17 Fla. L. Weekly Supp. 386c
Online Reference: FLWSUPP 1705MONT
Insurance — Personal injury protection — Complaint — Amendment — Where defendant insurer knew at all times whether or not insured who had paid premiums to an entity under insurer’s brand was its customer, but failed to disclose that medical provider was addressing wrong corporate entity, and neither insurance card nor explanation of benefits lists entity that insurer now argues is true insurer, motion for leave to amend complaint to name correct insurer is granted
AMERICAN BEST CLINIC, INC. a/a/o Jose O. Perez Montejo, Plaintiff, v. INFINITY INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 09-CC-023073, Division M. February 15, 2010. Paul L. Huey, Judge. Counsel: Elizabeth E. Andrews, Andrews & Manno, PA, Tampa. Steven T. Sock, The Law Offices of Gonzalez & Associates, LLC, Brandon, for Plaintiff.
ORDER DENYING DEFENDANT’S AMENDED MOTION FOR SUMMARY JUDGMENT AND GRANTING PLAINTIFF’S MOTION FOR LEAVETO AMEND COMPLAINT
Defendant’s Amended Motion for Summary Judgment and Plaintiff’s Motion For Leave To Amend Complaint having come on for hearing on January 5, 2010, and the Court being advised in the premises, having reviewed the record and heard argument of counsel, FINDS, ADJUDGES and DECREES:
1. That at all times Infinity Insurance Company knew whether or not Jose O. Perez Montejo, who had dutifully paid premiums to an Infinity insurance entity, was its customer. Although it at all times knew what it argues now, it played hide the ball until now.
2. Apparently, based on the Explanations of Benefits in the record, which has the heading “Infinity Insurance Companies,” for all the Plaintiff knew when it sent in its bill the insurer may have been “Infinity, Leader, Atlanta Casualty, Windsorauto, Great American Insurance Companies,” each of which apparently is a “Member of Infinity Property and Casualty Corporation.” Defense counsel stated that Infinity Property and Casualty Corporation is also not a proper party. Note that Defendant argues that the true insurer is Infinity Auto Insurance Company, which was not even listed on the EOB or the insured’s insurance card, yet at no time prior to the filing of the suit did anyone from Infinity advise Mr. Montejo that he was not insured by Infinity Insurance Company.
3. That Plaintiff did initially sue one of the affiliated Infinity entities that issues PIP policies.
4. That at all times an Infinity insurance company was in control of the paper flow. It prepared the insurance card, which did not contain the entity that defense counsel claims is the real insurer. Rather, it merely states “Infinity Value Added,” which does not designate a corporation or even a fictitious name registered in Florida. The Court remains clueless as to what is Infinity Value Added. Infinity Insurance Company then responded to the original billing by the doctor by sending the statutorily mandated EOB, again without declaring the name of the insurer.
5. That because (1) of the insurer’s legal duties to handle claims in good faith and to deal fairly with its customers, (2) the purpose of PIP, i.e., to ensure virtually automatic payment of claims (Ivey v. Allstate Ins. Co., 774So.2d 679, 683-684 (Fla. 2000)) and (3) that all the Infinity insurance entities are under common control, it is clear that neither Infinity Insurance Company nor Infinity Auto Insurance Company can claim prejudice.
6. That appellate courts repeatedly admonish trial courts to handle cases on the merits. Here, as soon as Plaintiff learned of its alleged mistake, it moved to amend. The case law is clear that amendments are to be liberally granted, especially in the early stages of litigation and when there is no undue prejudice.
7. That the Court is keenly aware of Florida’s corporation laws and the plaintiff’s duty to sue the correct party. However, in light of the circumstances here, it believes that the spirit and intent of those laws are not to bar a doctor from suing for PIP benefits rendered when the insurance company is the one who caused the confusion.
WHEREFORE, the Motion for Summary Judgment is DENIED and the Motion to Amend is GRANTED. Plaintiff has ten days from the date of this Order to amend its Complaint without the need to serve a new demand letter. If counsel for Defendant here chooses not to accept service, Plaintiff will have to serve Infinity Auto Insurance Company. Regardless, all prior discovery from or to the Infinity entity shall be binding on Infinity Auto Insurance Company.
