22 Fla. L. Weekly Supp. 1109a
Online Reference: FLWSUPP 2209LJOHInsurance — Personal injury protection — Standing — Assignment — Where assignment of benefits or documents supporting equitable assignment are not attached to medical provider’s complaint, complaint is dismissed without prejudice to provider amending complaint by attaching assignment
KAGAN, JUGAN & ASSOCIATES, P.A., a/a/o LESLIE JOHNSON, Plaintiff, vs. STATE FARM FIRE & CASUALTY COMPANY, Defendant. County Court, 20th Judicial Circuit in and for Lee County, Small Claims Action. Case No. 15-SC-93. April 20, 2015. Maria E. Gonzalez, Judge. Counsel: Jack Morgan and Clayton Crevasse, Roetzel and Andress, Fort Myers; and Michael McQuagge, The McQuagge and King Law Firm, Fort Myers, for Plaintiff. Stephanie S. Hoffman, Conroy Simberg, Fort Myers, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
THIS CAUSE comes before the Court on Defendant’s “Motion To Dismiss,” filed February 4, 2015. Having reviewed the motion, Plaintiff’s response, the case file, and the applicable law, and having heard argument by the parties on February 11, 2015, the Court finds as follows:
1. Plaintiff filed a complaint for breach of contract on January 6, 2015.
2. Defendant filed its motion to dismiss on February 4, 2015, alleging that Plaintiff did not have standing, and thus the Court did not have subject matter jurisdiction.
3. A hearing was held on the motion to dismiss on February 11, 2015. Defendant argued that an assignment of benefits was not attached to the complaint, and thus Plaintiff could not prove standing. Plaintiff argued that it was not required to attach the assignment of benefits, citing Parkway Gen. Hosp., Inc. v. Allstate Ins. Co., 393 So. 2d 1171 (Fla. 3d DCA 1981) and Mankowitz, D.C., P.A. v. Allstate Ins. Co., 8 Fla. L. Weekly Supp. 648a (Fla. Sarasota Cty. Ct. 2001).
4. However, the Court is bound by the decisions of the Second District Court of Appeal. Defendant cited Progressive Express Insurance Co. v. McGrath Community Chiropractic, 913 So. 2d 1281 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D2622b], in which the Second District held that “the assignment of PIP benefits is not merely a condition precedent to maintain an action on a claim held by the person or entity who filed the lawsuit. Rather, it is the basis of the claimant’s standing to invoke the processes of the court in the first place.” Id. at 1285. While Plaintiff cites to rule 1.130 of the Rules of Civil Procedure, neither party has moved to have that rule applied in this small claims case. To the extent an equitable assignment was alleged in the complaint, the concurring opinion of the Second District noted that the “Provider would have been well advised to attach to its statement of claim any written documents supporting its cause of action based on an equitable assignment to ensure compliance with Florida Small Claims Rule 7.050(a)(1).” Id. at 1289 N. 3. Taking direction from the Second District, the Court finds that attachment of the assignment of benefits or documents supporting an equitable assignment must be attached to the complaint. This Court finds that it is unable to determine if Plaintiff has standing to maintain this suit, and thus unable to ascertain if it has subject matter jurisdiction, without attachment of the assignment of benefits to the complaint.
Accordingly, it is
ORDERED AND ADJUDGED that Defendant’s motion to dismiss is GRANTED. The complaint is dismissed, without prejudice for Plaintiff to amend the complaint by attaching the assignment of benefits.
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