11 Fla. L. Weekly Supp. 44c
Insurance — Defendant’s motion to dismiss granted based on finding that general allegations of material facts contained in complaint are inconsistent with facts revealed by exhibit attached to complaint — Patient’s signature contained within purported assignment of benefits attached as exhibit to complaint appears to be signature other than that of assignor named in complaint and is same signature contained in portion of form where medical provider would proceed to accept assignment — Complaint dismissed without prejudice
APEX PAIN MANAGEMENT CENTER, (As Assignee of Cepheon Baldwin), Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Small Claims Division. Case No. 03-13193-SC, Division K. October 24, 2003. Eric R. Myers, Judge. Counsel: Timothy A. Patrick. Gale L. Young, Gale L. Young, P.A., Tampa.
ORDER ON DEFENDANT’S MOTION TO DISMISS
THIS CAUSE came on to be heard before this Court on September 23, 2003, upon Defendant’s Motion To Dismiss, and the Court having heard arguments of counsel and being otherwise duly advised in the premises, it is hereby
ORDERED AND ADJUDGED that Defendant’s Motion To Dismiss is GRANTED, without prejudice. Plaintiff’s ore tenus Motion To Amend its Complaint is DENIED. The Court finds that the general allegations of material facts contained in Plaintiff’s Complaint are inconsistent with the facts revealed by the Exhibit attached to the Complaint, thereby neutralizing the allegations in the Complaint. See, Kent Electric Company vs. Jacksonville Electric Authority, 395 So.2d 277 (Fla. 1st DCA 1981). The Court finds that the patient’s signature contained within the purported Assignment of Benefits, attached as Exhibit A to Plaintiff’s Complaint, appears to be a signature other than that of Cepheon Baldwin, and is the same signature contained in the portion of the form where the medical provider would proceed to accept the assignment. Plaintiff’s Complaint fails to state a cause of action as assignee of Cepheon Baldwin against Progressive Express Insurance Company and therefore Plaintiff’s Complaint is dismissed without prejudice.
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