11 Fla. L. Weekly Supp. 821a
Insurance — Personal injury protection — Standing — Assignment — Validity — Medical provider violated section 865.09(9)(a) by bringing suit in name not registered as fictitious name in state — Assignment in favor of fictitious name not registered in state at time of execution of assignment is invalid — Fraud — Claim brought in unregistered fictitious name of medical provider but with federal tax identification number belonging to provider’s corporate parent was presented with specific intent to mislead or deceive insurer — Motion to dismiss granted with leave to amend complaint
WISE DIAGNOSTIC SOLUTIONS, (as assignee of Allen McAnally), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 2nd Judicial Circuit in and for Leon County. Case No. 2003 CC 003110. June 7, 2004. Judith W. Hawkins, Judge. Counsel: Jerry Sessions, for Plaintiff. Robert A. Kingsford, Kingsford & Rock, P.A., for Defendant.
ORDER ON DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT
THIS CAUSE having come to be heard before the Honorable Judith Hawkins on April 22, 2004 on Defendant’s April 13, 2004 Motion for Involuntary Dismissal and the Court having considered the record, heard argument of counsel and being otherwise duly advised in the premises, it is ORDERED AND ADJUDGED as follows:
1. Defendant sought an involuntary dismissal of Plaintiff’s cause of action or an alternative dismissal of Plaintiff’s case for failing to state a cause of action on two primary grounds: (1) Plaintiff had failed to comply with the Fictitious Name Act, Section 865.09, Florida Statutes in conducting this lawsuit without registering a fictitious name and; (2) That the Assignment which gives Plaintiff standing to sue in this case in behalf of State Farm’s insured, Allen McAnally, was invalid because it was in the name of Wise Diagnostic Solutions at the time it was executed. On these issues, the Court makes the following factual findings:
(a) Plaintiff has sought a recovery of No-Fault Benefits from State Farm for the performance of functional capacity testing performed on Allen McAnally on January 9, 2002.
(b) The actual testing was performed by Missy Calvert Sherrer in behalf of Wise Diagnostic Solutions.
(c) Wise Diagnostic Solutions prepared a Health Insurance Claim Form and submitted that Health Insurance Claim Form to State Farm for payment for the services provided by Ms. Sherrer in behalf of WISE.
(d) The Health Insurance Claim Form in Box 33 identifies the billing entity as Wise Diagnostic Solutions, Post Office Box 17809, Jacksonville, Florida 32245 and in Box 31 identifies the provider as Wise Diagnostic Sol without any signature. The Tax Identification Number listed on the Health Insurance Claim Form is 593706650. Counsel for Defendant represented to the Court that this Tax Identification Number is registered to Jax Medical Services, Inc., and attached to this Order is a 2002 Uniform Business Report dated January 18, 2002 verifying that representation.
(e) The parties agreed that Jax Medical Services, Inc. has been described as the corporate parent of Wise Diagnostic Solutions.
(f) Attached to Plaintiff’s Complaint is a document titled Insurance Assignment and Instruction for Direct Payment to Provider, which refers to the provider of the functional capacity testing at issue as Wise Diagnostic Solutions and which purports to assign the rights and benefits under Allen McAnally’s policy with State Farm to Wise Diagnostic Solutions. The date on the Assignment is January 13, 2003. It is undisputed that on that date, Wise Diagnostic Solutions was not a registered fictitious name in the State of Florida.
(g) Counsel for Plaintiff represented to the Court that Wise Diagnostic Solutions became a registered fictitious name on April 5, 2004 and has subsequently filed a Notice of Fictitious Name Registration which verifies that representation.
2. Based upon these factual findings, the Court makes the following conclusions of law:
(a) Defendant’s Motion is not untimely as a defendant may attack a Plaintiff’s cause of action at any time under Rule 1.140(h)(2), Florida Rules of Civil Procedure and Plaintiff’s waiver argument is moot in view of Defendant’s April 19, 2004, Amended Answer and Affirmative Defenses.
(b) Plaintiff should not have brought this lawsuit in the name of Wise Diagnostic Solutions because that was not a registered fictitious name in the State of Florida until April 5, 2004. In doing so, Plaintiff violated Florida Statutes, Section 865.09(9)(a).
(c) A purported medical provider in the State of Florida cannot sue for a recovery of No-Fault Benefits in behalf of a patient unless it has a valid and enforceable Assignment of Benefits from the patient giving it the right to do so. The Assignment of Benefits signed by Allen McAnally in favor of Wise Diagnostic Solutions is invalid and unenforceable because it is not in the name of the real party in interest; i.e., Jax Medical Services, Inc. who was the corporation doing business in the unregistered name of Wise Diagnostic Solutions at the time Allen McAnally signed the Assignment of Benefits. At that time, Jax Medical Services, Inc. had the capacity to enter into contracts but Wise Diagnostic Solutions did not.
(d) Subsection (9)(b) of Section 865.09, Florida Statutes, sets forth that “the failure of a business to comply with this Section does not impair the validity of any contract . . .” This language on first impression would seem to save the Plaintiff’s Assignment validity but a closer analysis in conjunction with interpreting case law indicates that this Subsection applies to the actual business or corporation that failed to register, not the unregistered fictitious name. See Medsen Development, Inc. v. Bryant, 376 So.2d 423 (Fla. 3rd DCA 1979). The Medsen case stands for the proposition that non-registration under the Fictitious Name Act can be used and is relevant to a defense based upon a violation of the Act when the particular acts at issue occurred while those acts were being taken in the appropriate corporate or individual name. In this case, the Assignment was not in the appropriate name of Jax Medical Services, Inc., it was in the inappropriate, non-registered name of Wise Diagnostic Solutions. The Medsen Court said “There must be a violation of the statute in the particular contract or transaction” for the statute to be applicable. The particular contract giving standing to sue in this case, the Assignment, contains a violation of the Fictitious Name Act.
(e) The Court finds further support for its ruling herein in the case of New Hampshire Indemnity Company v. Equinox Business Credit Corp., 10 Fla. L. Weekly Supp. 172a (Circuit Court, 9th Judicial Circuit, Orange County, 2002) [where the Court stated “A healthcare provider who has used an unregistered fictitious name in violation of Florida Statute, Section 865.09 in Boxes 31, 32 or 33 of the HCFA, or on the Assignment of Benefits, cannot recover benefits under Florida Statutes, Section 627.736(5).
(f) The Health Insurance Claim Form submitted by the Plaintiff is deceptive and misleading because it suggests from a clear reading that the Federal Tax Identification Number 593706650 belongs to Wise Diagnostic Solutions when it does not. Jax Medical Services, Inc. should have either appropriately registered its fictitious name before issuing the Health Insurance Claim Form at issue in this case or should have billed in the name of Jax Medical Services, Inc.
(g) Insurance fraud in this state has been defined in pertinent part as follows:
(1)(a) A person commits insurance fraud . . .if that person with the intent to injure, defraud, or deceive any insurer:
1. presents or causes to be presented any written or oral statement as a part of, or in support of, a claim for payment or other benefits pursuant to an insurance policy . . . , knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim;
Section 817.234, Florida Statutes.
The Plaintiff’s Health Insurance Claim Form constitutes a written statement of a claim for No-Fault Insurance Benefits from State Farm. The representation on that form that Wise Diagnostic Solutions was the company or business performing the service was false and misleading information of a material nature. By presenting the Health Insurance Claim Form in the name of Wise Diagnostic Solutions, but with a Federal Tax Identification Number belonging to Jax Medical Services, Inc., the Court specifically finds the specific intent to mislead or deceive State Farm because the name did not match the number.
3. As a result of these findings of fact and conclusions of law, the Court grants Defendant’s Motion but does so without prejudice for Plaintiff to amend its Complaint to appropriately state a cause of action and overcome the above-referenced issues.
4. Plaintiff shall have forty-five (45) days from the date of this Order in which to file an Amended Complaint. If Plaintiff chooses not to file an Amended Complaint, then this case shall be deemed dismissed with prejudice with the Court reserving jurisdiction to consider Defendant’s recoverable fees and costs. If Plaintiff files an Amended Complaint, Defendant shall have twenty (20) days after service of the Amended Complaint in which to serve its response to the Amended Complaint.
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