QUEEN WILLIAMS, APPELLANT,
v.
UNION NATIONAL INSURANCE COMPANY, APPELLEE
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Queen Williams appealed the trial court's transfer of her insurance contract suit from Columbia County to Dade County. The Florida District Court of Appeal reversed, holding that venue was proper in Columbia County where the cause of action accrued when the insurance company failed to pay a judgment against its insured.
Venue was proper in Columbia County. The cause of action accrued where Union defaulted by failing to pay the judgment entered against its insured in Columbia County, and Williams' selection of venue in Columbia County, where she resides, is a proper statutory alternative under Florida law.
[1] Venue for actions against domestic corporations is proper in the county where the corporation has an office for transaction of customary business, where the cause of acti…
[2] A plaintiff has the prerogative to select venue, and this selection will not be disturbed if it is one of the statutory alternatives.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The plaintiff has the prerogative of selecting venue; and so long as that selection is one of the statutory alternatives, it will not be disturbed. The party seeking to change venue has the burden of demonstrating that the plaintiff's selection is contrary to the statutory privilege.”
Establishes the standard for venue transfer motions—plaintiff's choice controls if it is statutory, and the moving party bears the burden of proof.
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Join FLexlaw to unlock all legal intelligenceWilliams was injured in Columbia County on May 25, 1986, by Andrew Jackson's negligent operation of an automobile that was insured under a policy issu…
The full statement of facts, procedural history, and disposition for this case are member content.
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SMITH, Chief Judge.
Queen Williams appeals, contending the trial court erred in transferring her suit against Union National Insurance Company (Union) from Columbia County to Dade County. We agree and reverse.
Williams sued Union, alleging that Union issued to Andrew Jackson an automobile liability insurance policy for the policy period of April 8, 1986, to April 8, 1987, and that she was injured by Jackson’s negligent operation of an automobile in Columbia County on May 25, 1986, while the policy was still in full force and effect. Williams further alleged that she recovered a judgment against Jackson in Columbia County for the amount of $75,000.00, and having recovered this judgment against Union’s insured, is entitled to a judgment against Union.1
The applicable venue statute is section 47.051, Florida Statutes (1987), which provides that 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. Since there is no property in litigation, the proper venue for this action is the county where Union keeps an office for transaction of its customary business, or where the cause of action accrued.
Union argues on appeal, as it did below, that venue belongs in Dade County because it is a Florida corporation whose principal and only place of business is Dade County. Further, Union likens this action to a declaratory relief action to determine coverage under the insurance policy, and contends that because the policy in question was executed and cancelled in Dade County, the proper venue is Dade County. Un ion maintains that it will defend, moreover, on the grounds that it cancelled the policy before the accident when Jackson’s check for the premium was returned for insufficient funds.
The plaintiff has the prerogative of selecting venue; and so long as that selection is one of the statutory alternatives, it will not be disturbed. The party seeking to change venue has the burden of demonstrating that the plaintiff’s selection is contrary to the statutory privilege. Perry Building Systems, Inc. v. Hayes & Bates, Inc., 361 So. 2d 443 (Fla. 1st DCA 1978).
We disagree with Union’s characterization of this complaint as one seeking a determination of coverage under the insurance policy. Rather, the gravamen of appellant’s complaint is that, having secured a judgment against Jackson for a loss covered by the policy, she is a third party beneficiary of the insurance contract between Jackson and the insurance company, and that she is entitled to the proceeds from the contract. In essence, she has alleged that Union breached this contract when it failed to pay the judgment recovered against its insured, Jackson, in Columbia County.
For venue purposes in a contract action, the cause of action accrues where the act of default occurs. Perry Building Systems, Inc., 361 So. 2d at 444. In this case, the default occurred when Union failed to pay the judgment entered against its insured in Columbia County. Where there is an express promise to pay a sum of money and no place of payment is stipulated, the debtor must seek the creditor and payment is to be made in the county where the payee resides. Id. at 444-5. Thus, appellant’s selection of venue in Columbia County, where she resides, is proper. Union established only that venue was proper in Dade County but not that venue was improper in Columbia County. The fact that Union intends to raise a coverage defense in this case does not change the nature of the cause of action alleged by appellant. The action should not have been transferred to Dade County.
REVERSED and REMANDED for further proceedings in Columbia County.
JO ANOS and ZEHMER, JJ., concur. . While the customary procedure followed by an injured person after recovery of a judgment against the insured is to pursue execution of that judgment by way of proceedings supplementary to execution or by garnishment, Ferguson v. Goodley, 213 So. 2d 495 (Fla. 4th DCA 1968); General Guaranty Company of Florida v. Da Costa, 190 So. 2d 211 (Fla. 3d DCA 1966), appellant can file a direct suit against the insurance company. Peerless Insurance Co. v. Sheehan, 194 So. 2d 285 (Fla. 2d DCA 1967).
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Barr v. The Fla. Bd. OF Regents, 644 So. 2d 333 (Fla. 1st DCA 1994)…sumptively correct, and the party challenging venue has the burden to demonstrate any impropriety in the plaintiffs choice. Barry Cook Ford, Inc. v. Ford Motor Co., 571 So. 2d 61 (Fla. 1st DCA 1990). Accord Williams v. Union National Insurance Co., 528 So. 2d 454, 456 (Fla. 1st DCA 1988); Premier Cruise Lines, Ltd. v. Gavrilis, 554 So. 2d 659 (Fla. 3d DCA 1990); Schecter v. Fishman, 525 So. 2d 502 (Fla. 5th DCA 1988). In Barry Cook Ford and in Williams, changes of venue granted by the respective trial courts…
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Oliver v. Severance, 542 So. 2d 408 (Fla. 1st DCA 1989)…. (Emphasis added.) Severance correctly states that the above statute gives to him the option of venue selection, and as long as that selection is one of the statutory alternatives, it should not be disturbed. See Williams v. Union Nat’l Ins. Co., 528 So. 2d 454, 456 (Fla. 1st DCA 1988). He contends that venue is proper in Columbia County, because his tort claim alleging, Oliver’s negligence in failing to procure adequate workers’ compensation insurance, accrued in Columbia County, due to his injuries being…
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Barry Cook Ford, Inc. v. Ford Motor Co., 571 So. 2d 61 (Fla. 1st DCA 1990)…burden to demonstrate any impropriety in the plaintiff’s choice. See Piper Aircraft Corp. v. Schwendemann, 564 So. 2d 546 (Fla. 3d DCA 1990); Premier Cruise Lines, Ltd. v. Gavrilis, 554 So. 2d 659 (Fla. 3d DCA 1990); Williams v. Union Nat. Ins. Co., 528 So. 2d 454 (Fla. 1st DCA 1988). The trial court inappropriately transferred venue in this case. Under section 47.051, FMC is a foreign corporation doing business in Florida, which has an “agent or other representative” doing busi [*62] ness in Leon County. S…
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
- W. D. Little, Jr., M.D. v. Smeltzer, 361 So. 2d 443 (Fla. 2d DCA 1978)
- Gen. Guar. Ins. Co. of Fla. v. DaCOSTA, 190 So. 2d 211 (Fla. 3d DCA 1966)
- Peerless Ins. Co. v. Sheehan, 194 So. 2d 285 (Fla. 2d DCA 1967)
- Ferguson v. Goodley, 213 So. 2d 495 (Fla. 4th DCA 1968)