20 Fla. L. Weekly Supp. 268a
Online Reference: FLWSUPP 2003WANEInsurance — Personal injury protection — Counterclaims — Insurer cannot file counterclaim against medical provider in individual capacity where provider brought original action solely as assignee of patient — Because medical provider is not opposing party in individual capacity, and physician and other individuals named as counter-defendants are not parties to original action, entire counterclaim must be dismissed
ALHAMBRA HEALTH & REHAB, INC. a/a/o HENRY WANECER, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Counter-Plaintiff, vs. ALHAMBRA HEALTH & REHAB, INC.; SUE ELLEN AUDETTE; R. DIANE COPELAND; and FRITZ JEAN-CHARLES, Counter-Defendants. Circuit Court, 9th Judicial Circuit in and for Orange County. Case No. 2011-CA-5544. November 13, 2012. Honorable Patricia Doherty, Judge. Counsel: Chad A. Barr, Eiffert & Associates, PA, Orlando, for Plaintiff. Victor Chapman, Barrett, Chapman & Ruta, PA, Orlando, for Defendant.
ORDER ON COUNTER-DEFENDANT’S SUE-ELLENAUDUETTE, FRITZ JEAN-CHARLES, and ALHAMBRAHEALTH & REHAB, INC.’S RENEWED MOTIONTO DISMISS, MOTION FOR REHEARING/RECONSIDERATION and/or MOTION FORWRITTEN OPINION AS TO COURT ORDER DENYINGCOUNTER-DEFENDANT’S MOTIONS TO DISMISSCOUNTERCLAIMS ENTERED NOVEMBER 15, 2011
THIS MATTER came before the Court on Counter-Defendant’s Sue-Ellen Audette, Fritz Jean-Charles, and Alhambra Health & Rehab, Inc.’s Renewed Motion to Dismiss, Motion for Rehearing/Reconsideration, and/or Motion for Written Opinion as to Court Order Denying Counter-Defendant’s Motions to Dismiss Counterclaims Entered November 15, 2011, and, being considered by the Court and otherwise being fully advised of the premises; it is hereby ORDERED AND ADJUDGED that:
1. The Counter-Defendants’ Motion to Dismiss the Counterclaim filed by State Farm is hereby GRANTED and the counterclaim is hereby dismissed in its entirety with prejudice to the claims being reasserted in this action. Sue-Ellen Audette, Fritz Jean-Charles, Diane Copeland, and Alhambra Health & Rehab, Inc. are hereby DISMISSED from this action. While State Farm may not maintain any causes of action against these non-parties in this action, State Farm may assert claims against them in a separate action. The Court’s ruling is based on the following legal findings:
2. In January of 2011, Alhambra Health & Rehab, Inc. filed a lawsuit against State Farm for the recovery of No-Fault benefits based on an assignment of benefits from Henry Wanecer. In March of 2011, State Farm filed a counterclaim against Alhambra Health & Rehab, Inc., individually, Sue-Ellen Audette, Diane Copeland, and Fritz Jean-Charles. The case was transferred to the Circuit Court in and for Orange County, Florida.
3. In April of 2011, Dr. Audette filed her Motion to Dismiss the counterclaim. In August of 2011, Fritz Jean-Charles and Alhambra Health & Rehab, Inc. filed their Motions to Dismiss the counterclaim. A hearing on the Counter-Defendants’ Motions to Dismiss was held on September 14, 2011. On November 15, 2011, this Court entered an Order denying the Counter-Defendants’ Motions to Dismiss.
4. On December 16, 2011, the Counter-Defendants filed a Joint Motion for Rehearing, Renewed Motion to Dismiss, and/or Motion for a Written Opinion as to the November 15, 2011 Order. The Counter-Defendants’ Motion for Rehearing was granted by this Court on July 26, 2012. A hearing on the Counter-Defendant’s Motion for Rehearing, Renewed Motion to Dismiss, and Motion for Written Opinion was held on November 1, 2012.
5. The Court finds that the underlying lawsuit was filed by Alhambra Health & Rehab, Inc., based on an assignment of benefits, for the recovery of a debt incurred. The Court finds that the case of Nationwide Terminals, Inc. v. MC Construction, 964 So. 2d 705 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D949a] is controlling and requires dismissal of the counterclaim in this case. In the instant case, Alhambra Health & Rehab, Inc. is the Plaintiff in the underlying case only because it is the assignee of the patient, Henry Wanecer. See Nationwide Terminals. The underlying action was not brought by Alhambra Health & Rehab, Inc. in its individual capacity. As such, the counterclaim by State Farm against Alhambra Health & Rehab, Inc. in its individual capacity cannot properly be brought or maintained. See Nationwide Terminals.
6. Because Alhambra Health & Rehab, Inc., in its individual capacity, is not an “opposing party” to the action based on Nationwide Terminals, and because neither of the other Counter-Defendants are parties to the original action, State Farm’s argument that it can add additional parties to a counterclaim pursuant to Rule 1.170(h) of the Florida Rules of Civil Procedure is rejected. Without any “opposing parties” from the original action in the counterclaim, the counterclaim must be dismissed.
7. It is further ORDERED and ADJUDGED that the Counter-Defendants’ motion for written opinion as to the November 15, 2011 order is DENIED as moot.
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