16 Fla. L. Weekly Supp. 113a
Insurance — Personal injury protection — Standing — Assignment — Medical provider cured any alleged defect in assignment directed to entity that was not registered as fictitious name until after suit was filed by registering fictitious name prior to any tender by insurer of sums due
DR. JACK R. BERMAN D/B/A BERMAN CHIROPRACTIC CENTER, a Florida Corporation (assignee of Bramelus, Ludny), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-07123 COCE 53. November 18, 2008. Robert W. Lee, Judge. Counsel: Jonathan J. Warrick, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. Matt Hellman, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE, came before the court for hearing on October 29, 2008, and the court, having reviewed the Motion, the court file, legal authorities and having heard argument of counsel, finds as follows:
Factual Background: This is a multi-count PIP case. Defendant has moved for summary judgment alleging, inter alia, that Plaintiff’s Assignment of Benefits (“AOB”) is invalid because it is directed to an entity that was not registered as a fictitious name until after suit was filed. Plaintiff responds that: 1. Plaintiff has registered the fictitious name and may pursue its lawsuit; 2. Plaintiff has both a valid written and valid equitable assignment as validated by Defendant’s own conduct in continuing (for nearly 2 years) to treat the Plaintiff as the party in interest (which it is as there is no competing claim or confusion as to who is pursuing this claim); 3. Defendant issued no EOB or other objection to Plaintiff’s standing until after suit and Plaintiff has since registered the fictitious name. In fact, the fictitious name in question contained the name of the party in question (Berman Chiropractic Center) so it was arguably not even required that it be registered; 4. This circuit has long accepted the notion of equitable assignment and has established that “intent” is the driving factor in determining standing. Here the intent is clear and the court may look to the parties’ conduct to even see that all parties treated Plaintiff as the proper assignee by their actions; 5. Plaintiff’s services were not unlawful as F.S. s. 865.09 is a debtor-creditor statute designed to help avoid debtors hiding behind false names to avoid debts to creditors (interestingly, the debtor here is using the statute in attempt to avoid a debt) and is not a statute “related to the provision of health care services”; and, 6. Additionally, F.S. s. 865.09 specifically provides that non-compliance does not invalidate existing contracts — it simply limits the offending litigant’s ability to pursue its lawsuit until it complies — which Plaintiff has done.
Conclusions of Law:The Court need not reach the issue of equitable assignment, or the debtor-creditor nature of F.S. s. 865.09. The record does not support the Defendant’s claim that there are no disputed issues of material fact entitling Defendant to relief. To the contrary, the undisputed evidence is that the Plaintiff cured any alleged defect under the fictitious name statute prior to any tender by the Defendant of any sums due. Fla. Stat. §865.09(b).
Accordingly, it is hereby:
ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment is DENIED.
