13 Fla. L. Weekly Supp. 864a

Insurance — Personal injury protection — Standing — Assignment — Validity — Assignment to administratively dissolved corporation — Where at time clinic accepted assignments of benefits from insureds it was a corporation which had been administratively dissolved by state for failing to file annual report, and there was no evidence that acceptance of assignments was related to winding up affairs of clinic, acceptance of assignments violated section 607.1405, and assignments were nullity from beginning — Plaintiff which is active corporation that became successor in interest to dissolved clinic lacks standing to maintain PIP suits

PHYSICIAN MANAGEMENT ASSOCIATES, LLC, (as assignee of James Wiggins), Plaintiff/Appellant, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Defendant/Appellee. Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County. Case No. 05-1623, Division X. L.C. Case No. 01-CC-14185. PHYSICIAN MANAGEMENT ASSOCIATES, LLC, (as assignee of Connie Wiggins), Plaintiff/Appellant, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Defendant/Appellee. Case No. 05-1628, Division X. L.C. Case No. 01-CC-14400. February 28, 2006. An appeal of a decision of the County Court, Hillsborough County. The Honorable Daniel Gallagher presiding. Counsel: Ian M. Bieszad, Tampa, for Appellant. Robert Oxendine, Tampa, for Appellee.

(GREGORY P. HOLDER, J.) Appellant appeals decisions of the county court dismissing its complaints on the ground that it lacked standing to pursue the lawsuits. Based upon our review, we conclude that the trial court was correct to dismiss the complaint. The facts are as follows.

James Wiggins and Connie Wiggins sustained injuries in a motor vehicle accident on or about November 20, 1999. As a result of those injuries, the Wigginses sought medical treatment at Felker Clinic of Chiropractic, Inc. (hereinafter Felker Clinic) and assigned their personal injury protection (PIP) insurance benefits to Felker Clinic.

Appellee State Farm issued the subject insurance policy. Appellant Physician Management Associates, LLC, claims that it became the successor in interest to Felker Clinic and assumed Felker Clinic’s rights under the assignment.¹ The alleged transfer occurred during the time that the Felker Clinic was administratively dissolved. On or about July 10, 2001, Appellant filed separate complaints, consolidated for the purposes of this appeal, alleging that benefits were overdue. In the lawsuits, Appellant claimed that PIP benefits were overdue. From the time of the accident to the time benefits were assigned to Appellant, the Felker Clinic was a corporation which the state had administratively dissolved for failing to file an annual report. The period of the dissolution was from September 24, 1999 to January 26, 2004.

Appellee filed motions for summary judgment on January 2, 2003, alleging that Appellant Physician Management Associates lacked standing to maintain the lawsuits because its parent corporation was, by accepting the Wiggins’ assignment, conducting business in violation of state law during the period it was administratively dissolved. As a result, the assignment was a nullity from the beginning, and its transfer to Appellant was also invalid. The trial court conducted a hearing on December 29, 2004. On January 14, 2005, it entered orders dismissing both complaints. This timely appeal followed.

Appellant argues that the reinstatement of an administratively dissolved corporation relates back to and takes effect as of the effective date of the administrative dissolution, and that reinstatement allows the corporation to resume carrying on its business as if the administrative dissolution had never occurred. Appellant cites Allied Roofing Industries, Inc. v. Venegas, 862 So.2d 6 (Fla. 3d DCA 2004), in support of its contention.

Appellee contends that the assignments were void ab initio because Felker Clinic could not carry on its business activities in its administratively dissolved status, except as necessary to wind up and liquidate its business and affairs, pursuant to section 607.1421(3), Florida Statutes.

In general, the dissolution of a corporation does not “[p]revent commencement of a proceeding by or against the corporation in its corporate name,” or “[a]bate or suspend a proceeding pending by or against the corporation on the effective date of dissolution.” Section 607.1405(2)(c), (f), Florida Statutes. Levine v. Levine, 734 So.2d 1191, 1196 (Fla. 2d DCA 1999). However, the claim before us was not pending at the time the Felker Clinic was administratively dissolved; it arose after the dissolution as a result of prohibited business activity in which the Felker Clinic engaged. Therefore, we find Allied Roofing to be inapplicable to this case.

PBF of Fort Myers, Inc. v. D & K Partnership, 890 So.2d 384 (Fla. 2d DCA 2004) is persuasive here. In PBF, the second district opined that “where claims accrued prior to administrative dissolution and were part of process of winding up its activity,” an administratively dissolved corporation is entitled to maintain a counterclaim for breach of lease against a lessor. This suggests the corollary that if a claim accrues after a corporation’s administrative dissolution in a context which did not involve the winding up of its affairs, the corporation may not maintain a legal claim. This is supported by dicta in Levine, cited by PBF, in which the second district wrote:

Arguably, however, section 607.1622(8) would preclude an administratively dissolved corporation’s suit on a cause of action accruing after its dissolution. But this would be the case only if the corporation was administratively dissolved for failing to file its annual report.(Emphasissupplied.)

Levine, at 1197.

Section 607.1405(1), Florida Statutes, governs the “effect of dissolution” of a corporation and states as follows:

(1) a dissolved corporation continues its corporate existence but may not carry on any business except that appropriate to wind up and liquidate its business and affairs, including:

a) collecting its assets;

b) disposing of its properties that will not be distributed in kind to its shareholder;

c) discharging or making provision for discharging liabilities;

d) distributing its remaining property among its shareholder according to their interests; and

e) doing every other act necessary to wind up and liquidate its business and affairs.

The acceptance of an assignment was an act that did not fall under (a)-(e) of section 607.1405(1), Florida Statutes, in the absence of any record basis to conclude that the acceptance of an assignment was related to winding up the affairs of the corporation. Indeed, in this context, the taking of the assignment suggests that the Felker Clinic was carrying on its regular business in contravention of section 607.1405. Were Felker Clinic the claimant in this case, based upon the foregoing statute, as well as the decisions PBF and Levine, it is clear that it would not be permitted to maintain this claim. The fact that Felker assigned its claim to an active corporation does not revive something that was void at its inception. The Felker Clinic had nothing to transfer.

It is therefore ORDERED that the decision of the trial court is AFFIRMED. Accordingly, Appellant’s motion for award of appellate attorney’s fees is DENIED. (BARBAS and ISOM, JJ., Concur.)

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¹There is no record evidence of such a transfer of interest except in Appellant’s complaint. However, that the transfer occurred appears to have been litigated by consent.

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