       Third District Court of Appeal
                                State of Florida

                          Opinion filed October 26, 2016.
          Not final until disposition of timely filed motion for rehearing.
                                ________________

                                 No. 3D16-999
                          Lower Tribunal No. 15-294 M
                              ________________

            Allstate Fire and Casualty Insurance Company,
                                     Appellant,

                                         vs.

                           Joseph Hradecky, et al.,
                                     Appellees.


     An Appeal from a non-final order from the Circuit Court for Monroe
County, Timothy J. Koenig, Judge.

      Walton Lantaff Schroeder & Carson LLP and John P. Joy and Sara M.
Sandler (Fort Lauderdale), for appellant.

      Keller, Keller & Caracuzzo, P.A. and David M. Lores (West Palm Beach);
Purdy, Jolly, Giuffreda & Barranco, P.A. (Fort Lauderdale) and Summer M.
Barranco (Fort Lauderdale), for appellees.


Before SHEPHERD, LAGOA, and FERNANDEZ, JJ.

      LAGOA, J.

      Allstate Fire and Casualty Insurance Company (“Allstate”) seeks review of

the trial court’s order denying Allstate’s motion to dismiss Count II of Plaintiff,
Joseph Hradecky’s (“Hradecky”), complaint based on improper venue.1 Because

the plain and unambiguous language of the Endorsement contains a mandatory

forum selection clause for bringing any suit for UM benefits in Pennsylvania, we

reverse the trial court’s order and remand.

I.    FACTUAL AND PROCEDURAL HISTORY

      Allstate issued a personal automobile policy to Hradecky (the “Policy”).

The policy period ran from November 15, 2014 until May 15, 2015, and provided

for both Uninsured Motorists (“UM”) and Underinsured Motorists (“UIM”)

coverage.    On November 19, 2014, Hradecky received an Amended Policy

Endorsement (the “Endorsement”). Of relevance to this appeal, the address for

Hradecky listed on the Policy Declarations page was 177 McKenzie Road, Clinton,

Pennsylvania.

      On December 3, 2014, Hradecky’s motor vehicle was rear-ended by a

vehicle driven by an officer of the Monroe County Sheriff’s Office. At the time of

the accident, Hradecky’s vehicle was covered by the Policy and its Endorsement.

      Hradecky subsequently filed suit alleging two counts: Count I for

Negligence against Rick Ramsay, as Sheriff of Monroe County, Florida; and Count

II for Negligence against Allstate.2

1 Count II is the only claim alleged against Allstate.
2 Although Hradecky styled Count II of the Amended Complaint as a negligence
claim, a review of the allegations shows that the claim is one for failure to pay
contractual UM benefits under the Policy, i.e., a claim for breach of contract.
Count II of the Amended Complaint asserts that “Hradecky had in effect [at the
time] an uninsured/underinsured motorist insurance policy with Defendant
                                          2
      Allstate filed a Motion to Dismiss Count II of Plaintiff’s Amended

Complaint, arguing that dismissal was required based on the following mandatory

forum selection clause contained in the Endorsement titled “Pennsylvania Auto

Amendatory Endorsement”:

                   The following endorsement changes your policy.
             Please read this document carefully and keep it with
             your policy.
                   ....
                   II.    In Part 3, Uninsured Motorists Insurance
             and Underinsured Motorists Insurance, the following
             changes are made:
                   ....
                          E. In Uninsured Motorists Insurance, the
             If We Cannot Agree provision is replaced by the
             following:

                    If We Cannot Agree
                     If the insured person and we do not agree on that
             person’s right to receive damages or on the amount, then
             upon mutual consent, the disagreement will be settled by
             arbitration. Unless you and we agree otherwise,
             arbitration will take place in the county in which your
             address shown on the Policy Declarations is located. If
             the insured person and we do not agree to arbitrate, then
             the disagreement will be resolved in a court of competent
             jurisdiction. Any and all lawsuits related in any way to
             this coverage shall be brought, heard, and decided in the
             county in which your address shown on the Policy
             Declarations is located.

(emphasis in original).




[Allstate] which would inure to the benefit of the Plaintiff Joseph Hradecky, in
that, Defendant, Rick Ramsay, as Sheriff of Monroe County, Florida, is
uninsured.”
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      In its Motion, Allstate asserted that Monroe County, Florida was an

improper venue for Hradecky’s UM claim and that, based on Hradecky’s address

listed on his Policy Declarations page, the Endorsement’s forum selection clause

required Hradecky to bring suit in Allegheny County, Pennsylvania.

      In response at the hearing, Hradecky argued that “it would be judicially

uneconomical” to litigate his UM claim in Pennsylvania while continuing to

litigate his negligence claim against the sheriff’s office in Florida. Hradecky

further argued that because the Endorsement conflicted with the venue clause in

the Policy, the provision which provided greater coverage prevailed.

      At the hearing on the Motion to Dismiss, the trial court agreed with

Hradecky and specifically ruled “that in order for the endorsement to change the

policy the way you [Allstate’s counsel] are suggesting, it would have had to have

referenced the general provision, as well. And it did not do that. And so it leaves

the general provision in the policy intact, and it provides language which conflicts

with that.” In its subsequent written order, the trial court denied the motion “for

the reasons stated in the record.”

      Allstate filed its Motion for Reconsideration of Allstate’s Motion to Dismiss

Count II of Plaintiff’s Complaint, which the trial court denied without hearing.

This appeal ensued.

II.   STANDARD OF REVIEW



                                         4
       We review de novo a trial court’s order denying a motion to dismiss based

on the interpretation of contractual forum selection clause.         See Espresso

Disposition Corp. 1 v. Santana Sales & Mktg. Grp., Inc., 105 So. 3d 592, 594 (Fla.

3d DCA 2013); see also State Farm Mut. Auto. Ins. Co. v. Menendez, 24 So. 3d

809, 810 (Fla. 3d DCA 2010) (“Because the interpretation of an insurance contract

presents a question of law, this Court’s standard of review is de novo.”), quashed

on other grounds, 70 So. 3d 566 (Fla. 2011).

III.   ANALYSIS

A.     ENDORSEMENTS PREVAIL OVER GENERAL INSURANCE POLICY

       Under Florida law, an insurance policy is treated like a contract, and

therefore ordinary contract principles govern the interpretation and construction of

such policy. See Certain Interested Underwriters at Lloyd’s London v. Pitu, Inc.,

95 So. 3d 290 (Fla. 3d DCA 2012). In denying Allstate’s Motion to Dismiss, the

trial court specifically found that the general venue provisions of the Policy

prevailed over the forum selection clause contained in the Endorsement. We find

that the trial court erred in its finding.

       The law in Florida is clear that to the extent an endorsement is inconsistent

with the body of the policy, the endorsement controls. See Family Care Ctr., P.A.

v. Truck Ins. Exch., 875 So. 2d 750, 752 (Fla. 4th DCA 2004) (“Even if there were

an ambiguity between the endorsement and the body of the policy, the

endorsement, which is clear, controls.”); Fireman’s Fund Ins. Co. v. Levine &

                                             5
Partners, P.A., 848 So. 2d 1186, 1187 (Fla. 3d DCA 2003) (finding that “the terms

of an endorsement such as the one sued upon control over anything purportedly to

the contrary in any other insuring agreement”); Steuart Petroleum Co., Inc. v.

Certain Underwriters at Lloyd’s London, 696 So. 2d 376, 379 (Fla. 1st DCA 1997)

(finding that “to the extent an endorsement is inconsistent with the body of the

policy, the endorsement controls”).

      Here, the Endorsement modifies and amends the insurance contract with

respect to forum selection. Specifically, the Endorsement states that “[a]ny and all

lawsuits related in any way to this coverage shall be brought, heard, and decided in

the county in which your address shown on the Policy Declarations is located.”

(emphasis in original). Moreover, “[e]ven if there were an ambiguity between the

endorsement and the body of the policy, the endorsement, which is clear, controls.”

Family Care Ctr., 875 So. 2d at 752. Accordingly, we find that the trial court erred

in finding that the Policy’s endorsement language did not control.

B.    MANDATORY VS. PERMISSIVE FORUM SLECTION CLAUSES

      Our analysis, however, does not end with the finding that the Endorsement’s

language controls, as we must consider whether the Endorsement’s forum selection

clause is mandatory or permissive. Whether a forum selection clause is mandatory

or permissive depends on language indicating exclusivity. See Sonus-USA, Inc. v.

Thomas W. Lyons, Inc., 966 So. 2d 992, 993 (Fla. 5th DCA 2007). If the forum

selection clause states that any litigation must or shall be initiated in a specified

                                         6
forum, the clause is mandatory. Absent such language, the clause is permissive.

Id.

      The Endorsement’s forum selection clause states: “Any and all lawsuits

related in any way to this coverage shall be brought, heard, and decided in the

county in which your address shown on the Policy Declarations is located.”

(emphasis in original).     Because the clause at issue specifically provides that

litigation “shall be brought, heard, and decided” in a specified forum (in this case,

the county for the address shown on Hradecky’s Policy Declarations page), we

find that the clause is mandatory. See Golden Palm Hosp. Inc. v. Stearns Bank

Nat’l Ass’n, 874 So. 2d 1231, 1237 (Fla. 5th DCA 2004) (finding that use of the

word “shall” in the documents is “indicative of a mandatory provision rather than

one that is permissive”).

      Absent a showing that a mandatory forum selection clause is unreasonable

or unjust, a trial court must enforce the clause. See Manrique v. Fabbri, 493 So. 2d

437, 440 (Fla. 1986); see also Farmers Group, Inc. v. Madio & Co., Inc., 869 So.

2d 581, 582 (Fla. 4th DCA 2004).

      It is not enough to show that litigation in the forum would result in

additional expense or inconvenience. Instead, a party challenging a mandatory

forum selection clause as unreasonable or unjust must establish that trial of this

case outside of Florida would be so gravely difficult and inconvenient that he will



                                          7
for all practical purposes be deprived of his day in court. See Manrique, 493 So.

2d at 440 n.4; see also Farmers, 869 So. 2d at 583.

       Here, the trial court made no finding that the Endorsement’s mandatory

forum selection clause was unreasonable or unjust. Nor could it have made such a

finding, as Hradecky neither argued below that the Endorsement’s clause was

unreasonable or unjust, nor presented any evidence to that effect.           Instead,

Hradecky argued below that “it would be judicially uneconomical” to have him

litigate his UM claim in Pennsylvania while litigating his negligence claim against

the Sherriff’s office in Florida.

       Absent findings or record evidence establishing unreasonableness or

unjustness of the forum selection clause, we cannot find that the clause at issue is

invalid. See Taurus Stornoway Invs., LLC v. Kerley, 38 So. 3d 840, 843 (Fla. 1st

DCA 2010) (finding forum selection clause valid absent any argument or record

evidence establishing an unreasonable or unjust result).

III.   CONCLUSION

       Accordingly, for the reasons stated, we reverse the trial court’s denial of

Allstate’s Motion to Dismiss Count II based on improper venue and we remand for

entry of an order of dismissal.

       Reversed and remanded for proceedings consistent with this opinion.




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