15 Fla. L. Weekly Supp. 1101c
Insurance — Personal injury protection — Complaint — Amendment — Motion to amend complaint to delete “Inc.” from provider’s name is granted — Insurer was not confused or misled regarding identity of medical provider by addition or omission of “Inc.” to provider’s name, and any defect in name was waived by insurer’s failure to object to defect until five years after suit was filed
DANIEL G. COHEN, D.C., dba MAURICIO CHIROPRACTIC GROUP, INC., a/a/o Luis Lozano, Plaintiff, v. UNITED AUTOMOBILE INSURANCE CO., Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2003-SC-4192, Div. 73. September 12, 2008. Deb Sammons Blechman, Judge. Counsel: Ana M. Lopez, Pendás Law Firm, Orlando, for Plaintiff. Katherine Kmiec, Luks, Santaniello, Perez, Petrillo & Gold, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TO AMEND COMPLAINT AND DENYING DEFENDANT’S MOTION TO DISMISS
In the instant case, plaintiff has identified itself variously in the Complaint, the assignment of benefits and the demand letter as either Mauricio Chiropractic Group or Mauricio Chiropractic Group, Inc. Today’s hearing involved plaintiff’s motion to amend the name on its complaint to Mauricio Chiropractic Group instead of Mauricio Chiropractic Group, Inc. Defendant seeks to dismiss the complaint due to alleged lack of conditions precedent in regard and/or lack of notice of covered loss due to the discrepancies in the name on the forms and in the complaint.
In State Farm Mutual Auto Insurance Co. v. Motion X-Ray, d/b/a Nu-Best Diagnostics, 12 Fla. L. Weekly Supp. 704a, the 9th Circuit Court in its appellate capacity dealt with similar allegations that the plaintiff had lacked standing because the assignment of benefits was to an allegedly non-existent corporation. In that case, the 9th Circuit found that the addition of “Inc.” after a claimant’s name in pleadings, resulting in an unregistered fictitious name, was a “clerical error which was later corrected on a motion to amend.” The 9th Circuit cited Emerson Realty Corp. v. Schanze, 572 So.2d 942, 944 (Fla. 5th DCA 1991) (stating that “a technical error which is patently harmless should be ignored or corrected on motion.”) This court has read cases cited by both parties, and believes that differences in the name of a plaintiff might be of sufficient substance to support a finding that a plaintiff lacks standing if, the difference in names is more than a technical error or if it causes confusion or is misleading. However, absent evidence that the difference is more than a technical error, the difference does not compel a finding that the party lacks standing.
Case law relating to compliance with the fictitious name statute is instructive. The purpose of the fictitious name statute is to provide notice to those dealing with a business of the real party in interest, and to protect the public against false identification of the character of a business, Royal Atlantic Health Spa, Inc. v. B.L.N., Inc., 677 So.2d 1385 (Fla. 4th DCA 1996). At times, a party involved in litigation will face abatement of their action until they comply with the fictitious name statute. However, the fictitious name statute is not self executing, but rather, the party seeking to obtain its benefit must call such a failure to the attention of the court no later than the filing of its answer, Jackson v. Jones, 423 So.2d 972 (Fla. 4th DCA 1983). In the Jackson case, the court held that defendant waived noncompliance with the fictitious name statute, where there was no actual confusion as to the name, address and identity of the plaintiff, and it was not until ten months had elapsed from the inception of the lawsuit that an amended answer was filed mentioning the failure to comply with the fictitious name statute for the first time.
In the case at bar, this court FINDS that the error(s) or differences cited in plaintiff’s name were harmless where there has been no pleading, evidence or argument adduced that defendant was confused or misled in relation to whom it was dealing. Further, any defect in the name was waived by failure to articulate objections to such non-compliance until five years after this suit had been filed.
WHEREFORE, the Motion to Amend Complaint is GRANTED; and
The Motion to Dismiss is DENIED.
