing, a trial court’s denial
of a motion to transfer for convenience will be affirmed. R.C. Storage One,
Inc. v. Strand Realty, Inc., 714 So. 2d 634, 636 (Fla. 4th DCA 1998).
Affirmed
in part and dismissed in part. (CIKLIN, C.J., CONNER and FORST,
JJ., concur.)
in part and dismissed in part. (CIKLIN, C.J., CONNER and FORST,
JJ., concur.)