15 Fla. L. Weekly Supp. 1105a
Insurance — Personal injury protection — Standing — Assignment — Medical provider who used unregistered fictitious name on assignment cannot recover PIP benefits — Provider also lacked standing to issue demand letter
KEVIN J. YATES, D.C., P.A. D/B/A YATES CHIROPRACTIC ASSOCIATES, as assignee of Dawson Rodriguez, Plaintiff, vs. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. SCO-07-15824. September 12, 2008. Antoinette Plogstedt, Judge. Counsel: Fermin Lopez, Orlando. Neil Andrews, Adams & Diaco, P.A., Orlando.
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. On or about December 10, 2007, Plaintiff filed a PIP suit, as assignee of Dawson Rodriguez, against Defendant for reduced medical bills for various dates of service, as a result of injuries allegedly sustained in an automobile accident on January 18, 2007.
2. The Plaintiff alleged standing through an assignment of benefits that was signed by Dawson Rodriguez and executed in favor of Yates Chiropractic Associates on January 22, 2007.
3. Plaintiff issued a pre-suit demand in relation to the above referenced suit on August 10, 2007.
4. Plaintiff, Kevin J. Yates, D.C., P.A., filed the fictitious name of Yates Chiropractic Associates with the Florida Department of State, Division of Corporations, on April 3, 2008.
5. Florida Statute §865.09(9)(a) in its pertinent part states:
“If a business fails to comply with this section, the business . . .may not maintain any action, suit or proceeding in any court of this state until this section is complied with. . . .” (emphasis added)
6. The Ninth Circuit, sitting in its appellate capacity, has previously determined that, “A healthcare provider who has used an unregistered fictitious name in violation of Florida Statutes, Section 865.09. . .on the assignment of benefits, cannot recover benefits under Florida Statutes, section 627.736(5).” New Hampshire Indemnity Company v. Equinox Business Credit Corp., d/b/a Equinox Factors; Wellness Concepts, Inc.; Wellness Concepts, Inc.; Jeffrey Cullers d/b/a Atlantic Chiropractors & Massage; Jeffrey Cullers and/or Bruce Maring, D.C. d/b/a Injury Care of Ormond Beach; and Bruce Maring, D.C. (10 Fla. L. Weekly Supp. 172a) 9th Judicial Circuit (Appellate).
7. It is undisputed that the execution of the assignment of benefits to Yates Chiropractic Associates, the pre-suit demand issued by Plaintiff, and the filing of suit took place prior to the Plaintiff’s registering of the fictitious name Yates Chiropractic Associates with the Florida Department of State, Division of Corporations.
8. “According to Florida law, only one party ‘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 Mutual Automobile Ins. Co., 781 So. 2d 469, 470 (Fla. 5th DCA 2001).
9. It is undisputed that the assignment of benefits in this case conferred the rights of Dawson Rodriguez to the entity of Yates Chiropractic Associates.
10. Therefore, this Court finds that the Plaintiff’s violation of Florida Statute § 865.09 (2007) was fatal to the proper execution of the assignment of benefits Plaintiff relied upon to confer standing.
11. This Court also finds that the Plaintiff did not have standing to issue the pre-suit demand letter dated August 10, 2007, as required by Florida Statute § 627.736 (2007).
Accordingly, it is hereby
ORDERED and ADJUDGED that a Summary Final Judgment is hereby entered for the Defendant; it is further ORDERED and ADJUDGED that Plaintiff shall take nothing by this action and Defendant shall go hence without day.
