BROWN & BROWN OF FLORIDA, INC., etc. v. TZADIK ACQUISITIONS, LLC, etc.

• Court: District Court of Appeal of Florida
• Decided: February 1, 2023
• Docket: 22-1288
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed February 1, 2023. Not final until disposition of timely filed motion for rehearing.

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No. 3D22-1288 Lower Tribunal No. 22-2040 ________________

Brown & Brown of Florida, Inc., etc., et al., Appellants,

vs.

Tzadik Acquisitions, LLC, etc., et al., Appellees.

An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Jose M. Rodriguez, Judge.

Freeborn & Peters LLP, and Lawrence P. Ingram, Melissa B. Murphy, Robert A. Stines and Stanton A. Fears (Tampa), for appellants.

Fleischmann PLLC, and Jeffrey Fleischmann (New York, NY); Fuerst Ittleman David & Joseph, and Allan A. Joseph, for appellees.

Before SCALES, HENDON and GORDO, JJ.

GORDO, J. Brown & Brown of Florida, Inc., (“Brown & Brown”) 1 appeal a trial court

order denying their motion to transfer venue. We have jurisdiction. Fla. R.

App. P. 9.130(a)(3)(A). Because we find the trial court did not abuse its

discretion in denying Brown & Brown’s motion to transfer venue, we affirm.

In 2017 Tzadik Acquisitions, LLC, (“Tzadik”)2, was sued in a wrongful

death claim after Alfred Lance III, was shot and killed while present as a

business invitee on Tzadik’s Kings Trail Apartments property in Duval

County. Tzadik had previously hired Brown & Brown, which represented

itself as an insurance expert, to plan and manage Tzadik’s insurance

requirements. Brown & Brown met with Tzadik in its Miami-Dade office and

provided Tzadik with an insurance proposal and a “Summary of Bound”

which both indicated Kings Trail was a covered property. As the wrongful

death action proceeded, Tzadik learned Kings Trail was not covered by the

insurance policies it had previously obtained with assistance from Brown &

Brown. As a result, Tzadik was forced to pay the wrongful death suit out of

pocket.

On April 20, 2022, Tzadik filed a complaint against Brown & Brown in

Miami-Dade County for breach of fiduciary duties and negligence alleging

1 Ian Shinnick and Ara Dresner are included as appellants. 2 Tzadik also includes Kings Trail Apartments, Tzadik Management Group, LLC, Tzadik Management Group 2, LLC, and Tzadik Properties.

2 Brown & Brown failed to apply or obtain coverage for Kings Trail despite

representing it as a covered property to Tzadik. Brown & Brown filed a

motion to transfer venue to Duval County. Tzadik filed a response asserting

venue was proper in Miami-Dade. Brown & Brown filed a reply. On June

24, 2022, the trial court held a hearing on the motion to transfer venue and

subsequently entered an order denying Brown & Brown’s motion to transfer

venue. This appeal followed.

“We review a lower court’s order on a motion to transfer or dismiss for

improper venue for abuse of discretion.” Huber v. Huber, 314 So. 3d 363,

365 (Fla. 3d DCA 2020). Pursuant to section 47.011, Florida Statutes,

“[a]ctions shall be brought only in the county where the defendant resides,

where the cause of action accrued, or where the property in litigation is

located.” “It is the prerogative of the plaintiff to select the venue of his or her

suit, and when that choice is one of the three statutory alternatives, it will be

honored.” Weinberg v. Weinberg, 936 So. 2d 707, 708 (Fla. 4th DCA 2006).

In the operative complaint Tzadik raised claims against Brown & Brown

for negligence and breach of fiduciary duties. “[A] tort claim is deemed to

have accrued where the last event necessary to make the defendant liable

for the tort took place. The last event occurred when the harmful force, set

in motion by the defendant’s negligence, first took effect on the body or the

3 property of the plaintiff. Thus, a claim for tort arose where the harmful force

first took effect, or where the plaintiff suffered injury.” Fontana v. Hugo

Intern., Inc., 781 So. 2d 433, 435 (Fla. 3d DCA 2001) (quoting Tucker v.

Fianson, 484 So. 2d 1370, 1371 (Fla. 3d DCA 1986)).

To determine where a plaintiff’s injury occurred a court must look to the

allegations laid out in the complaint. See McDaniel Reserve Realty

Holdings, LLC v. B.S.E. Consultants, Inc., 39 So. 3d 504, 509–10 (Fla. 4th

DCA 2010) (looking at the injury alleged in plaintiff’s complaint to determine

“where the plaintiff first suffers injury.”). Pursuant to the factual allegations

in the complaint, Brown & Brown made representations to Tzadik regarding

the insurance policies and covered properties in Miami-Dade, Tzadik

entered into the policies in Miami-Dade and Tzadik made its wrongful death

payment from its office in Miami-Dade. As the facts alleged in the instant

complaint accrued in Tzadik’s chosen forum, we find no abuse of discretion

in the trial court’s finding that Miami-Dade was the proper forum.

Affirmed.