12 Fla. L. Weekly Supp. 164b
Insurance — Personal injury protection — Standing — Assignment of benefits in name of physician in individual capacity does not create standing for plaintiff conducting business under fictitious name — Suit cannot be maintained by fictitious entity where entity is not registered as required by section 865.09 and has not provided any evidence of exemption from registration
DR. THOMAS J. COWELL, D.C., P.A./COWELL CHIROPRACTIC CENTER AS ASSIGNEE OF ROBERTO SALAMONE, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 04007195 COCE 51. November 9, 2004. Martin R. Dishowitz, Judge. Counsel: Jose Pete Font. Cynthia Simpson.
FINAL SUMMARY JUDGMENT FOR DEFENDANT PROGRESSIVE EXPRESS INSURANCE COMPANY
THIS CAUSE having come before the Court for hearing on October 11, 2004, on Defendant Progressive Express Insurance Company’s Motion for Final Summary Judgment, and the Court having reviewed the file, the Defendant’s motion, heard arguments of counsel, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED:
Nature of the Case
1. The Plaintiff, Dr. Thomas J. Cowell, D.C., P.A./Cowell Chiropractic Center (a/a/o Roberto Salamone), brought this action seeking recovery of personal injury protection (“PIP”) benefits under section 627.736 of the Florida Statutes.
2. Progressive moved for summary judgment, asserting that Dr. Thomas J. Cowell, D.C., P.A./Cowell Chiropractic Center (a/a/o Roberto Salamone) was not entitled to maintain the cause of action against the Defendant on the following three issues:
(I.) WHETHER THE LANGUAGE CONTAINED IN THE ASSIGNMENT OF BENEFITS THAT WAS BEING RELIED UPON FOR STANDING BY THE PLAINTIFF WAS SUFFICIENT TO CREATE A FULL ASSIGNMENT?
(II.) WHETHER THE NAMED PLAINTIFF IN A COMPLAINT CAN MAINTAIN A CAUSE OF ACTION AGAINST AN INSURER FOR P.I.P. BENEFITS WHEN THE ASSIGNMENT OF BENEFITS THAT IS BEING RELIED UPON BY THE PLAINTIFF DOES NOT NAME THE PLAINTIFF AS THE ASSIGNEE?
(III.) WHETHER AN ENTITY THAT CONDUCTS BUSINESS UNDER A FICTITIOUS NAME CAN MAINTAIN A CAUSE OF AGAINST AN INSURER FOR P.I.P. BENEFITS WHEN THE FICTITIOUS NAME THAT IS USED IS NOT REGISTERED AS REQUIRED BY FLA. STAT. § 865.09?
Findings of Fact
3. The facts material to Progressive’s motion for summary judgment are undisputed and established by the pleadings and depositions of record. The material facts are set forth below.
4. On or about October 30, 2002, the Defendant’s Insured, Roberto Salamone, was said to have sustained injuries in an automobile accident.
5. The Plaintiff began treating the Insured on November 5, 2002 for injuries said to have been related to the October 30, 2002 automobile accident.
6. On November 5, 2002, the Insured executed a document that was titled “ASSIGNMENT OF BENEFITS.” The assignment named Dr. Thomas Cowell as the assignee of the Insured’s benefits under the motor vehicle insurance policy with the Defendant.
7. At the time that services were rendered to the Defendant’s Insured, until the date of the Defendant’s Motion for Summary Judgment, the named Plaintiff in this suit was conducting business under the nonregistered fictitious name of Cowell Chiropractic Center.Conclusions of Law — Demand Letterpursuant to Fla. Stat. 627.736(11)
8. The Court hereby adopts the foregoing findings of fact to the extent they encompass conclusions of law or mixed findings of fact and conclusions of law.
9. [Editor’s note: Number 9 struck through on slip sheet.]
10. The named Plaintiff in the present suit, Dr. Thomas J. Cowell, D.C., P.A., could not create standing by relying on Assignment of Benefits that named Dr. Thomas J. Cowell in his individual capacity as the assignee.
11. Under Fla. Stat. § 865.09(3) “[a] person may not engage in business under a fictitious name unless the person first registers the name . . . .”
12. If a person engages in business without registering the name, under Fla. Stat § 865.09(9)(a)
the business, its members, and those interested in doing such business may not maintain any action, suit, or proceeding in any court of this state until this section is complied with. An action, suit, or proceeding may not be maintained in any court of this state by any successor or assignee of such business on any right, claim, or demand arising out of the transaction of business by such business in this state until this section has been complied with.
13. The statute creates an exemption to registration under Fla. Stat. § 865.09(7). The exemption is stated as follows:
A business formed by an attorney actively licensed to practice law in this state, by a person actively licensed by the Department of Business and Professional Regulation or the Department of Health for the purpose of practicing his or her licensed profession, or by any corporation, partnership, or other commercial entity that is actively organized or registered with the Department of State is not required to register its name pursuant to this section, unless the name under which business is to be conducted differs from the name as licensed or registered.
14. Thomas J. Cowell, D.C., P.A., is the named party in the present suit. Thus, whether Thomas J. Cowell in his individual capacity would fall under the exemption is inconsequential.
15. The Plaintiff did not provide any evidence that would indicate an exemption for registration. Accordingly, under Fla. Stat. § 865.09(9)(a) the present suit cannot be maintained.
16. Based on the above, viewing all evidence in a light most favorable to the Plaintiff, the court denies summary judgment on issue I, and grants summary judgment in favor of the Defendant on issue II, and III.Final Judgment
IT IS HEREBY ADJUDGED that Plaintiff, Dr. Thomas J. Cowell, D.C., P.A./Cowell Chiropractic Center (a/a/o Roberto Salamone), take nothing by this action and Defendant, Progressive Express Insurance Company, shall go hence without day and the Court retains jurisdiction for the purpose of determining any motion by Defendant to tax fees and costs.
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