Opinion
6D23-301 6D23-302
05-26-2023
Travel Insurance Facilities, PLC, Appellant, v. Naples Community Hospital, Inc., Appellee. Union Reiseversicherung Aktiengesellschaft, Appellant, v. Naples Community Hospital, Inc., Appellee.
P. Brandon Perkins, of Campbell Conroy &O'Neil, Plantation, for Appellants. Timothy M. Hartley, of Hartley Law Offices, PLC, Fort Lauderdale, for Appellee.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Collier County Lower Tribunal No. 2018-CA-002546-0001-XX Elizabeth V. Krier, Judge.
P. Brandon Perkins, of Campbell Conroy &O'Neil, Plantation, for Appellants.
Timothy M. Hartley, of Hartley Law Offices, PLC, Fort Lauderdale, for Appellee.
STARGEL, J.
These appeals have been consolidated for the purposes of this opinion.Appellants Travel Insurance Facilities, PLC (TIF), and Union Reiseversicherung Aktiengesellschaft (URV) contest the denial of their motions to dismiss for lack of personal jurisdiction. We reverse.
These cases were transferred from the Second District Court of Appeal to this Court on January 1, 2023.
BACKGROUND
The underlying action involves a dispute over allegedly unpaid or underpaid claims for emergency medical services rendered to several foreign patients by Naples Community Hospital, Inc. (NCH). Each of the individual patients had purchased travel insurance from TIF, which is a corporation existing under the laws of the United Kingdom. TIF served as the Managing General Agent for URV, which is an insurance company existing and operating under the laws of Germany. TIF is responsible for marketing, issuing, and administering travel insurance policies underwritten by URV. These policies provide coverage when the insured receives emergency medical treatment while traveling abroad.
After receiving treatment at NCH, each of the insureds executed an assignment of benefits in favor of NCH. NCH submitted bills for each patient to TIF, which disagreed as to the appropriate amount to be reimbursed for the services provided. Subsequently, NCH filed suit against TIF and several of the insured individuals in Collier County. In response to the original complaint, TIF and the insureds moved to dismiss for lack of personal jurisdiction. The trial court granted the insureds' motions and dismissed them from the action but denied TIF's motion. TIF appealed to the Second District, which affirmed the trial court's ruling on the grounds that "NCH's complaint adequately pleaded the jurisdictional basis for exercising long-arm jurisdiction over TIF and because TIF failed to file an affidavit or other sworn proof contesting the jurisdictional allegations." Travel Ins. Facilities, PLC v. Naples Cmty. Hosp., Inc., 330 So.3d 108, 109 (Fla. 2d DCA 2021).
While that appeal was pending, TIF filed an amended motion to dismiss, and the trial court permitted the parties to take discovery on the issue of personal jurisdiction. NCH took the deposition of TIF's representative, Jonathan Phillips, who testified about TIF's relationship with URV and the process for handling claims when an insured receives treatment abroad. When asked about TIF's history of handling claims in Florida, Phillips confirmed that TIF handled hundreds of claims during a five-year period from 2015 through 2019. Phillips further explained that TIF receives compensation from the insurer based on a flat fee and a percent of the savings obtained by negotiating the charges from providers.
NCH subsequently filed an amended complaint adding URV as a defendant, followed by a "Corrected First Amended Complaint," which is the operative complaint for purposes of this appeal. Appellants each moved to dismiss the Corrected First Amended Complaint for lack of personal jurisdiction and improper venue. In support of their motions, Appellants submitted nearly identical affidavits from their corporate representatives asserting, among other things, that Appellants: (1) have no office, telephone listing, or mailing address in Florida; (2) have no officers, directors, agents, or employees in Florida; (3) have no bank accounts or other tangible personal or real property in Florida; (4) do not hold meetings in Florida; (5) have not directed any advertising specifically toward Florida residents; (6) have never underwritten insurance policies in Florida; and (7) are not aware when clients purchase travel insurance that they will be traveling to Florida. TIF's corporate representative also specifically attested that TIF's salespersons "operate exclusively within the United Kingdom and the Channel Islands."
In response, NCH submitted the affidavit of Steven DeLisi, who attested that he obtained a quote for a travel insurance policy on TIF's website from his home in Florida. A copy of the policy quote attached to DeLisi's affidavit reflects that he provided an address located in the UK. Under the heading "What are my obligations?" in the policy quote, the following requirements are included:
You must be a resident of the United Kingdom, Channel Islands or BFPO and has not spent more than 6 months abroad in the 12 months prior to buying this policy; You must not already be abroad when the trip starts; All trips must start and end in the United Kingdom, the Channel Islands or BFPO; At the start of the policy you must give complete and accurate answers to any questions we may ask you.
NCH also relied upon the deposition testimony given by URV's corporate representative, Hans-Otto Gilla, in Lee Memorial Health System v. Travel Insurance Facilities, PLC, et al., 20-CA-002619 (Fla. 20th Cir. Ct., filed Apr. 24, 2020),which was filed in the lower court upon stipulation of the parties. When asked about URV's policies that are marketed by TIF, Gilla testified that TIF's website could be accessed in Florida, but it was not possible for customers from other countries to enter a contract. Although Gilla acknowledged that it was theoretically possible for someone in the UK to obtain a policy for a relative residing in Florida, he qualified that statement by noting, "the contract partner again would be the resident residing in the UK."
An appeal in that case is currently pending before this Court in case number 6D23-0555
During the hearing on the motions to dismiss, Appellants argued that based on the affidavits and additional evidence, they did not have sufficient contacts with Florida to subject them to personal jurisdiction, and that the forum selection clause in the insurance contracts required the action to be brought in the UK. NCH countered that TIF's history of handling claims in Florida and the nature of Appellants' business practice made it foreseeable that Appellants would be sued in Florida and that the forum selection clause was unenforceable. The trial court ultimately denied the motions to dismiss, finding that Appellants had sufficient minimum contacts to subject them to personal jurisdiction in Florida. The court further determined that the forum selection clause in the policies was permissive, and venue was proper in Collier County.
ANALYSIS
We review an order finding personal jurisdiction over a nonresident defendant de novo. See Schwartzberg v. Knobloch, 98 So.3d 173, 180 (Fla. 2d DCA 2012). In determining whether personal jurisdiction exists over a nonresident defendant, courts must apply the two-step analysis established in Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla. 1989). First, the court determines whether "the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of the [long-arm] statute; and if it does, the next inquiry is whether sufficient 'minimum contacts' are demonstrated to satisfy due process requirements." Id. at 502 (quoting Unger v. Publisher Entry Serv., Inc., 513 So.2d 674, 675 (Fla. 5th DCA 1987)).
The plaintiff bears the initial burden to allege a basis for personal jurisdiction under the long-arm statute. Hilltopper Holding Corp. v. Est. of Cutchin ex rel. Engle, 955 So.2d 598, 601 (Fla. 2d DCA 2007) (citing Venetian Salami, 554 So.2d at 502). If the plaintiff meets this initial pleading requirement, the defendant may contest the jurisdictional allegations by filing a "legally sufficient affidavit or other sworn proof" to the contrary. Id. If the defendant fully disputes the jurisdictional allegations, the burden shifts back to the plaintiff to establish a basis for jurisdiction. Id. at 602. Should the plaintiff fail to produce sworn proof refuting the defendant's allegations and establishing jurisdiction, the motion to dismiss must be granted. Id.
As an initial matter, the trial court failed to specifically address the applicability of the long-arm statute as required under the first prong of Venetian Salami. This alone warrants reversal, as the complete lack of findings on this necessary step of the jurisdictional analysis renders the order finding personal jurisdiction over Appellants deficient. See HJC Corp. v. Gallardo, 338 So.3d 316, 318 (Fla. 3d DCA 2022) ("[I]n all cases in which a foreign corporate defendant challenges the trial court's exercise of personal jurisdiction, the trial court's resulting order should carefully analyze both prongs of Venetian Salami."). We recognize that highly detailed findings may not be required every time personal jurisdiction is challenged; however, if a trial court is to exercise personal jurisdiction over a nonresident defendant, its findings should at a minimum indicate that both steps under Venetian Salami have been satisfied.
Although we are mindful of the de novo standard of review applicable to orders of this nature, "[s]itting as an appellate court, we are precluded from making factual findings ourselves in the first instance." Douglass v. Buford, 9 So.3d 636, 637 (Fl 1 t DCA 2009)
Moreover, setting aside the absence of findings as to this step of the analysis, the statutory grounds for jurisdiction alleged in NCH's complaint are dubious at best. One such allegation was that Appellants were subject to jurisdiction under section 48.193(1)(a)7, Florida Statutes, which applies when a defendant "[b]reach[es] a contract in this state by failing to perform acts required by the contract to be performed in this state." In determining whether payment was due in Florida, "the general rule is that when no place of performance is specified in an insurance policy, the insurer must make payment in the state where the insured resides." Erie Ins. Exch. v. Larose, 202 So.3d 148, 152 (Fla. 2d DCA 2016); see also Venetian Salami, 554 So.2d at 502 (when a contract does not state a place of payment, "the debtor must seek the creditor and thus the breach occurs where the creditor is domiciled" (quoting Osborn v. Univ. Soc'y, Inc., 378 So.2d 873, 874 (Fla. 2d DCA 1979))). Here, although the insureds are not residents of Florida, the underlying action was brought by NCH pursuant to an assignment of benefits. However, Appellants have not specifically addressed the effect of an assignment of benefits on the jurisdictional analysis under this provision of the long-arm statute, which appears to be an open question under Florida law. See, e.g., Pac. Tel. &Tel. Co. v. Geist, 505 So.2d 1388, 1389-90 (Fla. 5th DCA 1987).
None of the remaining grounds for personal jurisdiction alleged in NCH's complaint support a finding of jurisdiction in this case.
Because this appeal can be resolved on other bases, we leave this specific question to be decided in a future case in which the issue has been adequately briefed.
Nevertheless, even assuming NCH's allegations are sufficient to bring this case within the ambit of the long-arm statute, they fail under the constitutional prong of the analysis. "[D]ue process requires that the defendant have certain minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Venetian Salami, 554 So.2d at 500 (citing Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). The Supreme Court has held that "it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)). These contacts "must be the defendant's own choice and not 'random, isolated, or fortuitous[,]' [and] [t]hey must show that the defendant deliberately 'reached out beyond' its home-by, for example, 'exploi[ting] a market' in the forum State or entering a contractual relationship centered there." Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 141 S.Ct. 1017, 1025 (2021) (fourth alteration in original) (first quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984); and then quoting Walden v. Fiore, 571 U.S. 277, 285 (2014)). In other words, the defendant's relationship with the forum state "must arise out of contacts that the 'defendant himself' creates with the forum." Walden, 571 U.S. at 284 (quoting Burger King Corp., 471 U.S. at 475).
Based on the record before the Court, we cannot conclude that Appellants purposefully availed themselves of the privilege of conducting activities in the State of Florida. Appellants have no offices, employees, or property in Florida, do not issue insurance policies in Florida, and do not advertise to Florida residents. The insurance policies at issue were marketed and sold exclusively to residents of the UK. Appellants' contacts with Florida arose when the insureds, after purchasing their insurance policies, subsequently traveled to Florida and received emergency medical treatment. See Hanson, 357 U.S. at 253 ("The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State."); Carefirst of Md., Inc. v. Recovery Vill. at Umatilla, LLC, 248 So.3d 135, 139 (Fla. 4th DCA 2018) ("Correspondence with out-of-state providers resulting from a customer's unilateral move is not enough to establish specific jurisdiction over a foreign defendant-insurer."); Larose, 202 So.3d at 155 ("Even if an insurer might foresee that one of its insureds might travel to Florida, the unilateral activity of that insured, without more, is insufficient to create personal jurisdiction over a nonresident defendant.").
NCH argues that personal jurisdiction exists because the insurance policies contained no geographic limitation on coverage, and it was foreseeable that the insureds might travel to Florida and require emergency treatment. However, the Supreme Court has consistently maintained that foreseeability alone is not a sufficient benchmark for exercising personal jurisdiction under the Due Process Clause. Burger King Corp., 471 U.S. at 474; World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295 (1980); see also Meyer v. Auto Club Ins. Ass'n, 492 So.2d 1314, 1315-16 (Fla. 1986) (holding that insurer that did not maintain an office or solicit business in Florida was not subject to personal jurisdiction based on foreseeable risk of loss in Florida); Hassneh Ins. Co. of Israel v. Plastigone Techs., Inc., 623 So.2d 1223, 1225 (Fla. 3d DCA 1993) ("The mere risk of loss in a forum, even if foreseeable, is not sufficient to subject a foreign defendant to personal jurisdiction." (citations omitted)); Am. Cmty. Mut. Ins. Co. v. Naples Rsch. &Counseling Ctr., Inc., 534 So.2d 836, 838 (Fla. 2d DCA 1988) ("Even though a [foreign] insurance company might foresee that its insured would travel to Florida or elsewhere to receive treatment covered by its policy, . . . mere foreseeability has never been enough to confer personal jurisdiction.").
Furthermore, jurisdiction was not established based upon the evidence in Mr. DeLisi's affidavit, which reflected that he obtained a quote from TIF's website by providing an address in the UK and that the terms of the policy required the policyholder to be a UK resident. The mere availability of access to a website on the "world wide web" does not obviate the clear residency limitations set forth on the site and in the policy. Therefore, the evidence demonstrating that TIF's website was accessible in Florida is insufficient to establish jurisdiction consistent with due process. See, e.g., Westwind Limousine, Inc. v. Shorter, 932 So.2d 571, 575 n.7 (Fla. 5th DCA 2006) (noting that merely posting a passive website does not constitute solicitation of business in Florida for purposes of a jurisdictional due process analysis).
We recognize that TIF's website has a greater degree of interactivity in that it enables prospective customers to obtain quotes for insurance policies; however, the record does not establish that these capabilities were used to solicit business from Florida residents.
CONCLUSION
For these reasons, we reverse the orders denying Appellants' motions to dismiss and remand with instructions for the trial court to dismiss Appellants from this action.
Based on this disposition, we need not reach the venue issue.
REVERSED and REMANDED with instructions.
WOZNIAK and MIZE, JJ, concur