15 Fla. L. Weekly Supp. 613a

Insurance — Personal injury protection — Standing — Assignment — Medical provider/professional association lacks standing where, prior to executing purported assignment to professional association, insured assigned benefits for same services and charges to medical provider in individual capacity, and prior assignment was not mutually revoked at time of assignment to professional association — Further, where assignment attached to demand letter was invalid, condition precedent to suit has not been satisfied — Summary judgment granted in favor of insurer

LEONARD LINARDOS, D.C., P.A., D/B/A WEST COAST SPINE AND INJURY CENTER, A/A/O LATANYA CROSS, Plaintiff, vs. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant. County Court, 6th Judicial Circuit in and for Pinellas County, Civil Division. Case No. 07-10980-SC-SPC. March 27, 2008. Walt Fullerton, Judge. Counsel: Andrew Reeder, Reeder & Nussbaum, P.A., St. Petersburg, for Plaintiff. Stephen M. Lawler, Ramey & Kampf, P.A., Tampa, for Defendant.

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

THIS CAUSE having come on to be heard on Defendant, United Services Automobile Association’s (“USAA”) Motion for Summary Judgment, and the Court having reviewed the pleadings, heard argument of counsel, and being otherwise advised in the Premises, makes the following findings:

1. The named Plaintiff, Leonard Linardos, D.C., P.A., dba West Coast Spine and Injury Center, filed this action seeking payment of allegedly overdue personal injury protection benefits for services provided to the purported assignor, Latanya Cross.

2. Plaintiff alleged that it maintained standing to bring this action based upon acceptance of a valid assignment of benefits from Latanya Cross.

3. Plaintiff further alleged that all conditions precedent to this action had been satisfied.

CONCLUSIONS OF FACT

4. The undisputed record evidence before the Court demonstrated that:

a. Leonard Linardos, D.C., P.A. is a Florida corporation. Leonard Linardos, D.C., is an individual licensed to practice chiropractic medicine under the laws of the State of Florida. The two are separate and distinct legal entities.

b. On or about May 7, 2007, Latanya Cross executed an assignment of benefits in favor of Leonard Linardos, D.C. as assignee, in his individual capacity for services provided by West Coast Spine and Injury Center to Latanya Cross.

c. On September 25, 2007, Latanya Cross also executed a purported assignment of benefits in favor of Leonard Linardos, D.C., P.A., the physician’s corporation, with regard to the same services and charges.

d. The assignment of benefits dated May 7, 2007 in favor of Leonard Linardos, D.C., was not mutually revoked at the time that the September 25, 2007 purported assignment of benefits in favor of Leonard Linardos, D.C., P.A. was executed.

e. Plaintiff sent USAA a purported pre-suit demand letter/notice of intent to initiate litigation pursuant to Fla. Stat. 627.736(11) dated October 12, 2007 regarding the dates of service at issue. The purported assignment of benefits dated September 25, 2007 referenced above was attached to the demand.

CONCLUSIONS OF LAW

5. Plaintiff’s standing in this suit is dependent on Plaintiff possessing a valid and enforceable assignment of benefits from the patient. Progressive Express Insurance Co. v. McGrath Community Chiropractic, 913 So.2d 1281, 1285 (Fla. 2d DCA 2005).

6. Standing is required to bring suit in Florida and must be present before any such suit is filed. See Florida Rule of Civil Procedure 1.120. See also Askew v. Hold the Bulkhead-Save Our Bays, Inc., 269 So.2d 696, 698 (Fla. 2d DCA 1972) (Reversed on other grounds).

7. Standing is equated with subject matter jurisdiction in Florida and cannot be waived, tried by consent, or otherwise cured. See Jacksonville v. Kassewitz, 25 So.2d 271 (Fla. 1946).

8. The lack of subject matter jurisdiction is an issue that may be raised at any time. Fla. R. Civ. P. 1.140. Also See MRI Services, L.C. v. State Farm Mut. Auto. Ins. Co., 807 So.2d 783 (Fla. 2nd DCA 2002).

9. An assignment of benefits is a contract that can be revoked only by mutual agreement of the parties. Hartford Ins. Co. of the Midwest v. O’Connor, 855 So.2d 189, 191 (Fla. 5th DCA 2003).

10. Furthermore, “[a]n assignment of benefits must be made to a legal person or a legal corporation and only one party can own a cause of action at any time.” Mobile Diagnostics, Inc. v. Geico Indemnity Co., 12 Fla. L. Weekly Supp. 890b (18th Cir. Seminole Cty. June 17, 2005). See also Oglesby v. State Farm Mut. Auto. Ins. Co., 781 So.2d 469 (Fla. 5th DCA 2001).

11. A doctor cannot use an assignment of benefits obtained in his individual capacity to create standing for the doctor’s corporation. Vincent Preziosi, D.C. v. Progressive Express Ins. Co., 12 Fla. L. Weekly Supp. 571a (9th Cir. Orange Cty. March 8, 2005); Dr. Thomas J. Crowell, D.C., P.A. v. Progressive Express Ins. Co., 12 Fla. L. Weekly Supp. 164b (17th Cir. Broward Cty. November 9, 2004).

12. An assignor can only assign the rights and benefits possessed by the assignor at the time of the assignment.

13. As Latanya Cross had already assigned the benefits at issue to Leonard Linardos, D.C., Latanya Cross no longer possessed the legal rights to the benefits at issue. Thus, Latanya Cross could not have assigned the benefits at issue to the Plaintiff.

14. Therefore, the purported assignment dated September 25, 2007 in favor of the named Plaintiff is invalid and a legal nullity.

15. As such, the named Plaintiff in this action lacks a valid and enforceable assignment of benefits, and consequently lacks standing to bring this matter.

16. Furthermore, Fla. Stat. 627.736(11)(b)(2) requires that Plaintiff’s presuit demand letter include “a copy of the assignment giving rights to the claimant if the claimant is not the insured.”

17. Where the assignment of benefits attached to the demand is invalid, the condition precedent to suit has not been satisfied. Florida Emergency Physicians Kang & Assoc., M.D., P.A. v. Progressive Express Ins. Co., 12 Fla. L. Weekly Supp. 479a (9th Cir. Orange Cty. Jan. 24, 2005); Suncoast Spinal Centers, Inc. v. Progressive Express Ins. Co., 12 Fla. L. Weekly 254b (13th Cir. Hillsborough Cty. Nov. 24, 2004).

18. Inasmuch as Plaintiff’s demand letter in this case attached an invalid assignment of benefits, Plaintiff’s demand letter did not satisfy the requirements of Fla. Stat. 627.736(11), and Plaintiff has failed to satisfy all conditions precedent to bring this suit.

Based upon the above findings of fact and law, it is hereby:

ORDERED AND ADJUDGED that

1. Defendant’s Motion for Summary Judgment be GRANTED;

2. Plaintiff shall go hence without day;

3. The court reserves jurisdiction to determine Defendant’s entitlement to attorney’s fees and costs upon proper and timely Motion.