NEW ENGLAND INTERNATIONAL SURETY, INC., A FOREIGN CORPORATION, APPELLANT,
v.
STATE OF FLORIDA, DEPARTMENT OF INSURANCE AND BILL GUNTER AS INSURANCE COMMISSIONER AND TREASURER OF THE STATE OF FLORIDA, APPELLEES
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New England International Surety, Inc. appealed a circuit court order transferring venue from Palm Beach County to Leon County in a declaratory relief action challenging the Florida Department of Insurance's authority to regulate its business. The court held that the "sword-wielder" doctrine did not apply because the Department's cease-and-desist order targeted New England's statewide operations, not specific Palm Beach County activities.
The court affirmed the transfer of venue to Leon County because the sword-wielder doctrine applies only when official action has been or is being performed in the county where suit is filed, or when the threat of such action is real and imminent in that county. Since the Department sought to prevent New England from issuing insurance throughout the entire state rather than targeting specific Palm Beach County activities or property, venue was properly transferred.
[1] The "sword-wielder" doctrine applies only when the official action complained of has been or is being performed in the county where the suit is filed, or when the threat…
[2] A suit may be maintained in a county where the state is the initial "sword-wielder" and the plaintiff's action is a "shield" against the state's action.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The so called "sword-wielder" doctrine applies only in those cases where the official action complained of has in fact been or is being performed in the county wherein the suit is filed, or when the threat of such action in said county is both real and imminent.”
Establishes the narrow scope of the sword-wielder doctrine limiting when a plaintiff can sue in a particular county to challenge state action.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe Department of Insurance filed an administrative complaint on April 10, 1986, alleging that New England, a foreign corporation, was conducting insu…
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DELL, Judge.
On April 10, 1986 appellee, the State of Florida, Department of Insurance (Department), filed an administrative complaint against appellant New England International Surety, Inc. (New England) alleging New England was not authorized by the Department to engage in the business of insurance under the laws of any state of the United States. The complaint further alleged that New England had entered into a contract of reinsurance with Dyna Span Corporation in Boca Raton, as well as other policies of reinsurance for persons or businesses in the cities of Tampa, Merritt Island, Panama City, Cocoa, Fort Myers and Fernandina Beach.
On November 21,1986, the Department filed a first amended complaint alleging that New England had illegally effectuated a contract of reinsurance with Dyna Span and had issued policies to persons or businesses in eighteen cities in Florida as well as cities in three other states. New England was given notice in both complaints that after a hearing, the Department intended to enter an order for New England to cease and desist from engaging in the business of insurance in this state. In response to the complaints, New England requested a formal hearing pursuant to section 120.60, Florida Statutes (1985).
On December 8,1986, New England filed a petition for declaratory and injunctive relief in the circuit court of Palm Beach County. The complaint alleged that New England was not subject to the laws of Florida regulating insurance because federal law allowing New England to conduct its business preempts state law. On January 5, 1987, the Department filed a motion to dismiss the complaint or in the alternative to grant a change of venue. After a hearing on January 22, 1987, the trial court denied the motion to dismiss but granted a motion for change of venue. New England has timely appealed the portion of the order granting a change of venue, alleging that the sword wielder doctrine is applicable entitling it to maintain the declaratory relief action in Palm Beach County.
In Carlile v. Game and Fresh Water Fish Commission, 354 So. 2d 362, 365 (Fla. 1978), the supreme court stated:
The so called “sword-wielder” doctrine applies only in those cases where the official action complained of has in fact been or is being performed in the county wherein the suit is filed, or when the threat of such action in said county is both real and imminent. The Court in [Department of Revenue v.] First Federal [Savings and Loan Ass’n of Ft. Myers, 256 So. 2d 524 (Fla. 2d DCA 1971)] stated:
The question to be answered in these cases may be said to be whether the state is the initial sword-wielder in the matter, and whether the plaintiffs action is in the nature of a shield against the state’s thrust. If so, then the suit may be maintained in the county wherein the blow has been or is imminently about to be laid on. (at 526).
A review of New England’s complaint for declaratory relief indicates that New England is a foreign corporation. The complaint contains no allegation that New England has an office or agent in Palm Beach County or that it has some specific property or other constitutional right situated in Palm Beach County which appellee is seeking to attack. Rather, appellee’s administrative complaint, which was incorporated into New England’s complaint, indicates that the Department is seeking to prevent New England from issuing insurance to any person or entity in the entire state.
Accordingly, we conclude the trial court did not err in transferring venue of this action to Leon County. Cf. Dyna Span Corporation v. State of Florida, Department of Insurance, 509 So. 2d 1234 (Fla. 4th DCA 1987) (where Dyna Span specifically alleged in its complaint for declaratory relief that specific property right in Palm Beach was threatened by agency administrative complaint, venue proper in Palm Beach County).
ANSTEAD and GLICKSTEIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Fred Dickinson & the Fla. Dep't of Hwy. Safety & Motor Vehicles v. Fla. Nat'l Org. FOR Women, Inc., 763 So. 2d 1245 (Fla. 4th DCA 2000)…de, and does not involve an invasion of personal rights of the plaintiff, as in the case here, the sword wielder exception would not apply to excuse compliance with the home venue rule. In New England Int’l Sur., Inc. v. State of Fla. Dep’t of Ins., 511 So. 2d 731, 733 (Fla. 4th DCA 1987), we concluded that an insurer could not maintain its action for injunctive and declaratory relief in Palm Beach County against the Department of Insurance, since the suit was not brought to protect “some specific property or…
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The Sch. Bd. OF Osceola Cnty. v. State Bd. OF Educ., 903 So. 2d 963 (Fla. 5th DCA 2005)…ntly, we conclude the sword-wielder exception does not apply to excuse compliance with the home venue rule. See Dickinson v. Fla. Nat’l Org. for Women, 763 So. 2d 1245 (Fla. 4th DCA 2000); New England Int’l Sur., Inc. v. State of Fla. Dep’t of Ins., 511 So. 2d 731, 733 (Fla. 4th DCA 1987) (concluding that insurer could not maintain its action for injunctive and declaratory relief in Palm Beach County against the Department of Insurance since the suit was not brought to protect “some specific property or other…
Authorities Cited
- Carlile v. Game & Fresh Water Fish Comm'n of the State of Fla., 354 So. 2d 362 (Fla. 1977)
- Dep't OF Revenue v. First Fed. Sav. & Loan Ass'n OF Fort Myers, 256 So. 2d 524 (Fla. 2d DCA 1971)
- Dyna Span Corp. v. State, 509 So. 2d 1234 (Fla. 4th DCA 1987)