13 Fla. L. Weekly Supp. 916b
Insurance — Personal injury protection — Standing — Medical provider/assignee has no standing to recover for bill submitted under federal tax identification number of another medical provider — Coverage — Medical expenses — Lawfully rendered services — Where provider/assignee is neither registered corporation nor registered fictitious name authorized to transact business in state, provider is not entitled to maintain cause of action and is precluded from claiming PIP benefits since services were not lawfully rendered
GARY H. WEISS, D.C., as assignee of Lee Ancell, Plaintiff, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 05-SC-3561. May 10, 2006. John Sloop, Judge. Counsel: Thomas Andrew Player, Weiss Legal Group, P.A., Maitland. Eric Biernacki, Adams & Diaco, P.A., Orlando.
REVERSED and REMANDED at 15 Fla. L. Weekly Supp. 141a
ORDER ON DEFENDANT’S MOTION FOR SUMMARY FINAL JUDGMENT AND MOTION FOR PROTECTIVE ORDER
This CAUSE having come before this Court on Defendant’s Motion for Summary Final Judgment and Motion for Protective Order and the Court having heard the argument of counsel, and being otherwise fully advised in the premises, finds as follows:
1. Plaintiff filed a PIP suit, as assignee of Lee Ancell, against Defendant for a denied medical bill for treatment rendered to Lee Ancell on July 26, 2005, as a result of injuries he allegedly sustained in an automobile accident which occurred on February 5, 2005.
2. Plaintiff alleges in Paragraph 8 of its Complaint that Lee Ancell executed an assignment of benefits and cause of action to Plaintiff.
3. The document attached to the complaint, which Plaintiff alleges confers standing upon it, is executed in favor of Gary H. Weiss, D.C., DABFE.
4. However, the real party in interest for date of service July 26, 2005 is Comprehensive Consultants Group, Inc., not Gary H. Weiss, D.C., as evidenced by the Health Insurance Claim Form (HCFA) Plaintiff submitted to Defendant for said date of service. Specifically, the Tax Identification Number in Box 25 on said HCFA form is actually registered to Comprehensive Consultants Group, Inc.
5. According to Florida law, “the one that owns the claim must bring the action if an action is to be brought.” Oglesby v. State Farm Mutual Automobile Ins. Co., 781 So. 2d 469, 470 (Fla. 5th DCA 2001).
6. Since the bill at issue was submitted under Comprehensive Consultants Group’s Tax Identification Number, Plaintiff is not the real party in interest in this suit and therefore lacks standing to recover for said bill. See Vincent Preziosi, D.C., a/a/o Dennis M. Anderson, v. Progressive Express Insurance Co., 12 Fla. L. Weekly Supp. 571a (County Court, 9th Judicial Cir., March 8, 2005).
7. In any cause of action, a Plaintiff must establish standing before the court has any authority to entertain the Plaintiff’s action. Standing cannot be created by waiver, acquiescence, agreement of the parties, by error or inadvertence of the parties or their counsel, or by exercise of power by the court. See State ex rel Caraker v. Amidon, 68 So. 2d 403 (Fla. 1953); See also, Polk County v. Sofka, 702 So. 2d 1243 (Fla. 1997); Marion Correctional Institution v. Kriegel, 522 So. 2d 45 (Fla. 5th DCA 1998) rev. denied 531 So. 2d 1354 (Fla. 1988) citing Wilds v. Permenter, 228 So. 2d 408 (Fla. 4th DCA 1969).
8. As standing is equated with subject matter jurisdiction, Plaintiff in this case, lacks standing to assert a claim for personal injury protection benefits. See Askew v. Hold the Bulkhead Save Our Bays, Inc., 269 So.2d 696, 698 (Fla. 2d DCA 1972); See also Silver Star Citizens’ Committee v. City Council of Orlando, 194 So.2d 681, 682 (Fla. 4th DCA 1967). Accordingly, this Court does not have subject matter jurisdiction. See Hartford Insurance Company of the South East vs. St. Mary’s Hospital, Inc., 771 So. 2d 1210 (Fla. 4th DCA 2000); See also Medical Rehab and Therapy Center d/b/a Pain Corrective Center of Brandon, Inc., as assignee of Shannon Patterson, Appellee, 8 Fla. L. Weekly Supp. 605 (13th Judicial Circuit (Appellate)).
9. Additionally, Plaintiff is neither a registered corporation nor a registered fictitious name authorized to transact business in the state of Florida.
10. As such, Plaintiff has failed to comply with the Fictitious Name Act, §865.09, Florida Statutes, in conducting this lawsuit without registering as a fictitious name. Consequently, “Plaintiff is not entitled to maintain this cause of action against Defendant, and is precluded from claiming entitlement to PIP benefits under Fla. Stat. §627.736(5)(a) since the services were not lawfully rendered.” Sun Coast Health Care Center #1, Inc. (Pamela Segal) v. Progressive Express Insurance Co., 12 Fla. L. Weekly Supp. 803c (County Court, 17th Judicial Cir., May 3, 2005).
Accordingly, it is hereby
ORDERED and ADJUDGED that Defendant’s Motion for Summary Final Judgment is GRANTED; it is further
ORDERED and ADJUDGED that Plaintiff shall take nothing by this action and Defendant shall go hence without day; it is further
ORDERED and ADJUDGED that the Court shall reserve jurisdiction as to Defendant’s attorney’s fees and taxable costs.
