13 Fla. L. Weekly Supp. 533b
Insurance — Personal injury protection — Standing — Assignment — Dispute between insured and insurer — Where insured assigned benefits to medical provider prior to insured’s initiation of suit against insurer and did not obtain reassignment of benefits from provider until after suit was commenced, insured lacked standing at time suit was brought — Where there is nothing in record to indicate that insured requested or attempted to amend complaint to cure standing defect prior to dismissal for lack of standing, dismissal was proper — Issue of whether trial court abused discretion in dismissing case without explicitly granting leave to amend is not preserved for appellate review where insured did not raise argument in lower court or seek to amend complaint below — Where insurer filed motion to amend affirmative defenses, amended defenses to raise lack of standing, filed motion for summary judgment on standing issue and waited 15 months for hearing, and insured did not move to amend complaint or file affidavit in opposition to motion for summary judgment, trial court did not elevate form over substance or permit use of “gotcha” tactics in dismissing case for lack of standing — Attorney’s fees — Appellate — Justiciable issues — Because case raised justiciable issue of law as to whether lack of standing at initiation of claim can be cured by acquiring standing later, insurer’s motion for appellate attorney’s fees is denied
CARLA D. MORGAN, Appellant, v. WARNER INSURANCE COMPANY, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA1-04-57. L.C. Case No. CCO-01-5476. September 21, 2005. Appeal from County Court for Orange County, C. Jeffery Arnold, Judge. Counsel: Roy D. Wasson, Annabel C. Majewski, Wasson & Associates, Miami; and Phares M. Heindl, Altamonte Springs, for Appellant. Walter A. Ketcham, Jr. and Ramon Vazquez, Grower, Ketcham, Rutherford, Bronson, Eide & Telan, P.A., Orlando, for Appellee.
(Before DAWSON, COHEN, and LAUTEN, JJ.)
FINAL ORDER AFFIRMING THE LOWER COURT’S ORDER
(PER CURIAM.) Appellant Carla Morgan (“Morgan”) seeks review of a Final Judgment entered by the lower court on August 31, 2004, in favor of Appellee Warner Insurance Company (“Warner”). We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c). We dispense with oral argument pursuant to Florida Rule of Appellate Procedure 9.320.
Factual and Procedural Background
On February 6, 1999, Morgan was involved in a motor vehicle accident in which she sustained personal injuries. At the time of the accident, Morgan was insured under a personal injury protection (“PIP”) policy issued by Warner. Morgan received chiropractic treatment from Fuller Chiropractic Clinic (“Clinic”) for injuries sustained related to the automobile accident.
On October 4, 2000, in return for treatment, Morgan executed an assignment of benefits, assigning all the rights and benefits of her automobile insurance policy and cause of action to the Clinic. The Clinic, as an assignee of Morgan, submitted bills to Warner for payment. Warner paid a portion of Morgan’s chiropractic bills, but terminated benefits effective April 28, 2000, based upon an Independent Medical Examination.
On April 24, 2001, Morgan filed suit against Fireman’s Fund Insurance Company (“Fireman’s Fund”) for payment of PIP benefits. On July 24, 2001, the parties filed a joint stipulation to amend the Complaint to name Warner as the correct defendant.1 On July 2, 2002, Warner became aware through discovery of the original assignment of benefits executed on October 4, 2000, by Morgan to the Clinic, and filed a motion requesting leave to amend its affirmative defenses, alleging that Morgan did not have standing to assert her cause of action against Warner as she had already assigned her PIP benefits to the Clinic.
On July 16, 2002, fifteen months into the lawsuit, Dr. Joseph Fuller (“Dr. Fuller”) of the Clinic executed a reassignment of benefits to Morgan. On November 25, 2002, the trial court granted Warner’s motion to amend its affirmative defenses.
On February 18, 2003, Warner moved for summary judgment, asserting that Morgan lacked standing to file suit against Warner as a result of the assignment of benefits to the Clinic, and that the reassignment of benefits from Dr. Fuller did not cure Morgan’s lack of standing. Morgan did not file a response opposing Warner’s Motion for Summary Judgment.
A hearing was held on the matter fifteen months later on May 17, 2004. On August 31, 2004, the trial court granted Warner’s motion for summary judgment and certified a question of great public importance2 to the Fifth District Court of Appeal. The Fifth District Court of Appeal declined to exercise appellate jurisdiction and transferred the appeal to this Court.
Standard of Review
The standard of review of a summary judgment is de novo. See Lawyers Title Ins. Corp. v. Wells, 881 So. 2d 668 (Fla. 5th DCA 2004); Dr. Phillips, Inc. v. L&W Supply Corp., 790 So. 2d 539 (Fla. 5th DCA 2001). Summary judgment is appropriate only if there is no genuine issue of material fact, and if the moving party is entitled to a judgment as a matter of law. See also Krol v. City of Orlando, 778 So. 2d 490, 491-92 (Fla. 5th DCA 2001).
Discussion
Appellant Morgan raises three primary issues in her initial and reply brief to this Court. First, whether lack of standing at the initiation of a claim can be cured by acquiring standing later. Second, whether the court below abused its discretion when it dismissed Appellant Morgan’s case without explicitly granting leave to amend. Third, whether the court below elevated form over substance and succumbed to what amounts to no more than a “Catch-22” or “gotcha” tactic, a practice disapproved of by Salcedo v. Asociacion Cubana, Inc., 368 So. 2d 1337, 1339 (Fla. 3d DCA 1979). We address these issues in turn.
The first issue is whether a party which lacked standing at the initiation of a claim can cure this defect later, in this case after summary judgment, by amending the complaint. In Florida, “[t]he determination of standing to sue concerns a court’s exercise of jurisdiction to hear and decide the cause pled by a particular party.” Rogers & Ford Const. Corp. v. Carlandia Corp., 626 So. 2d 1350, 1352 (Fla. 1993). In addition, “only the insured or the medical provider ‘owns’ the cause of action against the insurer at any one time. And the one that owns the claim must bring the action if an action is to be brought.” Oglesby v. State Farm Mut. Auto. Ins. Co., 781 So. 2d 469 (Fla. 5th DCA 2001). Finally, the law in Florida is that “[a] complainant cannot supply the want of a valid claim at the commencement of the action by the acquisition or accrual of one during the pendency of the action.” Marianna & B.R. Co. v. Maund, 56 So. 670 (Fla. 1911).
In the instant case, Appellant Morgan assigned her benefits under her insurance policy to her chiropractor prior to the initiation of this suit. In addition, Appellant Morgan did not obtain the reassignment of benefits from her chiropractor to her until after the suit had commenced. Because of this, she did not “own the claim” at the time the action was brought. Since, according to Oglesby, 781 So. 2d at 469, only the owner of the claim has standing to bring the action, Appellant Morgan lacked standing. Because she lacked standing, the trial court lacked subject matter jurisdiction to hear her unamended claim, in accordance with Rogers, 626 So. 2d at 1350, supra.
Thus, because Appellant Morgan lacked standing at the time the suit commenced, and the court lacked subject matter jurisdiction over her unamended claim, the issue becomes whether Appellant Morgan could amend her complaint to cure the defect. In Hasam Realty Corp. v. Dade County, 178 So. 2d 747, 748-49 (Fla. 3d DCA 1965), the court held:
If a plaintiff has no valid cause of action on the facts existing at the time of filing suit, the defect cannot ordinarily be remedied by the accrual of one while the suit is pending. . . . We do not find that this rule has been changed by the Rules of Civil Procedure which provide for amended or supplemental pleadings.
The Fifth District Court of Appeal has commented favorably on this approach, while carving out an exception for complaints which are amended prior to the tolling of the statute of limitations and prior to dismissal of the complaint. Cazares v. Church of Scientology of California, Inc., 444 So. 2d 442 (Fla. 5th DCA 1984). In Cazares, the court reasoned that it is inefficient to dismiss an amended case when it could simply be refiled without modification immediately following the dismissal. In the present case, there is nothing in the record to show that Appellant Morgan requested or attempted to amend her complaint prior to its dismissal for lack of standing. Because of this, Appellant Morgan does not meet the necessary exception under Cazares of a case being amended prior to dismissal. We therefore find that the trial court’s dismissal for lack of standing was proper.
The second issue is whether the trial court abused its discretion when it dismissed Appellant Morgan’s case without explicitly granting leave to amend. The rule in Florida is that the granting or denial of a motion to amend the complaint after summary judgment rests in the “sound judicial discretion” of the trial judge. Roberts v. Braynon, 90 So. 2d 623 (Fla. 1956). However, since Appellant Morgan did not raise this argument in the lower court or seek to amend her complaint below, the issue has not been preserved for appellate review. See Paradyne Corp. v. State, Dept. of Transportation, 528 So. 2d 921 (Fla. 1st DCA 1988) (holding that the appellate court will not address issues raised for the first time on appeal); Dept. of Highway Safety and Motor Vehicles v. Pitts, 815 So. 2d 738 (Fla. 1st DCA 2002).
The third and final issue is whether the court below elevated form over substance in allowing Appellee Warner to utilize “hyper-technical” or “gotcha” tactics in its pleadings. Appellant Morgan cites to Salcedo, 368 So. 2d at 1339, a case in which defendants sought to be transferred from court to mediation and then, once they were in mediation, pleaded that the transfer was improper and that the case should therefore be dismissed. In overturning the lower court, the Third District Court of Appeal noted that as a matter of policy, such “gotcha” tactics cannot be allowed to succeed.
In the present case, Appellee Warner filed consistent pleadings; filed a motion to amend its affirmative defenses; amended its affirmative defenses to include lack of standing; and waited fifteen months for a hearing. Additionally, Appellant Morgan never moved to amend her complaint in the trial court, nor did she file any affidavits in opposition to the Motion for Summary Judgment. Indeed, she appears to complain about her inability to amend her complaint for the first time on appeal. On the other hand, Appellee Warner raised lack of standing timely, moved to amend its affirmative defenses, and filed a Motion for Summary Judgment on the issue of standing.
Lastly, there is nothing in the record to indicate the use of the type of improper “gotcha” tactics which were disapproved of in Salcedo. Standing is an essential component of a court’s subject matter jurisdiction (see Rogers, 626 So. 2d at 1350, supra), and therefore, should not be classified as a “hyper-technical” or esoteric issue. Therefore, this Court finds that “the elevation of form over substance” did not occur, and therefore, is not a basis on which to overturn the trial court’s decision in this case.
Appellate Attorney’s Fees
Appellee Warner has filed a timely motion seeking an award of appellate attorney’s fees pursuant to section 57.105, Florida Statutes. In order to warrant an award of attorney’s fees pursuant to section 57.105(1), there must be a total or absolute lack of justiciable issues of law or fact which is tantamount to a finding that the underlying action is frivolous or completely untenable. Weatherby Assoc., Inc. v. Ballack, 783 So. 2d 1138 (Fla. 4th DCA 2001). Even if part of a complaint is frivolous, an award of attorney’s fees is inappropriate where some justiciable issues are raised. Muckenfuss v. Deltona Corp., 508 So. 2d 340 (Fla. 1987). In this case, there was a justiciable issue of law raised as to whether lack of standing at the initiation of a claim can be cured by acquiring standing later. Therefore, Appellee Warner’s motion for appellate attorney’s fees pursuant to section 57.105(1), Florida Statutes, is DENIED.
Based upon the foregoing, it is hereby ORDERED AND ADJUDGED that the trial court’s Final Order and Summary Judgment entered on August 31, 2004, is AFFIRMED.
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1Warner is one of Fireman’s Fund’s affiliates.
2Morgan certified the following question to the Fifth District Court of Appeal:
Whether an insured, who assigns all rights to PIP benefits to a health care provider prior to filing suit against the insurer and subsequently files suit for PIP benefits against the insurer, can cure the lack of standing to file suit by way of revocation or reassignment of PIP benefits from the health care provider to the insured after suit has been filed or by payment or partial payment of the medical bill by the insured?
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