How do I know its inconvenient?

FLORIDA LAW WEEKLY

VOLUME 50 NUMBER 40

CASES FROM THE WEEK OF OCTOBER 10, 2025

TRIAL COURT ERRED IN GRANTING INSURER’S MOTION TO TRANSFER VENUE FROM HILLSBOROUGH COUNTY TO POLK COUNTY BASED ON FORUM NON CONVENIENS – INSURER DID NOT OVERCOME INSURED’S VENUE CHOICE AND FAILED TO PROVE THAT POLK COUNTY WAS A MORE CONVENIENT FORUM

Simiek v. Heritage Property & Casualty Ins. Co., 50 Fla. L. Weekly D2146 (Fla. 2nd DCA Oct. 1, 2025):

The plaintiffs insured their home in Lakeland. After Hurricane Ian damaged their home, they filed a claim. When the insurer refused to pay the full amount, the plaintiffs sued in Hillsborough County, where the company’s principal place of business is.

The insurer moved to dismiss or alternatively to transfer venue based on forum non conveniens. It noted that Polk County was the proper venue because the cause of action accrued there and the subject property was located there. It further claimed that Polk County was the convenient forum because all inspections of the subject property occurred there and the depositions of the plaintiffs would likely occur there.

The motion was unverified and not accompanied by any affidavits, sworn testimony, or other evidence. At a hearing on the motion, the insurance company speculated that the plaintiffs would not want to drive to Hillsborough County for in-person depositions, and that they would occur either via Zoom or in Polk County. The plaintiffs countered that they chose to file the lawsuit in Hillsborough County, inherently agreeing to travel there, if and when a trial was to occur.

The trial court granted the motion to transfer. On appeal, the plaintiffs argued that Hillsborough was a proper forum and stressed that the insurer offered no proof of substantial inconvenience or undue expense that it would incur by litigating in its home county. The insurer claimed that the undisputed facts showed that the plaintiffs resided in Polk County, their home was there, the alleged damage occurred there, the inspections would occur there, and the insurance contract was made there.

The court noted that it is the plaintiff’s prerogative to initially select the venue in accordance with the applicable venue statute. To overcome the plaintiff’s venue choice, the insurer had to prove that Polk County was a more convenient forum. A plaintiff’s forum selection is presumptively correct, and the burden is on the defendant to show either substantial inconvenience or that undue expense requires change for the convenience of the parties or the witnesses.

While the lawsuit had obvious ties to Polk County, the plaintiffs decided to proceed in Hillsborough. The insurance company failed to submit any affidavits or other evidence to establish that it or any witnesses would incur substantial inconvenience or undue expense by litigating in Hillsborough; that was the insurance company’s burden to bear, and it failed to displace the plaintiff’s choice of venue.

Accordingly, the appellate court reversed the order transferring venue. NOTE: Venue motions have a much greater chance of being successful when the ties to the county sued in are weak. However, it is always a much tougher argument for a defendant when it is headquartered or doing business in the county the plaintiff sued in.

TRIAL COURT DID NOT ERR IN DENYING MOTION SEEKING ATTORNEYS’ FEES UNDER SECTION 57.105—GRANTING CLIENT’S MOTION TO INTERVENE IN THE UNDERLYING ACTION FOR THE LIMITED PURPOSE OF PURSUING SURPLUS FUNDS SHOWED THAT THE TRIAL COURT IMPLICITLY FOUND SOME POTENTIAL MERIT TO THE CLAIM ABOUT SURPLUS FUNDS

Rickard v. Ferrari Financial Services, 50 Fla. L. Weekly D2153 (Fla. 3rd DCA Oct. 1, 2025):

The appellant appealed an order denying its motion for 57.105 fees as a sanction against opposing counsel. The appellant argued that the sanctions were appropriate because opposing counsel knew or should have known that its client’s claim to surplus proceeds from a foreclosure sale lacked merit.

However, the trial court had granted the client’s motion to intervene in the underlying foreclosure action for the limited purpose of pursuing the surplus funds. By doing so, the trial court implicitly found some potential merit to the claim. It would have thus been incongruous for the trial court to grant the intervention motion and then find that the client had no good faith basis for its claim.

The court affirmed the denial of the section 57.105 fees.