Patton Boggs Reinsurance Newsletter - December 2012: Florida Appellate Court Affirms Decision Rejecting Forum Non Conveniens Challenge to Foreign Reinsurer’s Complaint


ABA Capital Markets Corp. v. Provincial De Reaseguros C.A., No. 3D12-130, 2012 WL 5416441 (Fla. Dist. Ct. App. Nov. 7, 2012).

In this appeal of a lower court’s non-final order denying defendant’s motion to dismiss a foreign reinsurer’s complaint on the basis of forum non conveniens, the Third District Court of Appeals for the State of Florida permitted a Venezuelan reinsurer to avail itself of the forum of its choice.

The foreign reinsurer entered into a transaction with an entity incorporated in the British Virgin Islands (“BVI Entity”).  The transaction involved a bond swap and off-shore investments in U.S. dollars.  When the BVI Entity refused to return the bonds or transfer them to a designated custodian, the reinsurer filed suit in Florida state court alleging fraud, civil theft, conversion, breach of fiduciary duty, unjust enrichment and breach of contract. 

The BVI Entity moved to dismiss the complaint for failure to state a claim and forum non conveniens, arguing that Venezuela was the more appropriate forum.  On appeal, the court addressed only forum non conveniens and applied a four-part analysis, reviewing 1) whether an adequate alternative forum exists; 2) relevant factors of private interest; 3) factors of public interest, where private interests are in balance or near equipoise; and 4) if the plaintiff could reinstate its suit in the alternative forum without undue inconvenience or prejudice.  After noting that Venezuela was a suitable alternative forum, the appellate court turned to private interests.  Although acknowledging that a plaintiff’s choice of forum is generally respected, the court stated that a plaintiff’s choice “is given less deference when the plaintiff is not a resident of the forum state, or has little bona fide connection to that state.”  The court found, however, that the main witness and president of the BVI Entity resided in Miami, the BVI Entity held the bonds in Miami and maintained bank accounts there, other witnesses had traveled from Venezuela to Miami and were able to continue to do so, and all key documents had been translated from Spanish to English.  Ultimately, the court held that although the Venezuelan reinsurer was “entitled to less deference” than a plaintiff who resided in Florida, the lower court correctly denied the BVI Entity’s motion to dismiss.  Finding that the second factor of its analysis was not met, the court did not address the remaining factors.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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