Opinion
No. 3D19-2332
08-12-2020
CERTAIN UNDERWRITING MEMBERS OF LLOYD'S, Syndicates 623 and 2623, Appellant, v. PRIME HOLDINGS INSURANCE SERVICES, INC., etc., Appellee.
Deehl PLLC, and David L. Deehl ; and Kula and Associates, P.A., and Elliot B. Kula, and W. Aaron Daniel, for appellant. Russo Appellate Firm, P.A., and Elizabeth K. Russo ; and Krinzman Huss Lubetsky Feldman and Hotte, and Cary Lubetsky ; and Dorta Law, and Gonzalo R. Dorta, for appellee.
Deehl PLLC, and David L. Deehl ; and Kula and Associates, P.A., and Elliot B. Kula, and W. Aaron Daniel, for appellant.
Russo Appellate Firm, P.A., and Elizabeth K. Russo ; and Krinzman Huss Lubetsky Feldman and Hotte, and Cary Lubetsky ; and Dorta Law, and Gonzalo R. Dorta, for appellee.
Before EMAS, C.J., and LOGUE, and MILLER, JJ.
MILLER, J.
Appellant, Certain Underwriting Members of Lloyd's, Syndicates 623 and 2623 (collectively "Certain Underwriters"), challenges a final order granting a motion to dismiss under the doctrine of forum non conveniens at the urging of appellee, Prime Holding Insurance Services, Inc. d/b/a Claims Direct Access ("CDA"). We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). Discerning no abuse of discretion, we affirm the well-reasoned ruling of the lower tribunal.
The trial court alternatively dismissed the action on the principle of comity.
PROCEDURAL HISTORY
In 2014, Matthew Bellina, a patron at a park in Cocoa Beach, Florida, sustained a catastrophic spinal cord injury after traveling head-first down an inflatable water attraction, known as the "Hippo Slide." At the time of the accident, Surf Slide, LLC, the operator of the Hippo Slide, was insured under a claims-made, surplus lines policy acquired by virtue of its membership participation in International Special Events and Recreation Association, Inc. ("ISERA").
ISERA is a risk retention purchasing group, charged with offering commercial liability insurance under a master group policy.
The policy was subscribed to severally, both by a number of syndicates affiliated with Lloyd's of London, including Certain Underwriters, and Prime Insurance Company ("PIC"). The subscribers were assigned various shares under the policy, with Certain Underwriters ultimately bearing a greater risk than PIC.
Lloyd's of London manages an insurance market that was created over 300 years ago in a London coffee shop to insure shipping risks. The market today is a large, complex arrangement under which "Names" who as members of the Society of Lloyd's become members in the market, join individual underwriting syndicates formed to insure a broad range of risks. Managing agents assemble the syndicates, collect premiums from the insureds, assess the Names, manage the risks, and provide annual accountings to the Names. The underwriting capital for each syndicate is supplied by cash advanced by the Names, and excess losses—those that exceed the premiums paid—are insured by the Names’ commitment to pay losses from their personal assets "down to their last cufflinks." The integrity of the market is also assured by a Central Fund, created from assessments of Names, which the market's managing body, the Council of Lloyd's, controls and maintains to disburse to insureds when Names default.
Allen v. Lloyd's of London, 94 F.3d 923, 926 (4th Cir. 1996).
Certain Underwriters retained CDA, an affiliate of PIC, to serve as its thirdparty claims administrator under a Service Level Agreement. Pursuant to the agreement, CDA was charged with investigating, adjusting, and settling any claims arising under the policy.
I. Brevard County Actions
Between 2015 and 2016, Bellina filed two separate lawsuits in Brevard County, Florida. The first, against Surf Slide, grounded in tort, alleged damages for personal injuries. The second, against Surf Slide, ISERA, PIC, and Certain Underwriters, sought a judicial determination as to coverage under Surf Slide's policy. In April 2017, the Fifth District Court of Appeal issued an opinion ordering the trial court to dismiss the declaratory action as premature under Florida's nonjoinder statute. See Int'l Special Events & Recreation Ass'n, Inc. v. Bellina, 219 So. 3d 138 (Fla. 5th DCA 2017) ; see also § 627.4136(1), Fla. Stat.
II. Utah Action
On July 21, 2017, PIC filed a declaratory judgment action in Utah against Surf Slide and Certain Underwriters, alleging it had no obligation to defend or indemnify Surf Slide in the pending tort suit due to a lack of coverage. Without objection, Certain Underwriters was realigned as a party-plaintiff and, on September 15, 2017, filed an answer and crossclaim against Surf Slide. In the crossclaim, it, too, contended coverage did not lie, thus, it had no duty to defend or indemnify Surf Slide.
In late 2017, after attending mediation, Certain Underwriters and Bellina tentatively reached a settlement for a sum of money vastly exceeding the policy limits. On January 12, 2018, PIC filed a crossclaim for declaratory relief against Certain Underwriters, contending Certain Underwriters was estopped from seeking contribution from PIC until the issue of coverage was resolved. PIC further asserted, "[e]ven if coverage [is] found to be afforded, [PIC], through CDA and with the informed consent of [Certain] Underwriters, did not act in bad faith in adjusting [Bellina's] claims."
On February 12, 2018, PIC filed a motion for summary judgment as to coverage. While the motion remained pending, Bellina and Certain Underwriters formalized their settlement agreement and notified the court of the same.
On March 9, 2018, CDA filed a motion to intervene, attaching a proposed complaint in intervention. In the complaint, CDA sought a judicial declaration that "[Certain] Underwriters [could not] seek indemnity from [CDA] for any alleged ‘bad faith’ actions or otherwise, as such exposure [was] predicated upon the existence of coverage." On May 21, 2018, the court held a hearing on the coverage summary judgment and motion to intervene. The judge orally granted both partial summary judgment, finding that coverage did not lie, and intervention.
Both rulings were reduced to writing on June 25, 2018.
Thereafter, Certain Underwriters, moved to dismiss CDA's complaint in intervention, seeking refuge in the doctrine of forum non conveniens. On September 28, 2018, after conducting a hearing, the trial court denied the motion.
On May 21, 2019, Certain Underwriters filed a counterclaim against CDA, alleging breach of contract, negligence, common law indemnification, and equitable subrogation.
III. Miami-Dade County Action
Meanwhile, on June 1, 2018, eleven days after the Utah court granted partial summary judgment and intervention, Certain Underwriters filed the instant suit in Miami-Dade County, alleging breach of contract, negligence, common law indemnification, and equitable subrogation. Certain Underwriters attempted to serve CDA with the complaint during the month of June, however, CDA filed a motion to quash, contesting service of process. On May 3, 2019, the parties jointly filed a document deeming service of process "effective as of the date of [the] stipulation."
Both the Miami-Dade complaint and the Utah counterclaim against CDA allege the same facts and seek identical relief.
CDA moved to dismiss the case, contending Utah presented a more convenient forum. After duly conducting a hearing on the motion, the trial court granted dismissal. The instant appeal ensued.
STANDARD OF REVIEW
A "forum non conveniens determination is committed to the trial court's sound discretion and may be reversed only when there has been a clear abuse of discretion." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S. Ct. 252, 266, 70 L. Ed. 2d 419 (1981) ; see Fla. R. Civ. P. 1.061(a) ("The decision to grant or deny the motion for dismissal rests in the sound discretion of the trial court, subject to review for abuse of discretion."). "Thus, where a trial court examines all of the relevant facts, and applies the proper legal standard so as to arrive at a reasonable determination, the trial court's decision should not be overturned." Cont'l Cas. Co. v. Mich. Mut. Ins. Co., 183 Ill.App.3d 778, 132 Ill.Dec. 121, 539 N.E.2d 431, 433 (1989).
LEGAL ANALYSIS
I. Forum Non Conveniens
"State laws giving courts jurisdiction over non-residents in certain circumstances have resulted in increased maneuverability for plaintiffs by providing a wider choice of forum." Forum Non Conveniens, A New Federal Doctrine, 56(7) Yale L.J. 1234, 1234 (1947). In order "[t]o counter this advantage[,] defendants have increasingly been allowed to rely on the doctrine of forum non conveniens to restrict the plaintiff to the appropriate state court." Id.
Thus, "[t]he rule of ‘forum non conveniens’ is an equitable one embracing the discretionary power of a court to decline to exercise the jurisdiction it has over a transitory cause of action when it believes that the action before it may be more appropriately and justly tried elsewhere." St. Louis-San Francisco Ry. Co. v. Superior Court, 276 P.2d 773, 775 (Okla. 1954) (citation omitted). Under the doctrine, "a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute." Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S. Ct. 839, 842, 91 L. Ed. 1055 (1947) superseded by statute on other grounds as recognized in Am. Dredging Co. v. Miller, 510 U.S. 443, 114 S. Ct. 981, 127 L. Ed. 2d 285 (1994).
II. Kinney Factors
In 1996, our high court expressly adopted the federal doctrine of forum non conveniens. See Fla. R. Civ. P. 1.061(a)(1)-(4). In Kinney System, Inc. v. Continental Insurance Co., 674 So. 2d 86, 93 (Fla. 1996), "the Florida Supreme Court held that a trial court presented with a motion to dismiss on the basis of forum non conveniens can go directly (meaning, without engaging in any federal venue-choice of law qualifying test), to a four-step analysis." Tananta v. Cruise Ships Catering & Servs. Int'l, N.V., 909 So. 2d 874, 884 (Fla. 3d DCA 2004).
Under the requisite analysis, "[a]t the outset of any ... inquiry, the court must determine whether there exists an alternative forum." Piper Aircraft, 454 U.S. at 254 n.22, 102 S. Ct. at 265 n.22 ; see Fla. R. Civ. P. 1.061(a)(1). This is because, "[i]n all cases in which the doctrine of forum non conveniens comes into play, it presupposes at least two forums in which the defendant is amenable to process; the doctrine furnishes criteria for choice between them." Gilbert, 330 U.S. at 506-07, 67 S. Ct. at 842.
After ascertaining the availability of the alternative forum, the arbiter must next perform an evaluation of the private interests of the litigants, and, if the same are evenly balanced, the public interests in not burdening the limited judicial resources of a forum that has an attenuated connection to the controversy. Kinney, 674 So. 2d at 90 ; see Fla. R. Civ. P. 1.061(a)(2)-(3).
The relevant private interest factors include:
the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, "vex," "harass," or "oppress" the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy.
Kinney, 674 So. 2d at 89 (quoting Gilbert, 330 U.S. at 508, 67 S. Ct. at 843 ).
With regard to the public interest, it is axiomatic
[t]here is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.
Id. (quoting Gilbert, 330 U.S. at 509, 67 S. Ct. at 843 ).
Lastly, the court must "ensure that plaintiffs can bring suit in the alternative forum." Rolls-Royce, Inc. v. Garcia, 77 So. 3d 855, 859 (Fla. 3d DCA 2012) (citing Kinney, 674 So. 2d at 90 ); see Fla. R. Civ. P. 1.061(a)(4).
A. Adequate Alternate Forum
Here, despite conceding below that Utah constitutes an adequate alternative forum, Certain Underwriters now argues for the first time on appeal that Utah is not suitable because one or more of its claims may be barred by Utah's statute of limitations. Although the rule forbidding consideration of issues first raised on appeal is not firmly etched in stone, no facts bearing on this issue were adduced in the trial court. Bellin v. Johns-Manville Sales Corp., 141 Mich.App. 128, 366 N.W.2d 20, 23 (1984) ; see also Sunset Harbour Condo. Ass'n v. Robbins, 914 So. 2d 925, 928 (Fla. 2005) ("As a general rule, it is not appropriate for a party to raise an issue for the first time on appeal.") (citations omitted); Greenspoon Marder, P.A. v. Moscoso, 114 So. 3d 327, 329 n.2 (Fla. 3d DCA 2013) ("This argument was not raised in the lower tribunal, and therefore, the issue was not developed in the record ... As such, the [appellant] cannot raise this issue on appeal.") (internal citation omitted). Consequently, we find no error in the lower court's conclusion that Utah presents an available adequate forum for resolution of the existing claims.
B. Private and Public Interests
Turning our analysis to the remaining convenience factors, ordinarily, "a strong presumption [exists] in favor of the plaintiff's choice of forum, which may be overcome only when the private and public interest factors clearly point towards trial in the alternative forum." Piper Aircraft, 454 U.S. at 255, 102 S. Ct. at 265-66. "When the plaintiff is foreign, however, ... the choice [is entitled to] less deference." Id. at 255-56, 102 S. Ct. at 266 ("[H]owever, ... the presumption [in favor of plaintiff's choice of forum] applies with less force when the plaintiff or real parties in interest are foreign."); see Cortez v. Palace Resorts, Inc., 123 So. 3d 1085, 1096 (Fla. 2013) ("[E]xcept where the plaintiff is from another country, the presumption in favor of the plaintiff's initial choice of forum is always entitled to great deference."). Further, as "the central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient," Piper Aircraft, 454 U.S. at 256, 102 S. Ct. at 266, " ‘the degree of deference to be given to a plaintiff's choice of forum moves on a sliding scale’ depending on the degree of convenience reflected by the choice in a given case." Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146, 154 (2d Cir. 2005) (citation omitted). Indeed,
the more it appears that the plaintiff's choice of a ... forum was motivated by forum-shopping reasons ... the less deference the plaintiff's choice commands and, consequently, the easier it becomes for the defendant to succeed on a forum non conveniens motion by showing that convenience would be better served by litigating in another ... court[ ].
Iragorri v. United Techs. Corp., 274 F.3d 65, 72 (2d Cir. 2001).
Here, it is undisputed that Certain Underwriters, having its domicile and principal place of business in the United Kingdom, is a foreign plaintiff. As it conducts business primarily in London, New York, and Connecticut, its witnesses and documents are not located in Florida. Consequently, its ties to Florida are tenuous, and the trial court properly afforded little deference to its choice of forum.
While the purportedly tortious act giving rise to any liability under the policy occurred in Florida, albeit Brevard County, Bellina settled his claim against Certain Underwriters through mediation. Accordingly, as CDA is an Illinois corporation, with its principal place of business in Utah, the instant dispute, solely encompassing those issues finding their genesis in CDA's claims administration, directly involves only non-domiciliaries of Florida.
Further, as CDA lacked authority to transact business in Florida, the relevant claim was both presented and adjusted in Utah. As such, Utah's interest in this dispute is substantial.
Pertinent documentary evidence bearing on the issue of proof remains in Utah. Although we are not unmindful that current technology allows for the expeditious transmission of most records, CDA further demonstrated that its witnesses reside or work in Utah and its assets are found in Utah. These circumstances amply support the conclusion that the relative ease and access to proof, along with potential cost of travel, favors litigation in Utah.
Finally, of critical, and perhaps paramount, significance, is the immutable fact that this suit was filed well after the inception of the Utah dispute. Where a second action requiring much of the same evidence is pending in another court and is not dismissible, the preference for a single forum should weigh heavily. See Cargill, Inc. v. Hartford Accident & Indem. Co., 531 F. Supp. 710, 714-15 (D. Minn. 1982) (noting convenience, judicial economy, and the possibility of inconsistent results as reasons to litigate related actions in same forum); cf. Kearney v. Savannah Foods & Indus., Inc., 350 F. Supp. 85, 88 (S.D. Ga. 1972) (declining to dismiss admiralty case as "[c]utting a lawsuit in two and litigating the halves in different countries strikes ... as an anfractuous way to handle litigation crying for single rather than piecemeal situation"). Here, the Utah court declined to dismiss the original action on the basis of forum non conveniens, and Certain Underwriters and CDA have submitted to the jurisdiction of the Utah court. Indeed, both have sought affirmative relief against one another. As was aptly articulated in a similar dispute:
[t]here is no reason for identical suits to be proceeding in different courts ... thousands of miles apart. Such parallel proceedings incite a race to judgment in the hope that the judgment in the home forum will favor [one] litigant and be usable to block the other suit by interposing a defense of res judicata in it.
Indeed, such a race to judgment would be present in this case, as the Utah court previously denied Certain Underwriters’ motion to dismiss on forum non conveniens grounds.
U.S.O. Corp. v. Mizuho Holding Co., 547 F.3d 749, 750 (7th Cir. 2008). Accordingly, the lower court properly determined that litigating two lawsuits involving substantially the same issues, contemporaneously, will serve to burden the court. Indeed, to continue litigating in Miami-Dade County, a forum bearing little, if any, obvious connection to the existing dispute, will result in the needless expenditure of scarce localized resources.
CONCLUSION
As the record supports the conclusion that the Kinney factors strongly favor Utah as the proper forum in this case, we find no abuse of discretion in the determination that continuing to prosecute the issues exclusively in Utah, "will best serve the convenience of the parties and the ends of justice." Koster v. (Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518, 527, 67 S. Ct. 828, 833, 91 L. Ed. 1067 (1947). As the remaining assignments of error have been rendered moot by virtue of this decision, we hereby affirm the order under review.
Affirmed.