19 Fla. L. Weekly Supp. 46a
Online Reference: FLWSUPP 1901EVANInsurance — Personal injury protection — Standing — Where assignment of PIP benefits at inception of case was to treating physician as individual, not to plaintiff that is corporate entity, plaintiff lacked standing to bring suit — Lack of standing could not be cured by plaintiff registering physician’s name as fictitious name after suit was filed
RICHARD W. MERRITT, D.C., P.A., as assignee of ARTHUR LEE EVANS, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 10th Judicial Circuit in and for Polk County. Case No. 2009CC-002619. November 10, 2009. Anne Kaylor, Judge.
[Editor’s note: Affirmed on appeal. 18 Fla. L. Weekly Supp. 969a]
ORDER OF DISMISSAL
THIS CAUSE came before the Court on November 2, 2009, for hearing of the Defendant’s Amended Motion to Dismiss filed by Defendant STATE FARM, 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:
Defendant argues that Plaintiff does not have standing to bring this suit at the time it filed the lawsuit on May 11, 2009 because there was no assignment to Richard W. Merritt, D.C., P.A., a corporate entity, the named Plaintiff. Rather, the PIP benefits were assigned to Dr. Richard W. Merritt, an individual. Subsequent to the filing of the Defendant’s original Motion to Dismiss, Plaintiff sought to cure any potential defect by registering Dr. Richard W. Merritt as a Fictitious Name, and claims that since the name is owned by Richard W. Merritt, D.C., P.A., any issue of standing is rendered moot.
Defendant then filed its Amended Motion to Dismiss claiming that the Plaintiff also lacked standing because of a re-assignment of benefits back to the insured by “Chiropractic Health Center”, which document was purportedly signed by Dr. Richard Merritt on December 30, 2008. However, no testimony was offered by either side on that issue. Plaintiff’s response to the Amended Motion to Dismiss was a duplicate of the response to the original Motion to Dismiss, with no mention of any purported re-assignment.
The Second District Court of Appeal ruled in Progressive Express v. McGrath Community Chiropractic, 913 So. 2d 1281 (Fla. 2nd DCA 2005) [30 Fla. L. Weekly D2622b], that a plaintiff’s lack of standing at the inception of a case is not a defect that may be cured by the acquisition of standing after the case is filed. As such, the Plaintiff does not have standing in this case, neither at the time of the inception of the lawsuit, nor subsequent to the filing of this lawsuit, despite the efforts to cure by the filing under the Fictitious Name Statute after a Motion To Dismiss.
It is ADJUDGED that Plaintiff, Richard W. Merritt, D.C., P.A., take nothing by this action and that the Defendant, State Farm Fire and Casualty Company, shall go hence without day.
It is further ORDERED and ADJUDGED that this Court reserves jurisdiction to determine entitlement to costs and/or attorney’s fees, and if awarded, the amount of any such costs and/or fees.
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