15 Fla. L. Weekly Supp. 1012a
Insurance — Personal injury protection — Standing — Assignment — Where record contains insufficient evidence to resolve dispute as to whether plaintiff is same entity named in assignment, trial court is precluded from entering summary judgment on standing issue — Waiver — Defense of lack of standing was waived where defense was not raised in answer or other pleading
THE HEALTHPLACE, INC., (as assignee of Victor Vachez), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 07-24686, Division L. August 6, 2008. Joelle Ann Ober, Judge. Counsel: Timothy A. Patrick, Nicholas & Patrick, P.A., Tampa, for Plaintiff. Anthony J. Petrillo, Luks, Santaniello, Perez, Petrillo & Gold, Tampa, for Defendant.
ORDER DENYING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT REGARDING PLAINTIFF’S LACK OF STANDING
THIS MATTER came before the Court on June 4, 2008, upon the Defendant’s Motion for Summary Judgment Regarding Plaintiff’s Lack of Standing. The Court, having considered the file, heard argument of counsel, reviewed all submissions made in connection with the Motion, and having been sufficiently advised in the premises, finds as follows:
1. The Defendant moves for summary judgment, alleging that the Plaintiff does not have standing to initiate the present action as the purported assignment was made to“THE HEALTHPLACE,”not to the Plaintiff,“THE HEALTHPLACE INC.”
2. “For a medical provider to bring an action for PIP benefits, the insured must assign his or her right to such benefits under the policy to the medical provider.” Progressive Express Insurance Company v. McGrath Community Chiropractic, f/k/a Naples Community Chiropractic, 913 So. 2d 1281, 1285, (Fla. 2d DCA 2005). “The assignment of PIP benefits is not merely a condition precedent to maintaining an action on a claim,” but it is also the basis of the claimant’s standing to invoke the processes of the court. Id.
3. The written assignment executed by the insured reads, in pertinent part: “I am assigning my personal injury protection insurance rights and benefits to THE HEALTHPLACE, A PRIVATE MEDICAL PRACTICE OF DAVID P. KALIN, M.D., M.P.H.”
The Plaintiff contends that it has valid assigned rights, because the Plaintiff is actually the same entity as the named assignee, “THE HEALTHPLACE, a Private Medical Practice of David P. Kalin, M.D., M.P.H.”
4. The standard governing the determination of a motion for summary judgment is well-settled. A party who moves for a summary judgment must demonstrate that there is no genuine issue of material fact and that the party is entitled to judgment as a matter of law. Fla. R. Civ. Pro. 1.510, See also, Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966) (summary judgment is proper only where the pleadings, depositions, answers to interrogatories and admissions show that there is no genuine issue as to any material fact.)
The ambiguity concerning the identity of the party can only be resolved by the determination of the relationship between those entities and the intent of the parties to the assignment. Because the record contains insufficient information to resolve the dispute, there remains a factual dispute as to the material fact, which precludes the entry of summary judgment.
5. More importantly, standing is an affirmative defense that must be raised in answer or motion to dismiss. Unlike subject matter jurisdiction, the failure to raise an affirmative defense generally results in waiver. Fla. R. Civ. Pro. 1.140(b), 1.140(h). Krivanek v. Take Back Tampa Political Comm., 625 So. 2d 840, 842 (Fla. 1983); Schuster v. Blue Cross and Blue Shield of Florida, Inc., 843 So. 2d 909, 912 (Fla. 4th DCA 2003).
A review of the record demonstrates that the Defendant did not raise the issue of lack of standing in either its answer or any other pleading. The Defendant cites the Second District Court of Appeal’s decision in 84 Lumber Company v. Cooper, 656 So. 2d 1297 (Fla. 2d DCA 1994) for the proposition that subject matter jurisdiction cannot be created by waiver, acquiescence, or agreement, and the defense of lack of subject matter jurisdiction can be raised at any time.
While the Court agrees with the general proposition in Cooper, Cooper is inapplicable, because Cooper did not address the issue of standing. “Subject matter jurisdiction is the power of the court to adjudicate the type of case before it. It can be derived directly from the constitution but more often it is created by legislation authorized by the constitution.” Lovett v. Lovett, 112 So. 2d 768, 775 (Fla. 1927). See also, Chase Bank of Texas National Association v. Department of Insurance, 860 So. 2d 472 (Fla. 1st DCA 2003) (“subject matter jurisdiction is the power lawfully conferred to deal with the general subject involved in the action.”)
Unlike subject matter jurisdiction, however, standing is the right of a party to sue or to defend in a particular action. “Standing depends on whether a party has a sufficient stake in a justiciable controversy, with a legally cognizable interest which would be affected by the outcome of the litigation.” Nedeau v. Gallagher, 851 So. 2d 214, 215 (Fla. 1st DCA 2003); Dev. Corp. v. Kirk, 251 So. 2d 284, 286 (Fla. 2d DCA 1971).
Here, even if the assignment of benefits is later determined invalid, it is not subject matter jurisdiction that is lacking in the Court. The party’s lack of sufficient personal stake in the outcome of the proceeding may render the controversy “non-justiciable,” but it will not deprive the court of its subject matter jurisdiction.
The Defendant also cites Medical Rehab and Therapy Center d/b/a Pain Corrective Center of Brandon, Inc., as assignee of Shannon Patterson v. State Farm Mutual Automobile Ins. Co., 8 Fla. L. Weekly Supp. 605a (Fla. 13th Cir. July 16, 2001) to support its contention that the lack of standing is jurisdictional. However, Progressive Consumers Insurance Company v. Newman, D.C. (a/a/o Reem Riley), 15 Fla. L. Weekly Supp. 129a (Fla. 13th Cir. July 17, 2007) receded from Medical Rehab as Medical Rehab was wrongly decided ab initio.
In Progressive, a medical provider, Craig Newman, D.C., P.A. initiated a PIP action, as an assignee of the benefits. The insurer moved for summary judgment, alleging that the plaintiff had no assigned rights because the assignment was made to Craig Newman, D.C., as an individual physician, not to Craig Newman, P.A. The plaintiff, objecting to the motion, argued that the defense was waived when it was not pled in the insurer’s answer. The trial court granted a summary judgment in the insurer’s favor.
Progressive held that the affirmative defense of standing, which had been waived, should not have been considered by the trial court, much less used as the basis for granting summary judgment. Noting that Medical Rehab had previously held that standing is a non-waivable defense, the Progressive court corrected the error. “In an administrative context, subject matter jurisdiction and standing have been linked in such a way that in such cases, standing, like subject matter jurisdiction, cannot be waived and may be raised at any time, including for the first time on appeal.” Id. However, “[o]utside of an administrative context, standing, unlike subject matter jurisdiction, is an affirmative defense that may be waived if not pled.” Id.
Accordingly, outside of the administrative context, Medical Rehab is no longer good law as to the proposition upon which the Defendant relies. Based on the foregoing, the Court finds that the defense of standing was waived.
It is therefore ORDERED AND ADJUDGED that the Defendant’s Motion for Summary Judgment Regarding Plaintiff’s Lack of Standing is hereby DENIED.
