11 Fla. L. Weekly Supp. 703a
Insurance — Personal injury protection — Standing — Unincorporated medical provider — No error in denying insurer leave to amend answer to include affirmative defense that provider/assignee lacks capacity to enter valid assignment or sue as entity because it is not corporation where amendment would be futile because unincorporated associations may sue and be sued as entities pursuant to Florida’s Uniform Partnership Act, and therefore, demonstration of provider’s absence of incorporation does not show conclusively that provider could not contract or sue as an entity — Summary judgment — Although unsworn and unauthenticated documents such as document on which trial court based summary judgment are generally inadmissible and cannot form basis for grant of summary judgment, insurer waived issue for purposes of appeal by failing to object or in any way raise issue in trial court
ALLSTATE INSURANCE COMPANY, Appellant, v. PREFERRED MEDICAL & REHAB, INC. (a/a/o Maily Ubinas), Appellee. Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County. Case No. 03-9308, Division X. L.C. Case No. 02-10732-SC. May 12, 2004. William Levens, Presiding Circuit Judge. Review of final order of the County Court, Hillsborough County. Counsel: Charles W. Hall, St. Petersburg, for Appellant. Timothy Patrick, Tampa, for Appellee.
Appellant Allstate Insurance Company appeals a final summary judgment entered against it in the county court. This Court has jurisdiction. The standard of review is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000.) We affirm the decision of the trial court for reasons stated below.
The facts are as follows. Appellee Preferred Medical sued Allstate for unpaid Personal Injury Protection (PIP) benefits. Appellee alleged standing to prosecute the suit by stating that it was a corporation and had taken an assignment of benefits from an Allstate insured. Allstate responded to the complaint by stating that it was “without knowledge” as to the validity of the assignment of benefits, and by denying that the insured had performed all conditions precedent to allow Preferred Medical to recover benefits under the policy.
After the parties engaged in discovery, Preferred Medical filed a Motion for Summary Judgment. This Motion was supported only by an unsworn “exhibit,” which was a listing, apparently created by Preferred’s counsel, of allegedly overdue medical bills. Preferred Medical did not present any other evidence. Specifically, it did not offer the medical bills at issue, did not come forward with any proof that the bills were overdue, and furthermore did nothing to demonstrate the validity of its assignment of benefits or standing to maintain the lawsuit. Allstate responded to the summary judgment motion by presenting the trial judge with a certificate from the Florida Department of State demonstrating that Preferred Medical & Rehab, Inc. has never been a corporate entity in Florida, and by requesting that she take judicial notice of this fact pursuant to Section 90.202(5), Florida Statutes.
At the summary judgment hearing, Allstate argued the merits of the certificate’s contents, and read the substance of the certificate into the record. However, the trial judge refused to consider this evidence when passing on the motion, stating that it was not a proper vehicle to raise an issue of fact. Allstate informed the trial judge that it had only recently learned that Preferred Medical was not a corporation and requested leave to amend its answer and affirmative defenses to raise the defense of lack of standing. The trial judge denied this request based solely upon the fact that leave to amend had not been sought prior to the motion hearing.
The judge thereafter used Appellee’s unsworn exhibit as the sole evidentiary basis for judgment in favor of Preferred Medical, awarding a sum identical to that set forth in the exhibit. This appeal followed.
Appellant contends that the trial judge erred when she refused to consider evidence of a possible disputed issue of fact, granted summary judgment despite a complete lack of competent evidence, and denied Appellant’s requests for leave to amend its answer to raise meritorious affirmative defenses. Appellee counters that the trial court’s judgment was correct because Appellant failed to introduce any evidence or plead any defense to the claims asserted in Appellee’s complaint. Appellee adds that the trial court acted within its discretion to preclude introduction of unsworn evidence and refuse to permit Appellant to amend its answer, filed over one year earlier. Appellee adds that the fact that its document filed in support of its motion for summary judgment was unsworn is irrelevant since Appellant waived its ability to raise any affirmative defense to the complaint. We affirm the decision of the trial court for reasons stated below.
We first address the matter of the trial court’s decision to deny Appellant leave to amend its answer to include an affirmative defense relating to Appellee’s ability to maintain this action against Appellant.
At the summary judgment hearing, Appellant presented to the trial court evidence that Preferred Medical was not a corporation, despite its claim to the contrary in its pleadings, on the assignment taken from Allstate’s insured, and in the claims Appellee submitted for payment on the insured’s behalf. Appellant contends that because Appellee is not a corporation, it lacks capacity to enter into a contract or sue as an entity. Appellant argues this impacts Appellee’s ability to maintain an action in two ways. First, its attempt to enter into a contract as an entity may render the assignment invalid, removing Appellee’s standing to sue (see Hartford Ins. Co. of Southeast v. St. Mary’s Hosp., Inc., 771 So.2d 1210 (Fla. 4th DCA 2000) (without a valid assignment of the right to personal injury protection (PIP) benefits, a hospital lacked standing to bring suit against the automobile insurer)). Additionally, Appellant claims that, at common law, an unincorporated entity lacks capacity sue in the name of the entity, citing Asociacion De Perjudicados Por Inversiones Efectuadas En U.S.A. v. Citibank, F.S.B., 770 So. 2d 1267, 1269 (Fla. 3d DCA 2000). While Appellant’s statement about the common law is true, the case law upon which Appellant relies do not apply to the instant case.1 Pursuant to Florida’s Uniform Partnership Act, unincorporated associations may sue and be sued as entities. In short, while Appellant has, perhaps, successfully demonstrated the absence of incorporation of Appellee, Appellant has not conclusively shown that Appellee could not contract, sue or be sued, as an entity.
We are not unmindful that it is the policy of this state to liberally grant leaves to amend, notwithstanding the fact that it was late in the proceedings. See Bill Williams Air Conditioning & Heating, Inc. v. Haymarket Co-op Bank, 592 So.2d 302 (Fla. 1st DCA1991)(courts should be especially liberal when leave to amend pleadings is sought at or before hearing on motion for summary judgment). Still, the decision whether to grant leave to amend is that of the trial judge, who must take into account whether the privilege has been abused and whether the amendment sought would be futile. Id. Because Appellant has not shown conclusively that the organizational structure of Appellee was such that Appellee could not maintain a lawsuit against Appellant, we conclude that Appellant has not shown a likelihood of success on the issue. Thus, we conclude that the result was correct.
We now turn our attention to the matter of the trial court’s entry of summary judgment on the basis of an unsworn and unauthenticated document filed by counsel for Preferred Medical. Such documents are generally inadmissible and cannot form the basis for a grant of summary judgment. Daeda v. Blue Cross & Blue Shield of Florida, Inc., 698 So.2d 617 (Fla. 2d DCA 1997). However, Appellant did not object or in any way raise the issue in the trial court; therefore, it waived the issue for purposes of this appeal. E.J. Associates, Inc. v. The John and Aliese Price Foundation, Inc., 515 So.2d 763 (Fla. 2d DCA 1987) (failure to raise an issue in the trial court results in waiver for purposes of appeal).
It is therefore ORDERED that the decision of the trial court is AFFIRMED. It is further ORDERED that Appellee’s motion for appellate attorney’s fees is GRANTED. (Baumann and Crenshaw, JJ., concur.)
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1Asociacion De Perjudicados Por Inversiones Efectuadas En U.S.A. v. Citibank, F.S.B., 770 So. 2d 1267, 1269 (Fla. 3d DCA 2000) is an entity which the court determined did not fall under the Uniform Partnership Act, Chapter 620, Florida Statutes (UPA). Appellant also relied upon Guyton v. Howard, 525 So. 2d 948, 956 (Fla. 1st DCA 1988), in which a nonprofit association was also determined not to fall under the UPA.
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