A California resident sexually assaulted at a Mexican resort controlled by a Miami-based company may have her case heard in Florida, the state Supreme Court ruled.

A California resident sexually assaulted at a Mexican resort controlled by a Miami-based company is entitled to have her lawsuit heard in Florida, the state Supreme Court ruled Thursday.

Justice Barbara Pariente’s opinion reversed the Third District Court of Appeal, which on a 2-1 split held Quintana Roo, Mexico, where the crime occurred, was the place to pursue litigation.

Using its own words against it, Pariente cited a 2004 Third District opinion saying a forum argument “coming from a party sued where it resides is both puzzling and strange.”

Palace Resorts Inc. was sued for vicarious liability, negligent employee hiring and negligent vacation packaging as the company that marketed vacation packages, dealt with customer complaints and hired personnel at the resort.

In 2006, Shahla Rabie Cortez planned a family trip and took her husband and two children to Cancun. She was unaware the vacation package was conditioned on a marketing scheme to sell timeshares and was hounded by salespeople. As an incentive for attending a timeshare presentation, she was offered a massage. Cortez requested a female masseuse but none was available. She alleged she was assaulted after being assured the male masseuse was reputable. The lawsuit was filed in 2008.

“Ms. Rabie suffered a horrific assault while on vacation in Mexico,” said Cortez’s attorney, Carlos F. Gonzalez of Diaz Reus & Targ in Miami. “But the negligent acts and omissions that resulted in that attack were set in motion in Florida. It made sense then and it makes sense now that Ms. Rabie would file suit in Florida.”

Pariente said the Third District misapplied the Supreme Court’s 1996 decision in Kinney Systems v. Continental Insurance when making the forum decision. Kinney said less deference is given to a plaintiff’s choice of forum if the plaintiff is out of state and has little if any contact with Florida.

The Third District failed to focus on the fact that the allegations of negligence derived from conduct in Florida, Parients found.

Historically, courts have weighed a list of factors in determining jurisdiction. First, the plaintiff must allege sufficient jurisdictional facts to bring the action. Second, there must be sufficient minimum contacts to satisfy constitutional due process requirements.

Pariente placed new emphasis on a third factor. She referred to a test from the U.S. Court of Appeals for the Eleventh Circuit that clarified public interest as a consideration in the analysis.

“We therefore now adopt it as part of the Florida test,” Pariente said. “We emphasize that Florida courts also should always consider this third step … even if the private factors weigh more heavily in favor of the alternative forum, and should require that the balance of public interests also be tipped in favor of the alternative forum in order to defeat the presumption favoring the plaintiff’s forum choice.”

Illusory Remedy?

Gonzalez said the court’s emphasis on the public interest will have an important impact on how courts consider forum claims.

“Florida clearly has an interest in ensuring that its corporate citizens do everything possible to avoid brutal attacks like the one Ms. Rabie endured,” Gonzalez said.

A case cannot be dismissed if the alternative remedy is essentially illusory, Pariente wrote.

In Cortez’s case, the complaint of negligent vacation packaging had no recognizable equivalent in Mexican courts. She would be forced to adapt her legal theory to causes of action rarely, if ever, employed in that country.

Pariente said forum law is designed to prevent the abuse of the right to choose the forum.

“It certainly is not designed to empower defendants to disadvantage plaintiffs in reverse forum-shopping where, as in a scenario like the one presented in this case, litigating in Florida would not cause a substantial burden to the defendant,” she wrote.

Pariente also emphasized the distinction between plaintiffs from foreign countries and U.S. citizens from other states. The main reason courts are suspicious of foreign nationals is they are motivated to seek a jurisdiction with laws most favorable to their claim.

Citing a 1950 federal case, she said, “The presumption in favor of the plaintiff’s initial forum choice … is at its strongest when the plaintiffs, residents or corporations are of this country.”

Justices R. Fred Lewis, Peggy Quince, Jorge Labarga and James E.C. Perry concurred.

Justice Charles Canady dissented, with concurrence from Chief Justice Ricky Polston, arguing there was no direct conflict with Kinney and finding against jurisdiction in Florida.

Palace Resorts attorney Ricardo Cata of Wilson, Elser, Moskowitz, Edelman & Dicker in Miami said he would not be able to review or comment on the opinion by deadline.