SMA Behavioral Health Services, Inc. v. Loewinger—(Per Curiam Logue, Miller, Lobree; 3DCA; 2/1/23).
This is a wrongful death action, but it’s mostly about an attempt by defendants to transfer venue of the case from Miami-Dade to Volusia County. The facts that gave rise to the claim are simple.
- On October 1, 2018, the decedent, Douglas M. Loewinger, was arrested in Volusia County for a probation violation and admitted to the Volusia County Jail, where he remained for ten days. For years prior to the arrest, the decedent had a history of psychiatric issues and was in the care of a psychiatrist. A few weeks after being released from jail, the decedent was found unconscious on the floor of his bedroom in Volusia County, apparently as the result of a suicide attempt. The decedent was admitted to Halifax Hospital and remained there until his death on December 3, 2018.
The personal representative (“PR”) of Loewinger’s estate was his father, and the PR filed a wrongful death suit against a private company and another subcontractor that provided medical and mental health services at the jail. He alleged they were negligent or grossly negligent in treating him while he was in custody and that the malpractice essentially led to the suicide.
The PR filed the suit in Miami-Dade on the basis that one of the companies had its corporate headquarters there. The defendants moved to transfer venue back to Volusia. The trial court denied the motion, and the defendants appealed. The DCA noted that courts consider three factors in deciding whether to grant a motion under the doctrine of forum non conveniens: (1) the convenience of the parties; (2) the convenience of the witnesses; and (3) the interest of justice.
The standard of review is supposed to be abuse of discretion, but the DCA reversed anyway even though it did not engage in any discussion of how the Miami-Dade venue would be “inconvenient” for the defendants or witnesses. Unlike the other panel of the same court in Brown & Brown of Florida, Inc. v. Tzadik Acquisitions, LLC, summarized above, this decision does not cite 47.011, Fla. Stat., which Judge Gordo, in the other decision, relied upon to show that actions may be brought 1) in the county where the defendant resides; 2) where the cause of action accrued; or 3) where the property in litigation is located. Unlike Judge Gordo, this panel did not cite caselaw stating that it is the prerogative of the plaintiff to select the venue and when the choice is based on one of the three statutory alternatives, it would be honored.
Instead, the DCA focused on the fact that Volusia is where all the material facts occurred and the fact that “most” of the witnesses and individual defendants reside “in or near” Volusia County. Volusia is the venue where the decedent was arrested, kept in custody, received the allegedly deficient care, was released from custody, took the actions leading to his suicide, was hospitalized after his actions, and died. (NOTE: Deland, the county seat of Volusia, is around 260 miles from Miami, a 4-hour drive or so. This seems like an extremely low bar for proving “inconvenience.”) The DCA opinion essentially stands for the proposition that denial of a motion to transfer will be reversed if the movant can show 4 that 1) the incident took place in the proposed venue; and 2) the great majority of witnesses or most of the witnesses and parties live in or near the proposed venue). The DCA utterly ignored analysis of inconvenience or the statutory bases for selecting venue or the caselaw that a plaintiff can choose the venue. The DCA did not deny that at least one of the two defendants was headquartered in MiamiDade; it simply did not factor into their decision.