21 Fla. L. Weekly Supp. 146a
Online Reference: FLWSUPP 2102GRIMInsurance — Personal injury protection
DENNIS GRIMBLE, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. Circuit Court, 1st Judicial Circuit in and for Okaloosa County. Case No. 2013-SC-001083F. October 24, 2013. Jim Ward, Judge.
ORDER ON DEFENDANT’S MOTION FORSUMMARY DISPOSITION
THIS CAUSE having come before this Honorable Court on Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY’S Motion for Summary Disposition, and the Court being fully advised in the premises, the Court makes the following findings:
1. This law suit was filed by Plaintiff, based on having obtained a Revocation of Benefits at some point prior to filing suit. The Revocation is undated, but indicates that Dr. Young knew Mr. Grimble had already filed suit, and this suit was filed 5/31/2013 for additional dates of service rendered by Dr. Young. However, Dr. Young’s prior lawsuit for the same claim was still pending at the time, and legally, Dr. Young continued to act on the assignment, in Case No. 2012-SC-001826F, which he did not dismiss with prejudice until August 8, 2013. Only the insured or the medical provider owns the cause of action against the insurer at any one time. And the one that owns the claim must bring the action if an action is to be brought. Oglesby v. State Farm Mutual Automobile Ins. Co., 781 So. 2d 469 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D702a].
2. If Dr. Young had any continuing issues with Defendant, his remedy was to amend his previously filed Complaint to add the new dates of service, after having satisfied the condition precedent of a pre-suit demand, per 627.736(10). Instead, Dr. Young continued to litigate his lawsuit, and his attorney decided to have him execute a revocation of benefits while that action was still pending, and then file suit against Defendant separately, although Mr. Grimble did not have legal standing to do so.
3. F.S. 627.736 (15) states, in pertinent part, as follows:
15) All claims brought in a single action. — In any civil action to recover personal injury protection benefits brought by a claimant pursuant to this section against an insurer, all claims related to the same health care provider for the same injured person shall be brought in one action, unless good cause is shown why such claims should be brought separately. If the court determines that a civil action is filed for a claim that should have been brought in a prior civil action, the court may not award attorney’s fees to the claimant.
4. The Court does not reach a decision on whether additional amounts were due and owing. However, based upon Defendant’s ore tenus amendment to it’s Motion, the Court Grants Defendant’s Motion for Summary Judgment, in part, finding regardless of whether Plaintiff makes any further recovery, Plaintiff’s counsel will not have any further entitlement to claim fees related to this claim, by authority of F.S. 627.736 (15).
ORDERED and ADJUDGED as follows:
1. The Defendant’s ore tenus Amended Motion for Partial Summary Disposition is GRANTED, in part, as stated above.
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