12 Fla. L. Weekly Supp. 73b
Attorney’s fees — Insurance — Personal injury protection — Noncompliance with fictitious name statute — Insurer’s request for attorney’s fees based on medical provider’s failure to comply with fictitious name statute is denied — Failure of provider to comply with statute may not have had any effect on outcome of case and its voluntary dismissal, and insurer has failed to meet burden to show how it was aggrieved by provider’s failure to give appropriate notice of real party in interest
WISE DIAGNOSTIC SOLUTIONS (as assignee of Gloria Rivers), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 2nd Judicial Circuit in and for Leon County. Case No. 03-6921 SC. October 13, 2004. Augustus D. Aikens, Jr. Counsel: Vincent Gallagher, The Gallagher Law Firm, Jacksonville. Elizabeth Andrews, Tampa.
ORDER ON DEFENDANT’S MOTION FOR ATTORNEY’S FEES
THIS MATTER came before this Court for hearing upon Defendant’s, State Farm Mutual Automobile Insurance Company (hereinafter “State Farm”), Motion for an Attorney’s Fees Award, and this Court having heard argument of counsel for the parties and being otherwise advised in the premises, it is thereupon
ORDERED and ADJUDGED as follows:
1. Defendant, State Farm, served a Motion for Attorney’s Fee under Florida Statutes, Section 865.09 as a result of Plaintiff’s failure to properly register its fictitious name until April 5, 2004. Therefore, State Farm correctly states the majority of the litigation of this case occurred during a time period when Plaintiff was not a properly registered fictitious name.
2. This Small Claims matter was initiated by Plaintiff’s Statement of Claim which was filed on October 14, 2003 and continued until Plaintiff filed a voluntary dismissal on July 14, 2004.
3. Section 865.09(3), Florida Statutes prohibits a business from engaging in business “under a fictitious name until the business files with the Department of State,” as created by Section 20.10, Florida Statutes. This act, known as the “Fictitious Name Act” provides:
(3) Registration — A person may not engage in business under a fictitious name unless the person first registers the name with the division by filing a sworn statement listing:
(a) The name to be registered.
(b) The mailing address of the business.
4. Division is further clarified in Section 865.09(2)(c) to mean:
“Division means the Division of Corporations of the Department of State.”
5. If a business fails to comply with the registration provision of the Fictitious Name Act, the business is barred from suing in Florida courts until the business complies with the registration provision of the Act. Section 865.09(9)(a), Florida Statutes provides:
(9)Penalties —
(a) If a business fails to comply with this section, the business, it 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.
6. Section 865.09(b), Florida Statutes authorizes the court to award “a party aggrieved by a noncomplying business” an amount determined by the Court to be a “reasonable attorney’s fees and court cost necessitated by the noncomplying business.”
7. As the Florida Supreme Court held in Carlile v. Game and Fresh Water Fish Commission, 354 So.2d 362, 364 (Fla. 1977), statutes in derogation of common law must be strictly construed. Courts will not infer that such a statute was intended to make any alteration other than was specified and plainly pronounced. See also Robinson & St. John Advertising and Public Relations, Inc. v. Lane, 557 So.2d 908 (Fla. 1st DCA 1990).
8. The purpose of the fictitious name statute is to provide notice to one dealing with a business of the real party in interest. Jackson v. Jones, 423 So.2d 972, 973 (Fla. 4th DCA 1982), review denied, 436 So.2d 99 (Fla. 1983). Until the party instituting the action complies with the statute, the action will be abated. Id.; see CorGal Builders, Inc. v. Southard, 136 So.2d 244, 246 (Fla. 3d DCA 1962). However, compliance with the statutes may be waived. Id.; see also Clifford Ragsdale, Inc. v. Morganti, Inc., 359 So.2d 1321, 1322 (Fla. 4th DCA), cert. denied 362 So.2d 1051 (Fla. 1978). [I]n seeking to rely on plaintiff’s noncompliance, it was incumbent on defendants to call the noncompliance with the statute to the trial court’s attention no later than the filing of their answer.” Southard, 136 So.2d at 246. See also Roth v. Nautical Engineering Corp., Marina 84, Inc. and Schoell, 654 So.2d 978 (Fla. 4th DCA 1995).
9. In this case, Defendant, State Farm, argues it is entitled to recover attorney’s fees pursuant to Section 865.09(9)(b), and “given the Plaintiff’s July 14, 2004 Voluntary Dismissal of this lawsuit.” Defendant also argues it has been aggrieved by having to defend this lawsuit. The failure of the Plaintiff to comply with the statute may not have had any effect upon the outcome of this case or its voluntary dismissal. See Chaikin v. Skowick, 201 So.2d 588 (Fla. 3rd DCA 1967). It is State Farm’s burden to show how it was aggrieved by Plaintiff’s failure to give appropriate notice of the real party in interest. Without more, Defendant fails to demonstrate an entitlement to attorney fees. Accordingly, it is
ORDERED and ADJUDGED that Defendant’s request for attorney’s fees is DENIED.
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