THOMAS G. GRICE AND LILIA GRICE, PERSONAL REPRESENTATIVES OF THE ESTATE OF DEBBIE DIANE GRICE, APPELLANTS,
v.
BOARD OF COUNTY COMMISSIONERS OF MADISON COUNTY, FLORIDA, AND TALLAHASSEE MEMORIAL REGIONAL MEDICAL CENTER, INC., APPELLEES
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The court held that an exception to the home venue privilege is created when a plaintiff states an unseverable cause of action against joint tortfeasors who are governmental entities in separate counties.
[1] A governmental entity may exercise its home county venue privilege when it is made a co-defendant in a suit predicated upon alleged unseverable joint tortious activity in…
[2] A plaintiff may be entitled to sue a public official or board in a county other than that of its official residence under exceptional circumstances, such as when an unlaw…
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Join FLexlaw to unlock all legal intelligenceAppellants sued two counties for negligence in transporting their daughter, alleging defective ambulances caused a three-hour delay and contributed to…
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SHAW, Judge.
Appellants sued the Board of County Commissioners of Madison County, Florida, and Tallahassee Memorial Hospital for negligence in transporting their daughter, by ambulance, from Tallahassee, Florida, to Gainesville, Florida, for emergency care. The ambulance owned and operated by Tallahassee Memorial Hospital broke down in Madison County, necessitating transfer to an ambulance owned by Madison County. The second ambulance also failed, and the child was transferred to a third ambulance. Appellants filed suit in the Circuit Court of the Second Judicial Circuit in and for Leon County, Florida, alleging that the defective vehicles delayed the trip by three hours, during which time the child took a turn for the worse and eventually died. When appellants sued in Leon County, Madison County asserted its home venue privilege, which allows the state or one of its agencies or subdivisions, absent waiver or exception, to be sued in the county where the state, agency, or subdivision maintains its principal headquarters. The trial judge recognized the privilege and dismissed the portion of the suit against Madison County without prejudice to refiling in that county. Appellants argue that the cause is not severable and therefore should constitute an exception to the home venue privilege. Ap-pellees answer that the only exception is the “sword-wielder” doctrine which does not apply here.
In cases where a cause is severable and a county asserts its home venue privilege, the courts have either transferred or dismissed without prejudice that portion of the action to which the privilege attaches. See County of Volusia v. Atlantic International Investment Corp., 394 So. 2d 477 (Fla. 1st DCA 1981), and Southern Gulf Utilities v. Mayo, 239 So. 2d 146 (Fla. 1st DCA 1969). Appellants claim that this case is not severable, because mechanical defects in both ambulances combined to delay arrival in Gaines-ville by three hours. During that time, the child suffered convulsions and other complications which required care unavailable in an ambulance. It is appellants’ theory that the total delay contributed to the death, and it is impossible to separate the effect of the first delay from that of the second. When alleged joint liability arises from a continuous sequence of events in separate counties, it would be highly impractical for the plaintiff and the court if separate law suits were maintained in each county.
The issue presented is whether a governmental entity may exercise its home county venue privilege when it is made a co-defendant in a suit predicated upon alleged unseverable joint tortious activity involving governmental entities from different counties, each enjoying the home venue privilege. We find no Florida case precedent on point. Our sister court, in addressing an analogous but distinguishable situation, held that eliminating the home venue privilege when co-defendants are separate counties is within the province of the legislature, not the courts. Lake County v. Friedel, 387 So. 2d 514 (Fla. 5th DCA 1980). We have no quarrel with this reasoning, but in this instance the elimination of the home venue privilege is not at issue. The Florida Supreme Court in Carlile v. Game & Fresh Water Fish Commission, 354 So. 2d 362 (Fla.1978), cites with approval 34 Florida Jurisprudence Venue Section 27 which reads as follows:
It is the policy of this state to require that its officials and boards be sued in the county of their official residence, unless this privilege is waived. . . . Under exceptional circumstances, a complainant may be entitled to sue a public official or board in a county other than that of his or its official residence. One recognized exception to the rule exists where an unlawful invasion of a lawful right secured to the plaintiff by the constitution or laws of the jurisdiction is directly threatened in the county where the suit is instituted. Parties seeking relief from alleged threats to their personal and property rights by the operation of constitutional acts of an agency of the state may bring suit in the county where the alleged wrongs are threatened or are alleged to have been committed. But in the absence of waiver on the part of a state agency of its right, and in the absence of action bringing it within the exceptions to the rule, an action brought against a state agency in a county other than that of its official residence is subject to dismissal.
The Carlile. opinion thus recognizes that there may exist exceptional circumstances under which the local venue privilege must yield. In the opinion of this court, the instant case is such an exception. The appellants allege injury flowing from the un-severable joint tortious actions of two governmental entities, each enjoying local venue privilege. The cause of action is not properly severable under the usual rules, and strict adherence to the venue privilege would result in forcing the plaintiffs (appellants) to file identical suits in separate counties involving the same facts and issues. Such blind adherence to the privilege is counterproductive and contrary to the legislative purpose of promoting orderly and uniform handling of state litigation and minimizing expenditure of public funds and manpower. We therefore REVERSE the dismissal of the appellants’ case against Madison County with directions to reinstate the cause in Leon County.
Due to the possible implications of this decision, and because we feel this appeal involves an issue of great public importance that will affect the administration of justice throughout the state, we certify the following question to the Florida Supreme Court:
IS AN EXCEPTION TO THE HOME VENUE PRIVILEGE CREATED WHEN A PLAINTIFF STATES AN UNSEVERABLE CAUSE OF ACTION AGAINST JOINT TORTFEASORS WHICH ARE GOVERNMENTAL ENTITIES IN SEPARATE COUNTIES? REVERSED AND REMANDED.
McCORD and ERVIN, JJ., concur.
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Bd. of Cnty. Comm'rs of Madison Cnty. v. Grice, 438 So. 2d 392 (Fla. 1983)…BOYD, Justice. This cause is before the Court on petition for review of the district court of appeal decision in Grice v. Board of County Commissioners of Madison County, 413 So. 2d 88 (Fla. 1st DCA 1982), which that court certified as having passed upon a question of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. Respondents brought this wrongful death action on behalf of their deceased minor daugh…
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Schultz v. Brevard Cnty., 431 So. 2d 187 (Fla. 5th DCA 1983)…in civil actions wherein they could elect to be sued only in the counties in which they maintained their principal headquarters. Smith v. Williams, 160 Fla. 580, 35 So. 2d 844 (Fla.1948). In Grice v. Board of County Commissioners of Madison County, 413 So. 2d 88 (Fla. 1st DCA 1982), the court suggested there are exceptional circumstances in which blind adherence to the local venue privilege would defeat the legislative purposes of promoting orderly and uniform handling of state litigation and minimizing the…
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Dep't OF Transp. v. Robinson, 424 So. 2d 883 (Fla. 1st DCA 1982)…978); City of Boca Raton v. Walker, 354 So. 2d 440 (Fla. 3d DCA 1978). DOT has not waived its privilege and the circumstances are not so extraordinary as to provide an exception to the privilege. Cf. Grice v. Bd. of County Com’rs of Madison County, 413 So. 2d 88 (Fla. 1st DCA 1982), certified question docketed, no. 62,174 (Fla. June 10, 1982). Accordingly, the cause of action, as it affects only the Department of Transportation, should be transferred to Leon County, where DOT maintains its principal headqua…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Carlile v. Game & Fresh Water Fish Comm'n of the State of Fla., 354 So. 2d 362 (Fla. 1977)
- Cnty. OF Volusia v. Atl. Int'l Inv. Corp., 394 So. 2d 477 (Fla. 1st DCA 1981)
- Lake Cnty. v. Friedel, 387 So. 2d 514 (Fla. 5th DCA 1980)
- S. Gulf Utils. v. Mayo, 239 So. 2d 146 (Fla. 1st DCA 1969)