Universal Property & Casualty Insurance Company v. Stephen Long

After termites damaged Steven Long's Brevard County residence, he filed

suit in Hillsborough County against two termite protection companies. In both cases,

venue was transferred to Brevard. Long then sued his homeowner's insurer, Universal

Property and Casualty Insurance Co., after the insurer denied coverage for the alleged

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collapse of the house due to hidden termite and decay damage. This suit, too, was filed

in Hillsborough County. Universal first moved to dismiss the complaint and then

answered it, but it did not raise the defense of improper venue. See Fla. R. Civ. P.

1.140(b). Ten months later, Universal filed a motion to transfer venue to Brevard

County. It challenges the denial of that motion in this nonfinal appeal. See Fla. R. App.

P. 9.130(a)(3)(A). We reverse.

The parties agree that although Universal did not raise the defense of

improper venue, it could still seek to transfer venue under section 47.122, Florida

Statutes (2013). See Fla. Health Scis. Ctr. v. Elsenheimer, 952 So. 2d 575, 577 (Fla.

2d DCA 2007). That statute sets forth three bases for transferring venue: (1) the

convenience of the parties, (2) the convenience of the witnesses, and (3) the interest of

justice. § 47.122.

Although Universal's motion raised the three statutory considerations, the

circuit court did not address them. It focused instead on the fact that the lawsuit had

been set for trial. The court remarked at the hearing:

[T]he case was filed in February. Effectively, 18 months has

expired. If I agree with you that it's complex litigation, it's

met its time standard. Okay? So if I transfer this case it

would be effectively continuing the trial. Your motion to

transfer venue as to Universal and Steven Long, the original

lawsuit, is denied.

A circuit court may not ignore the three pertinent factors when deciding

whether a venue transfer under section 47.122 is proper. For example, the court in

Peterson, Howell & Heather v. O'Neill, 314 So. 2d 808 (Fla. 3d DCA 1975), held that the

circuit court abused its discretion when it denied a section 47.122 motion while failing to

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recognize or address the convenience of the parties or the witnesses. The Third District

remarked that a court "does not have the right to disregard the established principles

and guidelines set forth by law for decision in such matters." Id. at 810. Observing that

the circumstances in that case established that the motion to transfer venue should

have been granted, the O'Neill court reversed the denial of the defendants' motion.

Similarly, in this case the three statutory considerations compel our

conclusion that the suit should be transferred from Hillsborough County to Brevard

County. Vis-a-vis the convenience of the parties, we acknowledge that Long chose to

file in Hillsborough County, and we assume that that county is convenient for him. But a

plaintiff's choice of venue is not a paramount consideration; it is merely a " 'meaningful

one in assessing the convenience of the parties.' " Darby v. Atlanta Cas. Ins. Co., 752

So. 2d 102, 103 (Fla. 2d DCA 2000) (quoting J.L.S. v. R.J.L., 708 So. 2d 293, 295 (Fla.

2d DCA 1998)). Significantly, Long lives in Brevard, and certainly that county would not

be inconvenient for him. Universal's headquarters and sole office are in Broward

County.

The most important consideration when determining whether to grant a

section 47.122 motion is the convenience of the witnesses. Elsenheimer, 952 So. 2d at

578. As mentioned, this lawsuit involves termite damage to Long's Brevard County

house and whether that damage was a covered peril under Universal's homeowner's

policy. Universal denied the claim based on a policy exclusion for damages arising out

of "claims that are related to maintenance, rodent and insect infestation." Long's own

witness list establishes that the termite prevention companies that treated the residence

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and their representatives are located in Brevard County. Other witnesses—from a

construction company, an inspection service, a plastering and stucco business, and an

electrical service—are all located in Brevard County. Universal's list identifies, among

others from Brevard County, a witness from the County Building Department. The only

witnesses from Hillsborough County are two experts, one for Long and one for

Universal, who are expected to testify about the collapse of the residence.

The interests of justice also militate in favor of a venue transfer. Long's

suits against the termite protection companies were transferred to Brevard County. The

Hillsborough circuit court permitted Universal to file third-party claims against both of

those companies, and those claims have been transferred to Brevard County, as well.

Thus, three suits involving termite damage to the residence are pending in Brevard.

The only proceeding remaining in Hillsborough is Long's suit on Universal's policy.

While there will certainly be coverage issues in that suit that differ from the issues in the

others, Universal's denial of coverage is based on an exclusion for damages caused by

insects. Moving the suit against Universal to Brevard County will avoid duplication of

testimony. Many of the witnesses identified by the parties in this lawsuit will no doubt

be witnesses in the Brevard suits, including the named defendants in Long's other suits

and in Universal's third-party action.

The court abused its discretion when refusing to grant Universal's motion

pursuant to section 47.122. We reverse and remand with directions to grant the motion.