12 Fla. L. Weekly Supp. 945a
Insurance — Personal injury protection — Standing — Assignment — Post-suit assignment — Error to enter summary judgment finding medical provider lacks standing because there was no equitable or written assignment at time suit was filed where, by amending complaint to attach assignment executed by insured after suit was filed, provider was able to demonstrate that genuine issue of material fact existed as to whether provider had standing to sue — Provider can perform condition precedent to filing of complaint after complaint is filed provided provider amends complaint to allege condition within time allowed by statute of limitations — Further, insurer’s opinion that it is not obligated to pay any PIP benefits is incorrect since insured who has complied with all obligations under policy has right to benefits
QUASHED. 30 Fla. L. Weekly D2622b
MCGRATH COMMUNITY CHIROPRACTIC f/k/a NAPLES COMMUNITY CHIROPRACTIC, As assignee of ABNER JOSEPH, Appellant, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellee. Circuit Court, 20th Judicial Circuit (Appellate) in and for Lee County. Case No. 03-43 AP. L.C. Case No. 01-2333 SP. February 22, 2005. Appeal from the County Court for Lee County; John W. Dommerich, Judge. Counsel: Jack C. Morgan, III, Fort Myers, for Appellant. Valeria Hendricks, Tampa, for Appellee.
Reversed.
(WINESETT and MONACO, JJ., concur.)
McGrath Chiropractic (hereinafter McGrath), the plaintiff below, appeals the trial court’s order granting summary disposition in favor of Progressive Insurance (hereinafter Progressive). For the reasons set forth below, we reverse the trial court’s ruling.
According to the record on appeal, Abner Joseph (hereinafter Joseph) was injured in a motor vehicle accident on October 1, 1999. At the time, he owned an automobile insurance policy issued by Progressive that included personal injury protection (PIP) benefits. Joseph received treatment for his accident related injuries from McGrath.
On May 29, 2001, McGrath filed a Statement of Claim for PIP benefits as Joseph’s assignee. Progressive responded by asserting that McGrath lacked standing to sue because it could not present a written assignment of benefits form executed by Joseph. On January 16, 2002, McGrath amended its complaint in order to attach an assignment of benefits form signed by Joseph on January 8, 2002. McGrath also filed an Affidavit signed by Joseph, which stated that at the time he began receiving treatments from McGrath, he intended to assign his benefits under the Progressive policy to McGrath.
Progressive motioned for summary judgment and a hearing was held on August 25, 2003. The trial court found that there was no assignment of benefits from Joseph to McGrath, either written or equitable, in existence at the time McGrath filed suit in May of 2001. It further held that McGrath could not assert standing based on an assignment of benefits form that was executed after the original complaint was filed. The trial court granted Progressive’s motion and dismissed the suit for lack of subject matter jurisdiction.
On review, an appellate court reviews a trial court’s order granting a motion for summary judgment de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000). Florida Rule of Civil Procedure 1.510(c) states “[t]he judgment sought shall be rendered forthwith if the pleadings, depositions . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The burden is on the moving party to conclusively prove that no genuine issue of material fact exists. Dade County School Board v. Radio Station WQBA, 731 So. 2d 638 (Fla. 1999). Furthermore, an “opposing affidavit need only raise a material issue of fact to survive the motion. . . . All inferences, doubts, and conclusions must be construed in favor of the party opposing summary judgment.” Smith v. Harr, 571 So. 2d 575, 577 (Fla. 1st DCA 1990).
In the instant case, by amending its complaint to attach a written assignment of benefits executed by Joseph, McGrath was able to demonstrate that a genuine issue of material fact existed as to whether it had standing to sue Progressive. The assignment is considered part of the pleading for all purposes pursuant to Fla. R. Civ. P. 1.130(d). Furthermore, Fla. R. Civ. P. 1.190(c) states that an amended complaint relates back to the date of the original complaint. A plaintiff can perform a condition precedent to the filing of a complaint after the complaint is filed provided the plaintiff amends the complaint to allege the condition within the time allowed by the statute of limitations. See Holding Electric, Inc. v. Roberts, 530 So. 2d 301 (Fla. 1988).
Finally, the Court notes that Progressive’s arguments indicate that it is of the opinion that it is not obligated to pay any PIP benefits in this case. This assumption, however, is incorrect. Under Florida law, an insured has a right to be paid PIP benefits so long as he or she has complied with all of the obligations imposed under the insurance agreement. Accordingly, the trial court’s decision is reversed and remanded for further consideration. (REESE, J., dissents without opinion.)
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