21 Fla. L. Weekly Supp. 700a
Online Reference: FLWSUPP 2107AMORInsurance — Insurer entitled to summary judgment where medical provider brought suit against wrong insurer
MDC CHIROPRACTIC, INC. A/A/O MARCUS AMORIM, Plaintiff, v. ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No: 2012-CC-17578. February 10, 2014. Honorable Nancy Perez, Judge. Counsel: Donald J. Masten, Masten, Peterson & Denbo, LLC, Orlando, for Plaintiff. Chad Barr, Eiffert & Associates, P.A., Orlando, for Defendant.
FINAL JUDGMENT ON DEFENDANT’SMOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come before the Court on December 4, 2013 on Defendant’s Motion for Summary Judgment, and the Court, having heard argument of counsel, and being otherwise fully advised of the premises, the court makes the following findings:
1. Allstate Property and Casualty Insurance Company did not insure Amorim Marcus for the motor vehicle accident which is the subject of this lawsuit.
2. Pursuant to the affidavit of Grace Ellis, attached as Exhibit “A,” to Allstate Property and Casualty Insurance Company’s Motion for Summary Judgment filed June 18, 2013, the proper party in the instant action is Allstate insurance Company.
3. Defendant, Allstate Property and Casualty Insurance Company has advised Plaintiff as to the correct party in this matter on numerous occasions.
4. Through correspondence on October 8, 2009, Plaintiff was informed that Allstate Insurance Company issued the policy of insurance at issue in this case. This correspondence was filed with the court July 24, 2013.
5. In its Answer and Affirmative Defenses filed June 17, 2013, Allstate Property and Casualty Insurance Company stated Allstate Insurance Company was the correct party.
6. On June 17, 2013, Allstate Property and Casualty Insurance Company served its F.S. §57.105 Motion for Entitlement to Attorney’s Fees and Cost, again stating that Allstate Property and Casualty Insurance Company was not the correct party in this case.
7. On October 30, 2013, Allstate Property and Casualty Insurance Company filed the Policy of Insurance at issue in this case that repeatedly names Allstate Insurance Company as the correct party.
8. Plaintiff went so far as to set the deposition of the corporate representative of the wrong party after being advised of the correct party.
9. Plaintiff has denied that it brought suit against the wrong party on several occasions despite notice to the contrary. On June 18, 2013, Plaintiff served its Reply to Defendant’s Answer and Affirmative Defenses, denying “each and every allegation. . . contained therein.” The only defense listed was that Plaintiff had served the wrong company. On July 16, 2013, Plaintiff served its Response to Defendant’s Request for Admissions. In response to request for admission number two, (“Admit that Defendant, through its counsel and via letter dated October 8, 2009, advised Plaintiff, through its counsel, Eiffert & Associates, that it did not issue a policy of insurance to Marcus Amorim.”), Plaintiff responded “After a reasonable inquiry, the information known or readily available to Plaintiff is insufficient to admit or deny.” This is in light of the letter sent October 8, 2009 to Plaintiff’s counsel. In response to request for admission number four, (Admit that Plaintiff, through its counsel, Eiffert & Associates, filed suit against an incorrect insurance party in the instant action.”), Plaintiff responded “Denied as phrased as Plaintiff has filed an Amended Complaint.” Plaintiff had already amended the caption in this response without leave of court granting the Motion to Amend.
10. Allstate Property and Casualty insurance Company and Allstate Insurance Company are separate and distinct corporate entities.
11. In One Call Property Services Inc. (A/A/O Sally Hubbard) v. USAA Casualty Insurance Company, 20 Fla. L. Weekly Supp. 829b, the court held that the substitution of one entirely separate and distinct legal entity for another does not involve the mere correction of a scrivener’s error. Therefore, the court denied Plaintiff’s motion for leave to amend its complaint. This case is nearly identical to the case before this court.
12. Since the is no genuine issue of material fact at issue, as a matter of law Allstate Property and Casualty Insurance Company is entitled to summary judgment.
It is hereby ORDERED and ADJUDGED that Defendant’s Motion for Summary Judgment is hereby GRANTED. The Court shall reserve jurisdiction as to Defendant’s attorney’s fees and costs associated with defending this case before the Court, and for such other relief as this Honorable Court deems just and proper.
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