In The Open MRI Guys of Palm Beach, LLC v. Progressive Am. Ins. Co., No. 3D23-2008 (Fla. 3d DCA Sept. 25, 2024), Kubicki Draper attorneys Michael Clarke and Joye Walford obtained an affirmance of an order granting Progressive’s motion to transfer venue based on the insurance policy’s venue clause. The Third District Court of Appeal held that the venue clause is mandatory, and not permissive, because its plain language establishes the exclusivity of the chosen venue. The clause provides, “Unless we agree otherwise, any legal action against us must be brought in a court of competent jurisdiction for the county and state where the person seeking coverage from this policy lived at the time of the accident.” The plaintiff/appellant argued that the chosen venue is not exclusive because the clause gives the insurer the ability to agree to a different venue. The Court rejected this argument, concluding that the plain language of the clause mandates where an action against the insurer “must be brought.” The Court held that the non-mutuality of the clause does not make it permissive and unenforceable. This case emphasizes the importance of the wording of a venue clause to its enforceability. To be enforceable, it must require that the insured bring an action in a specified venue. Use of terms like “must” and “shall” indicates a mandatory clause while terms like “may” or “should” indicates a permissive clause. Notably, the venue clause was enforced against a PIP provider assignee with the Court finding that the plaintiff “stands in the shoes” of the insured/assignor. Insurers may want to examine the language of their policies’ venue selection clauses to ensure the use of the mandatory language. View the opinion here.