21 Fla. L. Weekly Supp. 356a
Online Reference: FLWSUPP 2104DUBBInsurance — Personal injury protection — Standing — Assignment — Where assignment was made to individual physician, not to corporate plaintiff, plaintiff lacks standing to bring suit
TURNER ORTHOPEDICS, P.A., a/a/o PAMELA DUBBS, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 13-CC-000585, Division J. December 16, 2013. Honorable Gaston Fernandez, Judge. Counsel: Adam Saben, Miami, for Plaintiff. William E. Kirilloff, Oxendine & Oxendine, P.A., Tampa, for Defendant.
ORDER GRANTING DEFENDANT STATE FARMMUTUAL AUTOMOBILE INSURANCE COMPANY’SMOTION FOR SUMMARY JUDGMENT
THIS CAUSE, having come before this Honorable Court on Defendant’s Motion for Summary Judgment heard on December 04, 2013, and the Court, after having reviewed the file, heard arguments of counsel, and having been fully advised in the premises, finds as follows:BACKGROUND
This is an action for personal injury protection (“PIP”) benefits arising out of a motor vehicle accident which occurred on February 12, 2008. The insured, PAMELA DUBBS, maintained a policy contract of insurance with the Defendant, State Farm Mutual Automobile Insurance Company, that provided PIP coverage. The named Plaintiff, Turner Orthopedics, P.A., filed its Complaint alleging breach of contract and entitlement to PIP benefits under the policy issued to the insured, PAMELA DUBBS. Attached to the Plaintiff’s Complaint is a document titled “Assignment of Rights, Benefits and Causes of Action.” This document purports to assign “any and all causes of action available under [Pamela Dubbs’s] policy of automobile insurance to the assignees.” The assignee in this case is referenced as Fred Turner, MD. This same document was attached to the March 08 2012, correspondence sent by the Plaintiff to the Defendant which purported to be a demand letter pursuant to Florida Statute Section 627.736(10). As such, Defendant argues that Turner Orthopedic, P.A. does not have standing to pursue this cause of action. This Court agrees.
ANALYSIS
Defendant contends that, since the assignment lists Fred Turner, M.D. as the assignee and not Turner Orthopedics, P.A., that only Fred Turner can bring suit under the assignment. Plaintiff raises three main arguments in response to Defendant’s contention: first, that the Plaintiff is the real party in interest and should therefore be considered the appropriate entity to bring suit; second, that Defendant lacks standing to challenge the Plaintiff’s assignment; and third, that Defendant is in no danger of having multiple claims brought against it by both the Plaintiff and Dr. Turner.
Florida Statute Section 627.736(10) requires that, along with a valid written notice of intent to initiate litigation, the Plaintiff must include a copy of the assignment giving rights to the claimant if the claimant is not the insured. Without a valid assignment, a claimant lacks standing, and the Court lacks subject matter jurisdiction. See Partners in Health Palm Beach, Inc., A Florida Corp. (a/a/o Roosevelt Labastille) v. Progressive American Ins. Co., 14 Fla. L. Weekly Supp. 984a (17th Cir. Broward Cty. Ct. 2007)(citing Hartford Ins. Co. v. St. Mary’s Hosp., Inc., 771 So.2d 1210 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D2523a]. Thus, it is critically important that when there is an assignment that it be clear on its face to whom the assignment is made.
This Court agrees with Judge Miller in the Partners case; that it is critical that the proper party plaintiff be involved in the lawsuit. One reason is because, for purposes of res judicata, the Court has to look to whether there is a unity of the parties. If in one action Dr. Turner sues State Farm and in a subsequent action Turner Orthopedics, P.A. sues State Farm, res judicata would not apply.
Despite the representation of Turner Orthopedics, P.A. that Dr. Turner is still the real party in interest in this action, it remains that Turner Orthopedics, P.A. prevailing in this action would not impede Dr. Turner from subsequently filing an action seeking the same claim against State Farm. Florida law is clear that a corporate entity is separate and distinct from that of its owner. Any attempt by State Farm to raise res judicata as a defense would fail as there would be no unity of the parties. According to Florida law, only one party “ ‘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 Mut. Auto. Ins. Co., 781 So.2d 469, 470 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D702a]. In this case, that party is Dr. Turner. Additionally, the Court finds that the affidavit of Fred Turner, MD of his desire to not sue State Farm in his individual capacity is unavailing.
Plaintiff contends that if the Court found that [Dr. Turner] was not the real party in interest, [he] would have to find every patient where the Plaintiff’s bill was not properly paid and ask said patient/claimant to file a lawsuit, seek counsel and properly and actively and sincerely litigate a lawsuit for unpaid PIP benefits on behalf of the Plaintiff to get its bills paid. This is not the case. A medical provider must obtain a valid assignment in order to file suit against an insurer. If the benefits and rights under the policy are not assigned from the insured to the provider, or, if the assignment is found to be invalid, the provider still maintains its right to pursue payment from the insured patient directly.
Accordingly, it is ORDERED and ADJUDGED that Defendant’s Motion for Summary Judgment is GRANTED and Plaintiff’s Cross-Motion for Summary Judgment on Standing is DENIED.
FINAL JUDGMENT
The Court enters Final Judgment in favor of the Defendant and Plaintiff, Turner Orthopedics, P.A. shall take nothing in this action and the Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY shall go hence without day. The Court reserves jurisdiction on the issue of attorneys’ fees and costs.
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