02-2905 DEPT. OF INSUR. V. AMADOR

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State: Florida

Court: Florida Third District Court

Docket No: 02-2905 DEPT. OF INSUR. V. AMADOR

Case Date: 04/02/2003

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM, A.D. 2003

FLORIDA DEPARTMENT OF INSURANCE, DIVISION OF RISK MANAGEMENT,, Appellant, vs. FRANK AMADOR, Appellee.

** ** ** ** CASE NO. 3D02-2905 ** LOWER TRIBUNAL NO. 02-18371 **

Opinion filed April 2, 2003. An appeal from a non-final order from the Circuit Court for Miami-Dade County, Barbara S. Levenson

Vernis & Bowling of Miami, P.A. and Patrick H. Gonyea; Littler Mendelson, P.C. and Scott A. Forman, for appellant. James H. Greason, for appellee.

Before GREEN and RAMIREZ, JJ. and NESBITT, Senior Judge.

GREEN, J.

The

Department

of

Insurance

appeals

a

non-final

order

denying its motion to dismiss due to improper venue. following reasons, we reverse. Appellee, International Frank Amador, formerly was employed sued in by 1997

For the

Florida by two

University

("FIU"),

individuals for alleged acts committed by Amador in the course and scope of his employment at FIU. The Department of Insurance

("the Department") provided counsel to Amador to defend against these suits. In February of 2001, the Department withdrew its

provided representation, and Amador secured his own counsel to represent him. The Department reimbursed Amador for his legal

costs until August of 2001, when it advised Amador that it would no longer reimburse his legal fees or indemnify him against any adverse judgment. A few months later, both lawsuits against

Amador were dismissed. Amador filed suit against the Department, claiming that the Department's withdrawal of legal representation constituted a breach of contract. The Department moved to dismiss the case

due to improper venue pursuant to the "home venue privilege." The trial judge heard argument, and ultimately denied the motion to dismiss. This appeal follows.

The Department argues that the trial judge erred in refusing to dismiss the case because under Florida's "home venue

2

privilege," the proper venue in this suit would be Leon County, Florida, where the Department's principle agency headquarters is located. Amador claims that valid exceptions to the home venue

privilege apply, and therefore, he was correct in bringing suit in Miami-Dade County. The home venue privilege is a long-established principle of Florida common law which, absent waiver or exception, entitles the state or one of its agencies or subdivisions in civil actions to sue or be sued in the county where the agency or subdivision maintains its principle headquarters. Carlile v.

Game & Fresh Water Fish Comm'n, 354 So. 2d 362, 363-64 (Fla. 1977). The privilege is intended to promote orderly and uniform

handling of state litigation, and help minimize expenditure of public funds and manpower. Id. at 364. There are three

recognized exceptions to the home venue privilege: (1) statutory waiver; (2) state agency as joint tortfeasor; and (3) state agency as "sword-wielder." Amador contends that both the joint We

tortfeasor and sword-wielder exceptions apply to this case. disagree.

Amador argues that the joint tortfeasor exception applies because the Department's co-defendants in this case are being sued in tort; however, in order for the joint tortfeasor

exception to apply, the state agency itself must be sued as a

3

joint tortfeasor.

See Bd. of County Comm'rs of Madison County

v. Grice, 438 So. 2d 392, 394 (Fla. 1983); Dep't of Mgmt. Svcs. V. Fastrac Constr., 701 So. 2d 1200, 1201 (Fla. 5th DCA 1997). We have before us a simple breach of contract claim by Amador against the Department; therefore, this exception is not

implicated. The sword-wielder doctrine, which Amador also claims is applicable here, applies only in cases where the official state action being complained of has been or is being performed in the county where the suit is filed, or when the threat of such action in said county is both real and imminent. Carlile, 354

So. 2d at 363 (citing Smith v. Williams, 35 So. 2d 844 (Fla. 1948)). judicial The purpose is to enable plaintiffs to obtain direct protection from an alleged unlawful invasion of

fundamental constitutional rights within the county where the suit was initiated. Id. at 365. Florida common law also

acknowledges the application of the sword-wielder doctrine where plaintiffs' personal property rights are threatened. See e.g.,

Dep't of Labor & Employment Sec. v. Lindquist, 698 So. 2d 299, 303 (Fla. 2d DCA 1997)(finding plaintiff sufficiently

articulated claims for deprivation of procedural due process in personal wielder property doctrine interest to to support state application of of sword venue

deprive

agency

home

4

privilege). Amador's suit against the Department is not "in the nature of a shield against the state's thrust," as no constitutionally guaranteed right or property interest was infringed upon. See

Monroe County v. Graham, 493 So. 2d 74, 75 (Fla. 3d DCA 1986). There is no constitutional right in Florida to have one's

attorney's fees paid.

Furthermore, Amador is not entitled by

statute to have his fees paid under

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