Filing # 45195999 E-Filed 08/15/2016 09:08:28 AM

IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT, IN AND
FOR MIAMI-DADE COUNTY, FLORIDA
CIRCUIT CIVIL DIVISION
JAMES F. FEE, JR.,
Individually,
Plaintiff,
vs.

CASE NO. 2016-020607-CA-01

THE NATIONAL COUNCIL ON

COMPENSATION INSURANCE, INC.,
a Florida foreign not for profit corporation,
THE FLORIDA OFFICE OF INSURANCE
REGULATION, an agency of the State of
Florida, and David Altmaier, as
Commissioner of the Florida Office of
Insurance Regulation,
Defendants.
_______________________________________/
OFFICE OF INSURANCE REGULATION AND COMMISSIONER
DAVID ALTMAIERS MOTION TO TRANSFER VENUE
Defendants FLORIDA OFFICE OF INSURANCE REGULATION (Office) and DAVID
ALTMAIER in his official capacity as Commissioner of the Florida Office of Insurance Regulation
(Commissioner), (collectively Defendants), by and through their undersigned counsel and
pursuant to Rule 1.140, Florida Rules of Civil Procedure, file this Motion to Transfer Venue. In
support thereof, Defendants state:
Introduction
1.

On August 10, 2016, Plaintiff James F. Fee, Jr. (Plaintiff) filed the subject

Complaint in the Circuit Court of the Eleventh Circuit, in and for Miami-Dade County. As of this
filing, neither the Office nor the Commissioner has been served. The Office and Commissioner
were notified of the filing of this Complaint by co-Defendant National Council on Compensation

Insurance, Inc. (NCCI).

2.

Upon information and belief, Plaintiff may be seeking to have an emergency hearing

scheduled in this matter as early as today to seek injunctive relief. Neither the Office or
Commissioner have been provided a copy of any motion for injunction or notice of hearing by
Plaintiff. Defendants are unaware of when such a hearing may occur or what specific relief may be
sought.
3.

As set forth in this Motion, Plaintiff filed its Complaint in the improper venue.

Under long-standing law regarding the home venue privilege, this suit must be heard in the
jurisdiction of the headquarters of the Office and Commissioner; the Second Judicial Circuit, in and
for Leon County, Florida.
4.

Defendants file this Motion prior to being served1 due to the possibility that Plaintiff

may seek in an improper venue a hearing to enjoin a hearing scheduled by the Office to occur
tomorrow, August 16, 2016, in Tallahassee, Florida.
5.

No action should be taken on Plaintiffs Complaint prior to transfer to the lawfully

proper venue. Any exigent circumstances argued by Plaintiff arise by virtue of no actions of the
Office or Commissioner and are solely attributable to the timing of the filing of this Complaint.
Argument
6.

The Complaint in this case contains four counts, one of which seeks declaratory and

injunctive relief against Defendants.

7.

In support of venue being proper in Miami-Dade County, Plaintiff alleges the

following with respect to Defendants:

By filing this motion, Defendants are not waiving any defenses in this matter, including
defenses relating to lack of personal jurisdiction. See Department of Children and Families v.
Sun-Sentinel, Inc., 865 So. 2d 1278, 1284 (motion to transfer venue is not a request for
2

Defendant the Florida Office of Insurance Regulation (OIR) is the

division within Floridas Department of Financial Services that has
primary responsibility for regulation, compliance and enforcement of
statutes related to the business of insurance and the monitoring of
industry markets. The Department of Financial Services is
headquartered in Leon County and has an office in Miami-Dade
County.
Venue is also proper considering that the Department of Financial
Services (of which OIR is a division) operates and has an office in
Miami-Dade County.
Complaint 9 & 12 (emphasis added).
8.

The underscored phrases are incorrect.

9.

The Department of Financial Services exists under the Chief Financial Officer of the

State of Florida. 20.121(1), Fla. Stat. The Department of Financial Services has fourteen
statutorily-listed Divisions, ranging from Workers Compensation to Funeral, Cemetery, and
Consumer Services. See 20.121(2)(a)-(n), Fla. Stat. The Office is not a Division in this statutory
list.
10.

Established separately under different section of the same statute is the Financial

Services Commission, composed of the Governor, the Attorney General, the Chief Financial
Officer, and the Commissioner of Agriculture. 20.121(3), Fla. Stat. The Commission is an
independent budget entity and shall not be subject to control, supervision, or direction by the
Department of Financial Services in any manner, including purchasing, transactions involving real
or personal property, personnel, or budgetary matters. Id.
11.

The Commission is sub-organized in two offices, not divisions, one of which

is the Office of Insurance Regulation. 20.121(3)(a), Fla. Stat. Controlled by the Commission,
the Office is headquartered in Tallahassee, Leon County, Florida. The Office has no branch or

affirmative relief and does not waive objections to personal jurisdiction).

3

field offices anywhere in Florida, including Miami-Dade County.

12.

It has long been the established common law of Florida that venue in civil

actions brought against the state or one of its agencies or subdivisions, absent waiver or
exception, properly lies in the county where the state, agency, or subdivision, maintains its
principal headquarters. Carlile v. Game & Fresh Water Fish Comm'n, 354 So. 2d 362, 36364
(Fla. 1977); see Smith v. Williams, 35 So. 2d 844, 847 (Fla. 1948).
13.

Venue for this suit against the Office and Commissioner Altmaier is properly in

Leon County.
14.

The Office has not waived its home venue privilege in this case.

15.

Of the four exceptions to home venue privilege, three of them, waiver of venue by

the Legislature,2 cases in which the governmental defendant is sued as a joint tortfeasor,3 and
cases where confidential public records are sought pursuant to a good cause petition,4 are
obviously inapplicable. The remaining exception, known as sword wielder, applies only
where direct judicial protection is sought from an unlawful invasion of a constitutional right of
the plaintiff, directly threatened in the county where the suit is instituted. Public Service
Commission v. Triple A Enterprises, Inc., 387 So. 2d 940. 942 (Fla. 1980).
16.

In an apparent attempt to plead an invasion of his constitutional rights sufficient to

fall within the sword wielder exception, Plaintiff alleges that notice of the meetings at issue
should have been transmitted to him in Miami-Dade County and co-defendant NCCI should have
delivered public records pursuant to request to him in Miami-Dade County. Complaint 12.

See Barr v. Florida Bd. of Regents, 644 So. 2d 333, 336 (Fla. 1st DCA 1994).

See Board of County Commrs v. Grice, 438 So. 2d 392, 395 (Fla. 1983).

See Department of Children and Families v. Sun-Sentinel, Inc., 865 So. 2d 1278, 1289 (Fla.
4

None of these facts, taken as true, seem to indicate any sort of action by the State. Moreover,
these facts collectively do not show the type of threatened invasion of an individuals
constitutional rights sufficient to invoke the sword wielder exception.
17.

To the contrary, the subject Complaint is quite forthcoming in declaring its true

intent to seek sweeping relief regarding workers compensation insurance rates generally
applicable in the entire State:
In bringing this action, Plaintiff seeks to vindicate not only its own
interest in ensuring transparency in government, but the publics
right to the open government requirements that are bedrock
constitutional and statutory requirements in the State of Florida.
Complaint 6.
18.

The requested relief is as broad as these introductory statements: a judicial

declaration that all future rate filings and meetings must meet the requirements of Section
286.011 and Chapter 627, Florida Statutes.
19.

Where broad relief is sought with respect to general implementation of the laws

under its charge, a state agency has absolute authority to control venue. Triple A Enterprises,
Inc., 387 So. 2d at 942. Defendants in this case are absolutely entitled to home venue privilege in
the Circuit Court of the Second Judicial Circuit, in and for Leon County, Florida.
WHEREFORE, Defendants respectfully request that this Motion be granted; that venue of
this case be transferred to the Second Judicial Circuit, in and for Leon County, Florida; and that
such other relief consistent with this Motion be granted as is necessary and proper.

2004).
5

Respectfully submitted this 15th day of August 2016.

/s/ Shaw Stiller

Shaw Stiller
Chief Assistant General Counsel
Florida Bar No. 936110
Lacy End-Of-Horn
Assistant General Counsel
Florida Bar No. 104735
Office of Insurance Regulation
200 East Gaines Street
Tallahassee, Florida 32399-4206
Telephone: (850) 413-4317
Fax: (850) 922-2543
E-mail: shaw.stiller@floir.com
E-mail: Lacy.End-Of-Horn@floir.com

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing MOTION TO TRANSFER VENUE was
furnished by e-mail to John Shubin at jshubin@shubinbass.com, Lauren Brunswick at
lbrunswick@shubinbass.com, Mark Grafton at mgrafton@shubinbass.com, Tom Maida at
tmaida@foley.com, and Jim McKee at jmckee@foley.com, all this 15th day of August 2016.

/s/ Shaw Stiller

Shaw Stiller
Chief Assistant General Counsel