18 Fla. L. Weekly Supp. 553a
Online Reference: FLWSUPP 1806DINN Insurance — Personal injury protection — Medical provider/assignee’s complaint based on assignment that names two assignees is dismissed for failure to join co-assignee as indispensable party
HOWARD DINNER, D.C., P.A. (a/a/o VERNA LATTIMORE), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 10-10629 COCE 53. March 21, 2011. Honorable Robert W. Lee, Judge.
ORDER ON DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT
THIS CAUSE having come on to be heard on March 10, 2011 for hearing on Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint, by Defendant STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and the Court having reviewed the Motion and relevant legal authorities, heard arguments of counsels, and been sufficiently advised in the premises, finds as follows:
The Plaintiff, Howard Dinner, D.C., P.A., sues the Defendant, State Farm Mutual Automobile Insurance Company, on an assignment and alleges 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 Verna Lattimore, from a motor vehicle accident that occurred on or about May 11, 2009. Plaintiff’s Amended Complaint contains two counts: Count I, late payment under Fla. Stat. 627.736(4)(b), and Count II, for declaratory judgment as to validity of the assignment of benefits in the issue case. Defendant moves to dismiss this cause of action alleging among other things that Plaintiff failed to join an indispensable party based on the language of the assignment attached to the Complaint that in pertinent part reads: “I hereby authorize and direct you, my insurance company and/or my attorney, to assign my benefits and pay directly to Howard Dinner, D.C., P.A. and Community Health Services of South Florida. . .”.
ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint is hereby GRANTED, WITH LEAVE to amend within twenty (20) days from the date of this Order as to indispensable party based on Hertz v. Piccolo, 453 So. 2d 12 (Fla. Sup. Ct. 1984) and denies the remainder without prejudice. Defendant may serve a response within twenty (20) days from receipt of Plaintiff’s Second Amended Complaint.
