20 Fla. L. Weekly Supp. 933a
Online Reference: FLWSUPP 2009JRODInsurance — Dismissal — Assignment — Attachment of assignment of benefits to complaint of medical provider claiming benefits pursuant to written assignment is not required by rule 1.130 — Motion to dismiss is denied
HEALTHWEST REHABILITATION GROUP INC. (a/a/o Jatniel D. Rodriguez) vs. PROGRESSIVE AMERICAN INSURANCE COMPANY. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 12-21823, Division H. March 7, 2013. Honorable Margaret T. Courtney, Judge. Counsel: Joseph R. Pliego, II and Emilio R. Stillo, Tampa, for Plaintiff. Brian Giddings, Tampa, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS
THIS CAUSE came before the Court on January 7, 2013 for hearing on Defendant’s Motion to Dismiss, and the Court’s having reviewed the motion and entire Court file; reviewed the relevant legal authorities; heard argument, and been sufficiently advised in the premises the Court finds as follows:
Findings of Fact: The Defendant has filed a Motion to Dismiss asserting that the failure to attach a copy of the written Assignment of Benefits to Plaintiff’s complaint warrants dismissal of Plaintiff’s case. The only authority relied upon by the Defendant for this proposition is Progressive Express Ins. Co. v. McGrath Chiropractic, 913 So.2d at 1285 (Fla. 2nd DCA 2005) [30 Fla. L. Weekly D2622b]. It is undisputed the Plaintiff has pled that the claimant Jatniel D. Rodriguez has assigned her benefits to the Plaintiff Healthwest Rehabilitation Group Inc.
Conclusions of Law. Rule 1.130 does not require Plaintiff to attach a written Assignment of Benefits. Subsection (a) of this Rule provides:
(a) Instruments Attached. All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading. No papers shall be unnecessarily annexed as exhibits. The pleadings shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments.
(emphasis added).
The present case rests on a breach of the insurance contract, not a breach of the assignment. The purpose of Rule 1.130 is to apprise the defendant of the nature of the cause of action so that it may form a reply. Daniel B. Mankowitz D.C. PA. (a/a/o Latoya Jackson) v. Allstate Insurance Company, 8 Fla. L.Weekly Supp. 648a (Judge LoGalbo, Pinellas County Court 2001); Sasche v. Tampa Music Co., 262 So.2d 17, 19 (Fla. 2d DCA 1972); citing United States Rubber Products v. Clark, 200 So.385 (Fla. 1941). The attachment of the assignment is not required by Rule 1.130. The Plaintiff has provided numerous decisions reaching the same conclusion including Bradenton Spine and Joint Center Inc. (a/a/o Randall Marisberger) v. Progressive Express Insurance Company, 10 Fla. L. Weekly Supp. 544b (Judge Goldman, Sarasota County Court 2003) and N.T.C.A. (a/a/o Jacqueline O’Brien) v. Progressive Express Insurance Company, 9 Fla. L.Weekly Supp. 254a (Judge Herring, Broward County Court 2001). Further, the 3rd DCA held an allegation of assignment was sufficiently pled to withstand a motion to dismiss. Parkway General Hospital Inc. v. Allstate Insurance Company, 393 So.2d 1171 (Fla. 3rd DCA 1981).
The Defendant’s reliance on Progressive Express Insurance Company v. McGrath Community Chiropractic 913 So.2d at 1285 (Fla. 2nd DCA 2005) [30 Fla. L. Weekly D2622b] is misplaced as McGrath is distinguishable in that in McGrath there was no written Assignment of Benefits at inception of the suit and the assignment of benefits was not obtained until after suit was filed. That is not the case in the instant suit.
ORDERED AND ADJUDGED THAT: the Defendant’s Motion to Dismiss is DENIED. The Court further finds the complaint to be sufficiently drafted to require the Defendant to file an Answer. Defendant shall file an Answer and Affirmative Defenses within 20 days of the date of this Order.
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