Unified Medical, LLC, a/a/o Roberto Prin v. Progressive Preferred Insurance Company

• Court: District Court of Appeal of Florida
• Decided: January 17, 2024
• Docket: 2023-0001
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed January 17, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-01 Lower Tribunal No. 21-3833 CC ________________

Unified Medical, LLC, a/a/o Roberto Prin, Appellant,

vs.

Progressive Preferred Insurance Company, et al., Appellees.

An Appeal from the County Court for Miami-Dade County, Jeffrey Rosinek, Senior Judge.

Tenenbaum Law Group, PLLC, and Jason Tenenbaum, for appellant.

Kubicki Draper, P.A., Joye B. Walford and Michael C. Clarke (Tampa), for appellee Progressive Preferred Insurance Company.

Before SCALES, GORDO and BOKOR, JJ.

GORDO, J. Unified Medical, LLC A/A/O Roberto Prin (“Unified Medical”) appeals

an order granting Progressive Preferred Insurance Company’s (“Progressive

Preferred”) motion to quash and motion to dismiss for lack of personal

jurisdiction and forum non conveniens. We have jurisdiction. Fla. R. App.

P. 9.130(a)(3)(C)(i). Because Unified Medical failed to refute or rebut the

allegations by providing its own affidavit or other sworn proof to establish a

basis for personal jurisdiction, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Unified Medical filed the underlying complaint for breach of contract

based on the insured’s involvement in an automobile accident in Florida. For

purposes of personal jurisdiction, the underlying complaint alleged: “At all

times material hereto, Defendant was a corporation duly licensed to transact

business in the State of Florida and maintained agents for the transaction of

its customary business in Miami-Dade County, Florida.” In response,

Progressive Preferred filed a limited appearance, a motion to quash service

and a motion to dismiss for lack of personal jurisdiction and forum non

conveniens. Progressive Preferred asserted the trial court lacked personal

jurisdiction because it is incorporated in and a resident of the State of Ohio

and it does not conduct any business in Florida.

2 Unified Medical filed a response arguing the motion to quash and

motion to dismiss should be denied under an alter ego theory because

Progressive Preferred was controlled by Progressive Corporation or

Progressive Group, which conducts business in Florida. In support of its

argument, Unified Medical solely attached three website pages which did not

refute or rebut Progressive Preferred’s jurisdictional arguments. Progressive

Preferred subsequently filed a sworn declaration executed by Jill M. Betts

(“Betts”), its senior claims manager. The trial court conducted a non-

evidentiary hearing and granted Progressive Preferred’s motion to quash

and motion to dismiss. This appeal followed.

LEGAL ANALYSIS

“This Court must conduct a de novo review of a trial court’s ruling on a

motion to dismiss for lack of personal jurisdiction.” Wendt v. Horowitz, 822

So. 2d 1252, 1256 (Fla. 2002). “The Florida Supreme Court has described

the two-step process required to be applied by a trial court in its

determination of personal jurisdiction over a particular defendant.” Rollet v.

de Bizemont, 159 So. 3d 351, 355 (Fla. 3d DCA 2015). “First, it must be

determined that the complaint alleges sufficient jurisdictional facts to bring

the action within the ambit of the statute; and if it does, the [second] inquiry

is whether sufficient ‘minimum contacts’ are demonstrated to satisfy due

3 process requirements.” Id.; see also Venetian Salami Co. v. Parthenais, 554

So. 2d 499, 502 (Fla. 1989). In Florida, “both parts must be satisfied for a

court to exercise personal jurisdiction over a non-resident

defendant.” Rollet, 159 So. 3d at 356.

We find Unified Medical met its initial pleading burden by asserting a

basis for personal jurisdiction under section 48.193(1)(a)(1), Florida

Statutes. Pursuant to Venetian Salami, if the allegations in the complaint are

sufficient, the burden shifts and “[a] defendant wishing to contest the

allegations of the complaint concerning jurisdiction or to raise a contention

of minimum contacts must file affidavits in support of his position.” 554 So.

2d at 502. The affidavit must be “legally sufficient” to support the defendant’s

position. Tobacco Merchs. Ass’n of U.S. v. Broin, 657 So. 2d 939, 941 (Fla.

3d DCA 1995).

Progressive Preferred provided the declaration of Betts attesting that

Progressive Preferred is incorporated in and is a resident of the State of

Ohio; it does not have any agents or offices in Florida or conduct business

in Florida; the insurance policy at issue was originated in Ohio; and

Progressive Preferred does not underwrite Florida insurance policies. Once

Progressive Preferred filed its affidavit refuting Unified Medical’s theory of

jurisdiction, it became incumbent upon Unified Medical as the plaintiff to

4 substantiate the jurisdictional allegations in response to Progressive’s legally

sufficient affidavit. See Venetian Salami, 554 So. 2d at 502 (“The burden is

then placed upon the plaintiff to prove by affidavit the basis upon which

jurisdiction may be obtained.”).

Here, Unified Medical failed to provide an affidavit or any sworn proof

to meet its burden. 1 Instead Unified only produced three documents: (1) the

New York State Department of Financial Services Consent Order; (2) the

LexisNexis Search; and (3) the News Release. These three documents did

not refute Betts’ sworn declaration. By failing to meet its burden, Unified

Medical acted at its own peril in attending a non-evidentiary hearing at which

the trial court would only be able to consider the amended complaint, the

motion to quash and motion to dismiss and Betts’ affidavit. Rollet, 159 So.

3d at 356–57 (“[The] affidavit served to shift the burden to de Bizemont to

refute or rebut the allegations by providing her own affidavit or other sworn

proof to establish a basis for personal jurisdiction of Rollet. By failing to do

so, de Bizemont acted at her own peril in attending a non-evidentiary hearing

1 We note pursuant to Venetian Salami “[only] [i]f the plaintiff files a counter- affidavit raising conflicting facts, [should] the trial court [] then hold a limited evidentiary hearing to resolve any disputed facts relating to jurisdiction.” Broin, 657 So. 2d at 941 (citing Venetian Salami, 554 So. 2d at 503). “Absent a counter-affidavit, the averments in [defendant’s] affidavit stood unrebutted, thus requiring no reconciliation of averments or the taking of evidence to resolve disputed jurisdictional allegations.” Rollet, 159 So. 3d at 357.

5 at which the trial court would be able to consider only the complaint, the

motion to dismiss, and Rollet’s affidavit.”).

As no such sworn proof was forthcoming from Unified Medical as to

the basis for jurisdiction, the trial court was obligated to grant Progressive

Preferred’s motion to dismiss. See Broin, 657 So. 2d at 941 (“If no such

sworn proof is forthcoming from the plaintiff as to the basis for jurisdiction,

the trial court must grant the defendant’s motion to dismiss.”) (footnote

omitted).

Affirmed.