EDITH L. SAGE, APPELLANT,
v.
TRAVELERS INDEMNITY COMPANY OF HARTFORD, A FOREIGN CORPORATION DOING BUSINESS IN THE STATE OF FLORIDA, AND ELERY OLIVER DAVIDSON, APPELLEES

Fla. 4th DCA | 1970-10-09
No. 70-153
CROSS, C. J., and OWEN, J., concur.
239 So. 2d 831 Florida District Court of Appeal, Fourth District (1970) Positive Treatment
Cited by 7 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

This case addresses venue issues arising from Shingleton v. Bussey, which permitted direct actions against insurers. The court held that when a plaintiff sues an insured defendant and the foreign corporation insurer in a county where the insurer has an agent, the plaintiff may maintain the suit there despite the individual defendant's residence elsewhere, absent a proper forum non conveniens motion or the defendant's assertion of venue rights.


Holding

The plaintiff had the right to bring and maintain the action in Orange County under Florida Statute Section 47.051 because the foreign corporation defendant (the insurer) had an agent there. The individual defendant's venue rights under Section 47.011 are not asserted in this case, and without a proper forum non conveniens motion under Section 47.122 or the defendant's claim of venue privilege, the trial court erred in transferring venue.


Headnotes

[1] A foreign corporation authorized to do business in Florida may be sued in any county where it has an agent or other representative, or where the cause of action accrued,…

[2] The Forum Non Convenience Statute allows a court to transfer a civil action to another court of record for the convenience of the parties or witnesses or in the interest…

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Key Quotes

“Actions against foreign corporations doing business in this state shall be brought in a county or district where such corporation has an agent or other representative, or where the cause of action accrued, or where the property in litigation is located.”

This quote from Florida Statute Section 47.051 establishes the statutory basis for venue against foreign corporations, which the court applied to permit the plaintiff to sue in Orange County where the insurer had an agent.

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Facts & Procedural History

A motor vehicle collision occurred in Lake County, Florida between residents of that county. The plaintiff sued both the individual defendant and Trav…

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Opinion of the Court
WALDEN, Judge.

WALDEN, Judge.

Another problem generated by Shingleton v. Bussey1 comes home to roost, this particular one being in the area of venue.

A motor vehicle collision occurred in Lake County, Florida, and a suit for personal injuries based on negligence ensued. The plaintiff and the individual defendant were residents of Lake County, Florida. The insurer, Travelers Indemnity Company of Hartford, was joined as a party defendant according to the principles of Shingleton v. Bussey, supra. The insurer was a foreign corporation authorized to do business in Florida with a representative and agent conducting business in Orange County, Florida. (The record is silent as to whether the insurer had a representative and agent doing business in Lake County or any other county in the state except Orange.) The plaintiff filed the suit in Orange County and the individual defendant did not object. The insurer moved to change the venue from Orange to Lake County. The trial court granted the motion. Plaintiff appeals. We reverse.

F.S.1969, section 47.051, F.S.A., is entitled, “Actions against corporations.” It provides:

“ * * * Actions against foreign corporations doing business in this state shall be brought in a county or district where such corporation has an agent or other representative, or where the cause of action accrued, or where the property in litigation is located.”

Thus, when we consider these provisions in light of the direct action against insurers permitted in Shingleton v. Bussey, supra, coupled with the fact that many, if not most, insurers are foreign corporations with agents doing business throughout Florida, it would seem, at least at first blush, that plaintiffs in such cases would now be entitled to shop for forums almost anywhere within the state without regard to convenience, expense and the justice of the matter.

*833Upon further inquiry, however, we are persuaded that the operation of Shingleton v. Bussey, supra, will not result in such an unpalatable and unpromising circumstance. This is true for two reasons. First, in 1969 the Legislature of Florida enacted a Forum Non Convenience Statute, which is identical to the Federal statute, 28 U.S.C. § 1404(a). It is Section 47.122, Laws of Florida, 1969, and provides:

“Change of venue; convenience of parties or witnesses or in the interest of justice. — 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.”

It permits the transfer of action based upon consideration of convenience, expense, location of witnesses, residence of the parties and other matters. See 1 A.L.R. Fed. 15. Upon review of the cases that have construed the Federal statute, it appears that a court is given a wide latitude in determining venue so as to accord with the convenience of the parties and witnesses and the interest of justice. Thus, we feel that this statute will serve as an effective tool in preventing forum shopping or venue abuse under Shingleton v. Bussey, supra, or otherwise.

In the instant case there is no showing in the motion for change of venue, the court’s order or the briefings of counsel that the transfer was made on account of this statute or based upon any criteria relevant and material to its application. We take note that Lake and Orange Counties adjoin and that apparently the individual defendant and the plaintiff wished the suit brought in Orange and there is no showing as to the residences of the witnesses. Thus, this statute is not helpful to our disposition of this appeal.

Second, with reference to the venue statute, Chapter 47, Laws of Florida, 1969, we know that under Section 47.011 actions shall be brought where the defendant resides or where the cause of action accrues and that under Section 47.021 actions against two or more defendants residing in different counties may be brought in any county in which any defendant resides. We further know that under Section 47.051, supra, that actions against foreign corporations shall be brought in a county where that corporation has an agent or other representative or where the cause of action accrued. From this, as earlier stated, it would seem that a plaintiff could bring the cause of action in any county where the insurer had an agent inasmuch as the insurer is now a proper party under Shingleton v. Bussey, supra. However, according to the case law of this state, it has been held that where an individual defendant is joined as a party defendant with a foreign corporation defendant and the corporate defendant has an agent in the county in which the individual defendant resides these statutory sections cannot be applied to defeat the individual defendant’s venue privileges under Section 47.011. Enfinger v. Baxley, Fla.1957, 96 So.2d 538. See also Croft v. Young, Fla.App.1966, 188 So.2d 859; Commercial Carrier Corporation v. Mercer, Fla.App.1969, 226 So.2d 270. In the instant case, however, the individual defendant has not complained and asserted his venue privileges under Section 47.011, supra. Therefore, we feel the trial court erred in according the privilege to the defendant under these circumstances.

Reflecting upon Shingleton v. Bussey, supra, and the problems of venue, we feel that Shingleton has effected one new change by affording additional forums where such a cause of action may be brought. If plaintiff chooses and the individual defendant does not object, and if the forum non convenience statute is not successfully invoked, the cause of action may be brought in the county where the insurer, a foreign corporation, has an agent under the provisions of Section 47.051, supra, regardless of where the cause of action occurred and where the individual defendant resides.

*834Repeating, and by way of summary, we are satisfied that the two mentioned procedures afford appropriate and adequate safeguards against forum shopping or promiscuous use of the venue statutes which might have been made possible by the addition of the insurer as another defendant under the Shingleton case.

We believe that the plaintiff had a right to bring this action in Orange County because the foreign corporation defendant had an agent in that county, under the provisions of Section 47.051, supra. We believe that he had a right to maintain it there in the absence of a motion to transfer and a proper showing under Section 47.122, supra, and in the absence of the defendant’s claim of venue privilege under Enfinger v. Baxley, supra.

The order appealed is hereby reversed and the cause remanded with instructions to change and transfer the venue from Lake to Orange County.

Reversed and remanded.

CROSS, C. J., and OWEN, J., concur.


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Citator

Cited By

  • …Films, Inc., Fla.App.3rd 1961, 133 So. 2d 431; Amelia Island Mosquito Control Dist. v. Tyson, Fla.App.lst 1963, 150 So. 2d 246; Morris v. Williams, Fla.App.2nd 1967, 199 So. 2d 747; Sage v. Travelers Indemnity Company of Hartford, Fla.App.4th 1970, 239 So. 2d 831; and Department of Revenue v. First Fed. Sav. & L. Ass’n., Fla.App.2nd 1971, 256 So. 2d 524. The parties have also cited two United States Supreme Court cases, Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254; and Van Dusen v. Barrack,…
  • Coleman P. Houchins, Jr. v. Fla. E. Coast Ry. Co., 388 So. 2d 1287 (Fla. 3d DCA 1980)
    …refiling in Dade. If a defendant seeks to be relieved from the plaintiff’s choice of forum, his exclusive remedy lies in demonstrating his entitlement to transfer under Chapter 47, Florida Statutes. Sage v. Travelers Indemnity Company of Hartford, 239 So. 2d 831 (Fla. 4th DCA 1970). If a defendant, as here, fails in that showing, the plaintiff’s choice of forum controls. A court cannot give the defendant greater rights than the legislature has seen fit to grant in this statutory scheme by pejoratively descr…
  • Walt Disney World Co. & Ins. Co. of N. Am. v. Leff, 323 So. 2d 602 (Fla. 4th DCA 1975)
    …73); Maloney v. Fleishaker, 238 So. 2d 496 (2nd DCAFla.1970); King v. King, 188 So. 2d 857 (4th DCAFla.1966), and was recognized by this court, but not applied because the facts did not so warrant, in Sage v. Travelers Indemnity Company of Hartford, 239 So. 2d 831, 833 (4th DCA Fla.1970). Appellees make an unpersuasive attempt to distinguish the above cases on their facts from that at bar. Their argument is infected with a fallacious concept: that venue was properly laid in Broward County as to defendant-Dis…

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