10 Fla. L. Weekly Supp. 856a
Insurance — Personal injury protection — Standing — Assignment — Validity — Trial court granting motion to dismiss for lack of standing erred in considering weight and import of assignment of benefits and direction to pay documents filed as attachments to motion to dismiss since documents were outside four corners of complaint which alleged execution of valid assignment — Error could not be avoided by treating motion to dismiss as motion for summary judgment where fact that motion was heard the same day it was filed would violate rule requirement that motions for summary judgment be served at least 20 days before they are heard — Further, by failing to raise lack of standing in answer and affirmative defenses, insurer waived issue
PRIMARY MEDICAL CARE, INC., as assignee of DIOSDADO RODRIGUEZ, Appellant, v. STAR CASUALTY INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 02-193 AP. L.C. Case No. 00-6829 SP 26. September 2, 2003. On appeal from a final order of dismissal with prejudice from the County Court of Miami-Dade County, the Honorable Lawrence D. King presiding. Counsel: Christian Carrazana, Bernstein and Maryanoff, for Appellant. Mark A. Gatica, Troy D. Ferguson & Associates, P.A., for Appellee.
(Before Judith L. Kreeger, Henry H. Harnage and Gill S. Freeman, JJ.)
OPINION
(Gill S. Freeman, J.) Primary Medical Care, Inc., as assignee of Diosdado Rodriguez, sued Star Casualty Insurance Co. for payment of PIP Benefits. On November 28, 2000 Star Casualty filed a Motion to Dismiss. That motion was abandoned. Star Casualty subsequently filed an Answer with Affirmative Defenses on January 2, 2001. An order setting the case for jury trial was entered December 20, 2001. The morning of trial, May 7, 2002, Star Casualty filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction, with attachments.
The principal argument in Star Casualty’s Motion to Dismiss for Lack of Subject Matter Jurisdiction centered on whether Primary Medical had standing to bring this PIP action. Specifically, Star Casualty contended that the assignment upon which Primary Medical based standing was actually invalid. The trial court entertained and granted Star Casualty’s Motion to Dismiss.
“[T]he standard of review for the dismissal of a complaint for failure to allege facts establishing the plaintiff’s standing is de novo review.” Putnam County Environmental Council, Inc. v. Board of County Com’rs, 757 So.2d 590 (Fla. 5th DCA 2000), citing Turner v. Hillsborough County Aviation Auth., 739 So. 2d 175, 177 (Fla. 2d DCA 1999) (appellate review of a party’s standing to bring the action presents a pure question of law to be reviewed de novo), affirmed and approved in Fuchs v. Robbins, 818 So. 2d 460 (Fla. 2002). In conducting this review, “the trial court is confined to the allegations within the four corners of the Complaint, must accept these allegations as true, and may not speculate as to what the true facts may be or what facts may ultimately be proved in the trial of the cause.” Lopez-Infante v. Union Cent. Life Ins. Co., 809 So. 2d 13,15 (Fla. 3d DCA 2002), citing Emile v. Florida Power and Light Co., 426 So. 2d 1152 (Fla. 3d DCA 1983).
Primary Medical’s Complaint alleged that “Diosdado Rodriguez executed a proper assignment of benefits to the Plaintiff.” For purposes of Star Casualty’s Motion to Dismiss, the trial court was obligated to accept this allegation as true. Assuming that Primary Medical was proceeding as an assignee of Diosdado Rodriguez, there is no doubt that Primary Medical alleged facts sufficient to establish standing. Kaplan v. Cowan Liebowitz & Latman, P.C., 832 So. 2d 138 (Fla. 3d DCA 2002); Cadle Co., Inc. v. Schecter, 602 So.2d 984 (Fla. 3d DCA 1992). The trial court’s decision to the contrary constituted clear error.
The basis for the trial court’s error was its decision to weigh the evidence before it.1 Specifically, the court considered the weight and import of the “Assignment of Benefits” as well as a “Direction to Pay” filed as attachments to the second Motion to Dismiss. However, such documents existed outside the four corners of the Complaint and should never have been considered on a motion to dismiss. This error could not have been avoided by treating Star Casualty’s Motion to Dismiss as a motion for summary judgment under Fla. R. Civ. P. 1.510. Motions for summary judgment must be served at least 20 days before they are to be heard. The fact that Star Casualty’s Motion was heard the day it was served and filed would have violated the clear dictate of Fla. R. Civ. P. 1.510.
Finally, we note in the alternative that the action must also be reversed pursuant to Schuster v. Blue Cross and Blue Shield of Florida, Inc., 2003 WL 354932 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D505a]. “There is no question that lack of standing is an affirmative defense that must be raised by the defendant and that the failure to raise it generally results in waiver.” Id. Having failed to raise standing in its Answer and Affirmative defense, Star Casualty waived the opportunity to raise the issue on the morning of trial.
Accordingly, the judgement of the trial court is REVERSED. The cause is REMANDED for proceedings consistent herewith and for an award of attorney’s fees pursuant to §627.428, Fla. Stat. (Judith L. Kreeger and Henry H. Harnage, JJ., CONCUR).
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1Perhaps the true genesis of the trial court’s error was entertaining Star Casualty’s ambush challenge to standing in the first place. Such late filing prevented Primary Medical from mounting a researched response. Such tactics are inappropriate and the fact that they have become course of habit for Troy D. Ferguson and Associates, P.A., is troublesome.
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