15 Fla. L. Weekly Supp. 141a
Insurance — Personal injury protection — Standing — Where suit was filed in name of treating physician, and physician’s name is on every relevant document in suit, but tax identification number provided on claim form pertains to non-party corporation owned by physician and his wife, physician has standing to enforce claim either as individual or as representative for corporation — Error to enter summary judgment for insurer
GARY H. WEISS, D.C., a/a/o Lee Ancell, Appellant, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, Appellee. Circuit Court, 18th Judicial Circuit (Appellate) in and for Seminole County. Case No. 06-56-AP. November 14, 2007. Appeal from the County Court for Seminole County, Honorable John R. Sloop, County Court Judge. Counsel: Thomas A. Player, Weiss Legal Group, P.A., Maitland; and Glenn M. Klausman, Altamonte Springs, for Appellant. Eric Biernacki, Orlando; and Michael C. Clarke, Tampa, for Appellee.
[Editor’s note: County court order published at 13 Fla. L. Weekly Supp. 916b]
(GALLUZZO, J., J.) On or about February 5, 2005, Lee Ancell (“Ancell”) was involved in a motor vehicle accident in which he sustained personal injury. Ancell was covered at the time of the accident by an automobile insurance policy issued by Appellee Progressive American Insurance Company (“Progressive”), which provided PIP benefits. Ancell executed an assignment of benefits, assigning his right to payment of benefits to Appellant Gary H. Weiss, D.C. (“Weiss”). Ancell incurred charges for $400.00 for health care services provided by Weiss. Progressive received notice of the covered loss, and Weiss made demand for no-fault benefits for the treatment provided. Progressive unreasonably denied or otherwise failed to pay these charges, maintaining that the services were not medically necessary.
Each relevant document, including this lawsuit, bears the name of Gary H. Weiss, D.C., individually. Progressive moved for summary judgment solely on the argument that the tax identification number in Box 25 of the claim form controlled standing and that the entity with that TIN is the only one with standing to pursue this cause of action. The non-party corporation indicated by the TIN on the claim form is Comprehensive Consultants Group, Inc. (“Comprehensive”), a closely-held corporation owned by Gary H. Weiss and his wife. Progressive maintained that Comprehensive is the real party in interest and that therefore Weiss did not have standing to bring this claim.
Weiss states that the subject services were rendered by Weiss, individually; the acknowledgement and disclosure form were signed by Weiss, and the claim form listed Weiss as the provider of the services. In addition, Ancell assigned his benefits to Weiss. Progressive’s EOB form was addressed to Weiss. The pre-suit demand letter was sent by Weiss, and Progressive’s response was addressed to Weiss. Finally, this action was brought by Weiss.
The trial court granted Progressive’s Motion for Final Summary Judgment. Weiss timely filed a Motion for Reconsideration, which the trial court denied. Weiss appeals from this order.
The standard of review for a final order granting a motion for summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000).
Rule 1.210(a), Fla. R. Civ. Pr. states that “[e]very action may be prosecuted in the name of the real party in interest.” This rule permits, but does not require, an action to be filed in the name of the party having a substantive right to enforce the claim. A representative party, such as an agent, can sue in his own name on behalf of a principal. See Kumar Corp. v. Nopal Lines, Ltd., 462 So.2d 1178 (Fla. 3d DCA 1985). Weiss is an owner of and agent for Comprehensive Consultants Group, Inc. Therefore, Weiss has standing to sue Progressive in his own name.
At oral argument, Progressive cited Mobile Diagnostics a/a/o Susan Shepard v. Geico Indemnity, 05-126-AP [13 Fla. L. Weekly Supp. 797a], decided by this Court in May of 2006. In Mobile Diagnostics, during discovery, it came to the attention of MDC’s attorney that there had been a scrivener’s error in the caption of MDC’s complaint, which erroneously omitted part of MDC’s name from the caption. Coincidentally, the resulting name of “Mobile Diagnostics, Inc.” is a different corporation that was not a party to the suit. This Court noted that Geico’s very own evidence established that they had no illusions as to the identity of the proper party plaintiff, and instead, Geico went to great lengths to avoid a decision on the merits of the case.
There is no doubt here that Progressive is aware of the proper party plaintiff. The gravamen of Progressive’s position is that Weiss listed a TIN number for Comprehensive, rather than himself individually, on the claim form. Progressive is now attempting to avoid a decision on the merits of their failure to pay by maintaining that Weiss does not have standing to proceed with this claim.
While this case is factually distinguishable from Mobile Diagnostics, the conclusion is ultimately the same. Weiss has proper standing to enforce this claim, either as an individual, or as a representative for Comprehensive. It was error for the trial court to grant summary judgment in favor of Progressive.
ACCORDINGLY the Order on Defendant’s Motion for Final Summary Judgment and Motion for Protective Order is REVERSED, and the case REMANDED for proceedings not inconsistent with this decision.
