Negligent Vacation Packaging Against Timeshare Promoter – Florida Supreme Court Allows Case Sent to Mexico to Be Brought in Miami

Reversing an appellate court which had upheld a motion to transfer the case to Mexico, Florida`s Supreme Court last week held that a case brought against a resort company which marketed to tourists to promote and sell timeshares at a resort in Mexico should not be dismissed.

In Cortez v. Palace Resorts, a woman was lured to a Mexican resort in an attempt to sell her a timeshare. As part of that inducement, the resort gave her a massage. During the massage, the masseuse sexually assaulted Cortez.

Cortez brought her case in Miami against three Florida businesses that all operated out of Miami. She claimed that the acts giving rise to her case, which included negligent vacation packaging, occurred in Miami. The trial court granted the defendants` motion to dismiss based on forum non conveniens, and Florida`s Third District Court of Appeal affirmed. In a dissent by Judge Rothenberg, she wrote that "The Florida defendants, with a straight face, claim that [Mexico] is a more convenient forum to litigate a United States Citizen`s negligent vacation packaging claim against them, although Miami is where their corporate headquarters is located…" The dissent went on to enumerate other factors in favor of keeping the case in Florida.

Cortez sought review by Florida`s Supreme Court, which on June 20, 2013 reversed the 3<sup>rd</sup> District and held that the trial court erred in dismissing the case. Finding that the 3<sup>rd</sup> District incorrectly applied the Kinney test [for forum non conveniens], and also ruled that the trial court erred in failing to give a strong presumption against disturbing the plaintiff`s choice of forum because she was a California resident. The Supreme Court held that the plaintiff`s residency in another state did not mitigate her right to have the strong presumption in her favor. The Supreme Court adopted much of the dissenting opinion.

According to the Court, Miami is the operational, managerial and marketing center for the entire Palace Resorts Group and is a proper place for the claims being asserted.

Cortez v. Palace Resorts, SC11-1908, June 20, 2013, further clarifies the Court`s prior holding in Kinney System v. Continental Insurance, 674 So.2d 86 (Fla. 1996), which was the Supreme Court`s prior pronouncement on the issue of forum non conveniens.