16 Fla. L. Weekly Supp. 596a
Online Reference: FLWSUPP 166HERAR
Insurance — Personal injury protection — Standing — Assignment — Where only assignment of benefits for treatment of named insured’s minor child in existence at time of filing suit was signed by child’s adult sister, medical provider did not have valid assignment and, therefore, did not have standing to file suit — Provider’s motion to amend complaint to attach assignment is denied where neither assignment signed by sister nor later assignment signed by named insured after suit was filed was valid assignment — Motion to dismiss granted
TRAUMA MEDICAL SERVICES, P.A., (a/a/o TAHINA HERARD), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant, County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-009958 COCE 52. April 16, 2009. Leonard Feiner, Judge. Counsel: Adolfo Podrecca, Fazio, Discalvo, Cannon, Abers, for Plaintiff. Mary Valladares, Matt Hellman, P.A., Plantation, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS and ORDER DENYING PLAINTIFF’S MOTION FOR LEAVE TO AMEND THE COMPLAINT
THIS CAUSE came before the Court on April 15, 2009, for hearing of the Defendant’s Motion to Dismiss filed by Defendant UNITED AUTOMOBILE INSURANCE COMPANY, and for hearing of the Plaintiff’s Motion For Leave to Amend the Complaint filed by the Plaintiff, Trauma Medical Services P.A., and the Court having reviewed the Motions and relevant legal authorities, heard arguments of counsels, and been sufficiently advised in the premises, finds as follows:
Nature of the Case
The Plaintiff, Trauma Medical Services P.A., sues the Defendant, United Automobile Insurance Company, alleging that the Defendant has failed to pay certain Personal Injury Protection (“PIP”) benefits in accordance with the applicable insurance policy and the Florida Stat. § 627.736 et seq., for treatment and services allegedly rendered by the Plaintiff to a minor child from a motor vehicle accident that occurred on January 17, 2008.
On June 25, 2008 Plaintiff filed a three (3) count complaint. Count I is for PIP Benefits, Count II is for declaratory relief as to “full and final” on the checks issued, and Count III is for declaratory relief as to provide Explanation of Benefits and alleged that Defendant breached the insurance contract and Fla. Stat. § 627.736. Plaintiff’s basis for filing the suit is the allegation in paragraph six of the complaint where it reads “Plaintiff served Defendant with the Statutory pre-suit demand letter, assignment of benefits and ledger of bills copies of which are attached hereto.”
Defendant argues that Plaintiff does not have standing to bring this suit at the time it filed the lawsuit on June 25, 2008 because of Plaintiff’s failure to attach the assignment of benefits that Plaintiff references in paragraph six (6) of the complaint to the complaint filed on June 25, 2008. Hartford Insurance Company of the South East vs. St. Mary’s Hospital Inc., 771 So. 2d 1210 (Fla. 4th DCA 2000). Medical Rehab and Therapy Center d/b/a Pain Corrective Center of Brandon , Inc., as assignee of Shannon Patterson, vs. State Farm Mutual Auto. Insurance Company, Appellee (8 Fla. L. Weekly Supp. 605) 13th Judicial Circuit (Appellate). And pursuant to F.R.C.P. 1.130, Plaintiff is required to attach the exhibit when same is referenced in the complaint. Furthermore, Plaintiff’s December 22, 2008 assignment from Appolonie Johnson to the Plaintiff nearly six months after litigation started is also not valid as it is an attempt to relate back an assignment of rights to a lawsuit after suit was filed which is not permissible. Progressive Express Insurance Company v. McGrath Community Chiropractic, 913 So. 2d 1281 (Fla. 2nd DCA 2005).
Findings of Fact
The basis of Defendant’s Motion to Dismiss for lack of standing is due to Plaintiff’s failure to attach the assignment of benefits that Plaintiff references in paragraph six (6) of the complaint to the complaint filed on June 25, 2008. The assignment that Plaintiff had at the time of filing the lawsuit is dated January 24, 2008 and signed by Sharleen Herard, the adult child of Defendant’s named insured, Appolonie Johnson, and elder sister of Tahina Herard. Plaintiff admits that it failed to file the June 25, 2008 complaint with an assignment as is alleged in paragraph six (6) of that complaint. Plaintiff admits that Sharleen Herard is an adult sister but not the parent of the named insured’s minor child, Tahina Herard. The second assignment of benefits directed to the Plaintiff in this case is dated nearly six months after litigation began on December 22, 2008 and signed by Appolonie Johnson, the Defendant’s insured and mother of the minor child/claimant, Tahina Herard. The December 22, 2008 assignment is included in Plaintiff’s Motion for Leave to Amend the Complaint along with a demand letter dated January 8, 2009, after litigation began.
Conclusions of law
That on June 25, 2008, the filing date of the complaint, Plaintiff failed to have a valid assignment of benefits and therefore did not have standing to file this cause of action against the Defendant.
The Court also sustains Defendant’s objections to Plaintiff’s Motion for Leave to Amend the Complaint based upon the fact that the Court does not find that the assignment of benefits is a valid assignment.
The Court having reviewed the Motions and relevant legal authorities, heard arguments of counsels, and been fully advised in the premises, it is therefore, ORDERED AND ADJUDGED that: Defendant’s Motion to Dismiss is hereby GRANTED and this cause of action is dismissed without prejudice and that Plaintiff’s Motion for Leave to Amend the Complaint is hereby DENIED.
