Facts
- Tip Top Enterprises, Inc. purchased workers’ compensation coverage through a self-insurers fund administered by Summit Consulting, Inc.
- The agreement contained a forum-selection clause stating that Polk County, Florida, would be the proper venue for litigation involving collection or other disputes under the agreement.
- After an employee reported an on-the-job injury, Summit denied coverage on the ground that the policy had lapsed for nonpayment of premium.
- Tip Top sued Summit in Miami-Dade County seeking declaratory and injunctive relief and damages for breach of contract.
- Summit filed an answer generally denying, among other things, Tip Top’s venue allegation, and filed a motion to dismiss the breach-of-contract count; Summit did not assert improper venue as a defense in either filing.
- Nearly four months later, Summit moved to change venue to Polk County based on the forum-selection clause, and the trial court granted the motion.
Issues
- Whether a defendant waives an improper venue defense based on a contractual forum-selection clause by failing to raise it in a pre-answer motion or plead it specifically and with particularity in the answer, as required by Florida Rule of Civil Procedure 1.140(b).
Decision
- The Third District Court of Appeal reversed the nonfinal order transferring venue to Polk County.
- The court held Summit waived its venue objection by not timely asserting improper venue under Rule 1.140(b).
- The case was remanded for further proceedings in Miami-Dade County.
Legal Principles
- Under Fla. R. Civ. P. 1.140(b), improper venue may be raised by motion before a responsive pleading, or, if no motion is made, must be asserted in the responsive pleading specifically and with particularity.
- When a party makes a pre-answer motion but omits improper venue, the venue defense is waived under the rule’s waiver provision.
- A general denial of a plaintiff’s venue allegation does not preserve an improper venue defense; the defense must be affirmatively and particularly pleaded when required.
- A contractual forum-selection clause does not excuse noncompliance with procedural requirements for timely asserting improper venue; the venue objection remains waivable.
Conclusion
The appellate court enforced Rule 1.140(b)’s timing and pleading requirements and held that Summit’s reliance on a forum-selection clause could not revive a venue defense it failed to raise in its initial motion or plead with required specificity, requiring the action to remain in Miami-Dade County.