12 Fla. L. Weekly Supp. 669d
Insurance — Personal injury protection — Standing — Medical provider that is neither registered corporation nor registered fictitious name is precluded from maintaining suit — Complaint dismissed with leave to amend to name proper party plaintiff
PERSONAL INJURY DIAGNOSTICS, A/A/O SEAN MCDAVITT, Plaintiff, vs. PROGRESSIVE AUTO PRO INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 04-CC-18852-71. April 13, 2005. Antoinette Plogstedt, Judge. Counsel: Robert D. Bartels, Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Orlando. Karen Marcell.
ORDER
This cause having come before the Honorable Antoinette Plogstedt, on Wednesday, April 6, 2005, upon Defendant, PROGRESSIVE AUTO PRO INSURANCE COMPANY’S, Motion for Summary Judgment and Motion to Dismiss, and the Court having been fully advised in the premises, states as follows:
1. On or about January 10, 2005, Plaintiff, Personal Injury Diagnostics a/a/o Sean McDavitt, served its Complaint against Progressive Auto Pro Insurance Company.
2. On or about January 31, 2005, Defendant, Progressive Auto Pro Insurance Company, filed a Motion for Summary Judgment Based on Plaintiff’s Lack of Standing and a Motion to Dismiss.
3. The named Plaintiff in the Complaint and on the Assignment of Benefits, Personal Injury Diagnostics, is neither a registered corporation nor a registered fictitious name authorized to transact business in the state of Florida.
4. The Plaintiff contends that the correct corporate name for the Plaintiff is Personal Injury Diagnostics, Inc.
It is hereby ORDERED and ADJUDGED:
5. Defendant’s Motion to Dismiss is hereby GRANTED. Since the Plaintiff failed to comply with Florida Statute §865.09 by registering the fictitious name, Personal Injury Diagnostics, the named Plaintiff is precluded from maintaining any cause of action until it complies with Florida Statute §865.09(9).
6. Plaintiff’s Ore Tenus Motion for Leave to Amend the Complaint is hereby GRANTED. Plaintiff shall have twenty (20) days to amend the Complaint to name the proper party Plaintiff. If the Plaintiff does not file an Amended Complaint within twenty (20) days from the date of the hearing, then this case shall be dismissed without prejudice. If the Plaintiff files an Amended Complaint within twenty (20) days from the date of hearing, then the Defendant shall have twenty (20) days to respond to the Amended Complaint.
7. The Court reserves ruling at this time on Defendant’s Motion for Summary Judgment. If the Plaintiff serves an Amended Complaint, then the Court will hear arguments on Defendant’s Motion for Summary Judgment.
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