21 Fla. L. Weekly Supp. 268a
Online Reference: FLWSUPP 2103KUNTInsurance — Personal injury protection — Attorney’s fees — Justiciable issues — Medical provider who used unregistered fictitious name on assignment knew or should have known that claim was not supported by material facts and applicable law
CENTRAL FLORIDA INJURY SOUTHWEST, INC., AS ASSIGNEE OF JOHN KUNTZ, Plaintiff, vs. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant. County Court, 9th Judicial Circuit in and for Orange County, Civil Division. Case No. 2012-SC-1018-0, Sec. 73. November 18, 2013. Honorable Faye L. Allen, Judge. Counsel: Steven Johnson, for Plaintiff. David Hwalek, for Defendant. James Hauser, for Steven Johnson.
ORDER ON DEFENDANT’S MOTION FOR ATTORNEYS FEES AND COSTS (as to entitlement)
THIS CAUSE, having come before this Court upon Defendant’s Motion for Attorneys Fees and Costs, the Court having heard arguments of both parties’ counsel, reviewed the record evidence before the Court, and the Court having been otherwise advised in the premises, the Court rules as follows:
Background: This is a PIP case in which the lawsuit was served to United Services Automobile Association [USAA] on March 1, 2012. Said lawsuit was based on an assignment of benefits to Central Florida Injury. USAA served its Answer and Affirmative Defenses which informed the Plaintiff that pursuant to Fla. Stat. 865.091 and the Orange County Circuit Court case of New Hampshire v. Equinox [10 Fla. L. Weekly Supp. 172a] it cannot maintain this lawsuit because the assignment is to an unregistered fictitious entity. The Plaintiff later moved to amend its Complaint to name Central Florida Injury Southwest, Inc., alleging that the name of Central Florida Injury Rehabilitation was a scriveners’ error. The Court granted the Plaintiff’s motion to amend to name Central Florida Injury Southwest, Inc. as the sole Plaintiff in this lawsuit. The Plaintiff has admitted via its responses to admissions that the assignment was to Central Florida Injury. Additionally, USAA filed a document from the Department of State, State of Florida, which certified that “the records of this office do not disclose a Fictitious Name Registration by the name of CENTRAL FLORIDA INJURY, active, expired, or cancelled.”
USAA served its Motion for Summary Judgment based on the fact that the Plaintiff did not have an assignment of benefits and the assignment was to an unregistered fictitious entity. Said Motion for Summary Judgment was set for December 12, 2012. On December 4, 2012, the Plaintiff served its voluntary dismissal without prejudice.
On September 25, 2012, Judge Plodstedt granted USAA’s Motion for Summary Judgment in the case Central Florida Injury Southwest, Inc. (a/a/o Gayle White) v. United Services Automobile Association, Case No. 2012 SC 1019-0 Div. 70 (Fla. 9th Circuit, County Court, 2012) [20 Fla. L. Weekly Supp. 687c] [hereinafter “Gayle White”]. The assignment of benefits in the Gayle White case was signed on the same day and was identical to the assignment of benefits signed by John Kuntz in the case before this Court. The issues in the Gayle White Motion for Summary Judgment were identical to the issues in the Motion for Summary Judgment that was set for hearing on December 12, 2012 in the case before this Court. In granting the Motion for Summary Judgment, the Judge Plogstedt cited to its prior-ruling granting Progressive’s Motion for Summary Judgment in the case of Kevin J. Yates, D.C., P.A. d/b/a Yates Chiropractic Associates, a/a/o Dawson Rodriguez v. Progressive Select Insurance Company, 15 Fla. L. Weekly Supp. 1105a (Fla. 9th Jud. Cir. Cty. Ct., September 12, 2008). In Yates, the court found that the assignment of benefits was to Yates Chiropractic Associates, which was an unregistered fictitious entity at the time the assignment was executed, and Yates Chiropractic Associates remained an unregistered fictitious entity at the time the lawsuit was filed. Citing to the Orange County Circuit Court case of New Hampshire v. Equinox case, the Yates court held “a healthcare provider who has used an unregistered fictitious name in violation of Florida Statutes, Section 865.09 . . . on the assignment of benefits, cannot recover benefits under Florida Statutes, 627.736(5).” The Yates court continued with “this Court finds that the Plaintiff’s violation of Florida Statute 865.09 was fatal to the proper execution of the assignment of benefits Plaintiff relied upon to confer standing”. In granting USAA’s Motion for Summary Judgment in the Gayle White case, Judge Plogstedt ruled that the “Plaintiff’s violation of Florida Statute 865.09 is fatal to the proper execution of the assignment of benefits Plaintiff relied on to confer standing”. The Gayle White court also determined that “only the insured would have the right to bring suit in this case. See Progressive v. Hartley, 21 So.2d 119 (Fla. 5th DCA 2009) [34 Fla. L. Weekly D2229c] [The DCA agreed with the lower court that because the assignment of benefits was to an unregistered fictitious name, the right to bring a lawsuit remained with the insured.]” It is important to point out that Judge Plogstedt also held that the Plaintiff’s assignment of benefits was “clear and unambiguous”. This Court agrees with Judge Plodstedt’s reasoning in the Gayle White case: the Plaintiff does not have standing as the assignment of benefits is to an unregistered fictitious entity. This Court also finds that the assignment of benefits is clear and unambiguous.
The Plaintiff argues that Peyton v. Horner, 920 So. 2d 180 (Fla. 2d DCA 2006) [31 Fla. L. Weekly D462a] is applicable to this case. In Peyton, the court reversed a trial court’s award attorneys fees awarded pursuant to Fla. Stat. 57.105 because the assignment was ambiguous. The issue in Peyton was whether the assignment: from a developer to a civic association assigned rights to enforce restrictive covenants to two subdivisions or only one subdivision. The Peyton court found that because the assignment was ambiguous as to what was assigned, awarding 57.105 fees was not warranted. In the case before this Court, the assignment at issue was unambiguously clear that it was not to the Plaintiff (Central Florida Injury Southwest, Inc.) as the Plaintiff admitted that its assignment was to Central Florida Injury. Additionally, the USAA filed an undisputed certified document from the State of Florida’s Department of State which stated that “Central Florida Injury” was not registered as an fictitious entity. There is no question or ambiguity that Fla. Stat. 865.09 does not permit an unregistered fictitious entity to maintain a lawsuit. As such, the Peyton case is distinguishable from the facts of this case before this Court.
USAA served 57.105 Motions based on the fact that the Plaintiff had no standing to file this lawsuit. USAA complied with the Fla. Stat. 57.105 requirements of filing the 57.105 Motion, including the requirement that a 57.105 Motion is not to be filed until subsequent to the 21 day safe harbor period expired.
This Court finds that based upon Kevin J. Yates, D.C., P.A. d/b/a Yates Chiropractic Associates, a/a/o Dawson Rodriguez v. Progressive Select Insurance Company, 15 Fla. L. Weekly Supp. 1105a (Fla. 9th Jud. Cir. Cty. Ct., September 12, 2008) the binding case of Progressive v. Hartley, 21 So.3d 119 (Fla. 5th DCA 2009) [34 Fla. L. Weekly D2229c] Central Florida Injury Southwest, Inc. (a/a/o Gayle White) v. United Services Automobile Association, Case No. 2012 SC 1019-0 Div. 70 (Fla. 9th Circuit, County Court, 2012) [20 Fla. L. Weekly Supp. 687c], and the facts of this lawsuit, that the Plaintiff and Plaintiff’s attorneys should have known that its lawsuit was frivolous [and therefore USAA is entitled to reasonable attorneys fees pursuant to Fla. Stat. 57.105]. Both the Yates and Hartley were published cases decided years before the present lawsuit was filed.
Based upon the arguments of counsel, the evidence filed with this Court it is hereby:
ORDERED AND ADJUDGED that this Court specifically finds that Plaintiff and Plaintiff’s attorneys knew or should have known that this claim, when initially presented, was not supported by the material facts necessary to establish the claim and would not be supported by the application of then existing law to the material facts. It is further
ORDERED AND ADJUDGED that the USAA has met its burden under Fla. Stat. 57.105 with regard to the Plaintiff and Plaintiff’s attorneys and is entitled to reasonable attorney’s fees. It is further
ORDERED AND ADJUDGED that this Court retains jurisdiction to determine the amount of attorneys’ fees and costs.
__________________
1Fla. Stat. 865.09 [fictitious name registration statute] states “an action, suit, or proceeding may not be maintained in any court of this state by any successor or assignee of such business on any right, claim, or demand arising our of the transaction of business by such business in this state until this section has been complied with.”
* * *
