22 Fla. L. Weekly Supp. 1082c
Online Reference: FLWSUPP 2209FUTRInsurance — Personal injury protection — Standing — Assignment — No merit to insurer’s contention that, because insured assigned benefits to both physician individually and professional association owned by physician, association lacks standing to bring suit for PIP benefits — Summary judgment is precluded by disputed issues of material fact as to whether physician or association maintains standing to bring action and whether insured intended to assign benefits to physician or to association — Complaint — Amendment — Leave is granted to amend complaint to name physician as plaintiff
TURNER ORTHOPEDICS, PA A/A/O ESTELLE FUTRELL, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 12th Judicial Circuit in and for Manatee County. Case No. 2013-SC-864-01. March 31, 2015. Honorable Robert A. Farrance, Judge. Counsel: Philip McCormick, Shuster & Saben, St. Petersburg, for Plaintiff. Anthony J. Parrino, Reynolds, Parrino, Spano & Shadwick, P.A., St. Petersburg, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FORFINAL SUMMARY JUDGMENT AND MEMORANDUM OF LAW IN SUPPORT; ORDER GRANTING PLAINTIFF’S MOTION TO AMEND COMPLAINT
This matter is before the Court on the Defendant’s Motion for Final Summary Judgment and Memorandum of Law in Support, filed on August 27, 2014, pursuant to Fla. R. Civ. P. 1.510; and the Plaintiff’s Motion to Amend Complaint to Correct Misnomer of Party-Plaintiff; or Alternatively, to Amend Complaint to Name Proper Party-Plaintiff, filed on September 4, 2014, pursuant to Fla. R. Civ. P. 1.190. On January 12, 2015, the Court held a hearing on both Motions. The Court has reviewed the Motions, the Court file, the applicable law, considered oral argument from counsel, and is otherwise duly advised in the premises.Case History
On March 6, 2013, Turner Orthopedics, P.A., the Plaintiff, brought suit to recover unpaid and overdue personal injury protection (“PIP”) and/or medical payments allegedly owed to that entity arising out of treatment provided to Estelle Futrell, pursuant to a policy of automobile insurance. On August 27, 2014, State Farm Mutual Automobile Insurance Company, the Defendant, filed Defendant’s Motion for Final Summary Judgment and Memorandum of Law in Support. On September 4, 2014, the Plaintiff filed Plaintiff’s Motion to Amend Complaint to Correct Misnomer of Party-Plaintiff; or Alternatively, to Amend Complaint to Name Proper Party-Plaintiff.Defendant’s Motion for Final Summary Judgment
In the Defendant’s Motion for Final Summary Judgment, the Defendant contends that the Plaintiff lacks standing to bring the instant suit because the document purporting to assign Estelle Futrell’s PIP benefits to the Plaintiff is invalid, because “it assigns the same cause of action to two separate entities and therefore res judicata does not apply.” Specifically, the Defendant contends that the document assigning Ms. Futrell’s PIP benefits lists both Fred Turner, M.D., and Turner Orthopedics, P.A., as the “assignees.” The Defendant contends that it is impossible for both Dr. Turner and Turner Orthopedics, P.A. to be the “assignees” of Ms. Futrell’s PIP benetifs, since PIP benefits cannot be held simultaneously by more than one entity or person.1 Finally, the Defendant contends that the Plaintiff’s lack of standing is a defect that cannot be cured by the acquisition of standing after the case has been filed. Accordingly, the Defendant claims that it is entitled to summary judgment on the issue of standing as a matter of law.2
Upon the filing of a motion for summary judgment by one of the parties to a civil action, “[t]he judgment sought shall be rendered forthwith if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”3 “Florida Rule of Civil Procedure 1.510 places the burden of proof at summary judgment on the movant, regardless of who has the burden at trial.”4 “In Florida, the trial judge may not award a summary judgment unless no material fact is in dispute.”5 Under this standard, “[a] summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.”6 Additionally, when one party to a cause of action moves for summary judgment, “the court must draw every possible inference in favor of the party against whom a summary judgment is sought.”7
In the present case, the Court notes that the document purporting to assign Ms. Futrell’s PIP benefits is somewhat ambiguous, since it clearly lists both Dr. Fred Turner, M.D., and Turner Orthopedic, P.A., as the “assignees.” The Court agrees with the Defendant’s contention that the right to bring a cause of action against Ms. Futrell’s insurance carrier for her PIP benefits can only be held by one person or entity at any given time. The Court disagrees, however, that the Defendant is entitled to summary judgment as a matter of law on the issue of standing at this time.
The Court finds that each of the cases relied on in the Defendant’s present Motion are distinguishable from the facts presented in this case. In McGrath, and Oglesby, the underlying facts involved situations where it was unclear whether the insured person, or the medical provider possessed the right to file a cause of action for payment of the insured person’s PIP benefits following a purported assignment of those benefits.8 In those cases, it was unclear whether the person insured under the insurance policy had effectively assigned the PIP benefits to the medical provider, or whether the insured person retained those rights. As a result, the issue of standing in those cases hinged on (1) who filed the lawsuit to recover the PIP benefits from the insurance company, and (2) who actually maintained standing to file a lawsuit to recover the PIP benefits as a result of the attempted assignment of those benefits.
In the present case, however, the facts are different. The parties do not dispute that Ms. Futrell does not retain any right to file a claim for payment of her PIP benefits following her purported assignment of those benefits to the “assignees.” Similarly, the parties do not dispute that Turner Orthopedics, P.A., the entity presently named as the Plaintiff in this lawsuit, is named in the document purporting to assign Ms. Futrell’s PIP benefits as one of the two “assignees.” Accordingly, while it remain unclear at this point which of the “assignees” maintains standing to file a lawsuit for recovery of Ms. Futrell’s PIP benefits, the Court finds that it cannot presently conclude that Turner Orthopedics, P.A. lacks standing to maintain the present lawsuit as a matter of law.
Turner Orthopedics, P.A. is in fact named as one of the assignees in the document executed by Ms. Futrell in conjunction with her attempt to assign her PIP benefits to her medical provider. The Court agrees that the document executed by Ms. Futrell is ambiguous, and that it remains unclear whether Ms. Futrell intended to assign her PIP benefits to Dr. Fred Turner personally, Turner Orthopedics, P.A. as an entity, or possibly both, under the assumption that Dr. Turner and the entity were one and the same. The Court also agrees that both Dr. Fred Turner and Turner Orthopedics, P.A., cannot simultaneously have standing to file a lawsuit to recover Ms. Futrell’s PIP benefits. The Court finds, however, that ambiguity regarding the identity of the actual assignee of an insured’s PIP benefits is generally indicative of a factual dispute which precludes the entry of summary judgment, which may also be easily rectified later on in the proceedings.9
After careful consideration, the Court finds that material facts remain disputed by the parties in this case with respect to: (1) whether Dr. Fred Turner, or Turner Orthopedics, P.A., maintains standing to pursue a lawsuit to recover Ms. Futrell’s PIP benefits, and (2) who Ms. Futrell actually intended to assign her PIP benefits to. Accordingly, the Defendant’s Motion for Final Summary Judgment and Memorandum in Support will be denied.Plaintiff’s Motion to Amend Complaint
In the Plaintiff’s Motion, the Plaintiff seeks to amend its Complaint “to correct a misnomer in the name of the current Party-Plaintiff, ‘Turner Orthopedics, P.A.,’ to ‘Fred Turner, M.D.’ ” In the alternative, the Plaintiff seeks permission to amend its Complaint “to name the supposedly proper plaintiff in this action ‘Fred Turner, M.D.’ ” The Plaintiff contends that it is entitled to make such amendments to its original Complaint pursuant to the misnomer doctrine, and that such amendments should relate back to the date the original Complaint was filed in this case. 10
It is the policy of Florida courts to grant leave to amend pleadings liberally, in the interest of facilitating a determination of the claims asserted by the parties on the merits.11 “A court should grant a party leave to amend the complaint ‘unless the privilege of amendment has been abused or it is clear that the complaint cannot be amended to state a cause of action.’ ”12 Similarly, leave to amend to add a counterclaim should be liberally granted.13 If a party seeks leave to amend a pleading prior to, or at a hearing on a motion for summary judgment, the court should be especially liberal when granting leave to amend.14
Under the circumstances presented in this case, the Court finds it appropriate to grant the Plaintiff’s Motion to Amend the Complaint to correct the name of the designated Plaintiff. The Court finds that the Defendant will not suffer any prejudice by allowing the Plaintiff to amend its Complaint, particularly in light of the Court’s ruling that it remains unclear whether Dr. Fred Turner or Turner Orthopedics, P.A. maintains standing to bring this suit as the proper assignee of Ms. Futrell’s PIP benefits. The amendment sought by the Plaintiff is intended only to correct the name of the party listed as the Plaintiff in this case, without altering any of the substantive factual allegations made in the Complaint itself.
Accordingly, the Plaintiff’s Motion to Amend the Complaint will be granted, the Plaintiff will be permitted to amend the name of the party listed as the Plaintiff in this action, and such amendment will relate back to the date the original Complaint was filed.15
Based on the foregoing, it is therefore,
ORDERED AND ADJUDGED that:
1. The Defendant’s Motion for Final Summary Judgment and Memorandum of Law in Support is DENIED.
2. The Plaintiff’s Motion to Amend Complaint to Correct Misnomer of Party-Plaintiff; or Alternatively, to Amend Complaint to Name Proper Party-Plaintiff is GRANTED.
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1See Progressive Exp. Ins. Co. v. McGrath Community Chiropractic, 913 So. 2d 1281, 1285 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D2622b] (“At any one time, only the insured or the medical provider ‘owns’ the cause of action against the insurer for PIP benefits.”); Oglesby v. State Farm Mut. Auto. Ins. Co., 781 So. 2d 469, 470 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D702a] (“In any event, 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.”).
2See Progressive Exp. Ins. Co. v. McGrath Community Chiropractic, 913 So. 2d at 1285 (“[T]he plaintiff’s lack of standing at the inception of the case is not a defect that may be cured by the acquisition of standing after the case is filed.”).
3Fla. R. Civ. P. 1.510; see also Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a] (“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law”).
4Nowicki v. Cessna Aircraft Co., 69 So. 3d 406, 409 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D2082a].
5See Robinson v. State Farm Fire & Cas. Co., 583 So. 2d 1063, 1066 (Fla. 1st DCA 1991); see also Holl v. Talcott, 191 So. 2d 40 (Fla. 1966); see also Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d at 130.
6See Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985) (citing Shaffran v. Holness, 93 So. 2d 94 (Fla. 1957)).
7See Moore v. Morris, 475 So. 2d at 668. (citing Wills v. Sears, Roebuck & Co., 351 So. 2d 29 (Fla. 1977)).
8See Progressive Exp. Ins. Co. v. McGrath Community Chiropractic, 913 So. 2d at 1285 (“If on the date the Provider filed the original statement of claim Mr. Joseph had not assigned benefits to the Provider, only Mr. Joseph had standing to bring the action. It follows that the Provider would have lacked standing under these circumstances, and the case should have been dismissed.”); see also Oglesby v. State Farm Mut. Auto. Ins. Co., 781 So. 2d at 470 (“This is a case, as is most often the case, in which the medical provider agrees to perform services based only on an unqualified assignment of medical benefits on the condition that the patient will be ultimately responsible for any medical bills either not covered by the policy or simply not paid by the insurer. If at some point the medical provider decides to forego a claim against the insurer and instead look to the insured, a condition precedent to such action should be the reassignment of the medical benefits under the insurance policy to the insured. Here, after almost four years, the medical provider has shown no interest in pursuing the insured or the insurer for anything. In any event, 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.”).
9See Gables Ins. Recovery, Inc. v. Seminole Cas. Ins. Co., 10 So. 3d 1106, 1107-08 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D672b] (“[W]e find that the trial court’s conclusion that the initial assignment is ambiguous acknowledges the existence of a fact issue which precludes summary judgment. . .We also note that any ambiguity regarding the identity of the initial assignee is easily rectified.”).
10See Arch Specialty Ins. Co. v. Kubicki Draper, LLP, 137 So. 3d 487, 490-91 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D640a].
11See Fla. R. Civ. P. 1.190; see also EAC USA, Inc. v. Kawa, 805 So. 2d 1, 5 (Fla. 2d DCA 2001) [26 Fla. L. Weekly D1706b] (“Public policy favors the liberal amendment of pleadings so that cases may be decided on their merits.”) (citing Craig v. East Pasco Medical Center, Inc., 650 So. 2d 179, 180 (Fla. 2d DCA 1995) [20 Fla. L. Weekly D395b]); see also Thompson v. Publix Supermarkets, Inc., 615 So. 2d 796, 797 (Fla. 1st DCA 1993) (“Although granting leave to amend rests within the sound discretion of the trial court, all doubts should be resolved in favor of allowing amendment.”) (quoting Adams v. Knabb Turpentine Co., 435 So. 2d 944, 946 (Fla. 1st DCA 1983)).
12Moore v. Liberty Mut. Ins. Co., 988 So. 2d 1285, 1286 (Fla. 2d DCA 2008) [33 Fla. L. Weekly D2074a] (quoting Trotter v. Ford Motor Credit Corp., 868 So. 2d 593, 595 (Fla. 2d DCA 2004) [29 Fla. L. Weekly D548b]); see also Carter v. Ferrell, 666 So. 2d 556, 557 (Fla. 2d DCA 1995) [20 Fla. L. Weekly D2745c] (“While we recognize that a trial court’s ruling on an amendment rests within its sound discretion, refusal to allow an amendment constitutes an abuse of discretion unless it clearly appears that the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile.”).
13See Three Palms Associates v. U.S. No. 1 Fitness Centers, Inc., 984 So. 2d 540 (Fla. 4th DCA 2008) [33 Fla. L. Weekly D1047a] (“Leave to amend to add a counterclaim should be liberally granted.”) (quoting Fuente v. Southern Ocean Transport, Inc., 933 So. 2d 651, 654 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D609a]).
14See Laurencio v. Deutsche Bank Nat. Trust Co., 65 So. 3d 1190, 1193 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D1600b] (“Courts should be especially liberal when leave to amend ‘is sought at or before a hearing on a motion for summary judgment.’ ”) (quoting Gate Lands Co. v. Old Ponte Vedra Beach Condo., 715 So. 2d 1132, 1135 (Fla. 5th DCA 1998) [23 Fla. L. Weekly D1955b]).
15See Fla. R. Civ. P. 1.190(c) (“Relation Back of Amendments. When the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading.”); see also Arch Specialty Ins. Co. v. Kubicki Draper, LLP, 137 So. 3d at 490-91; see also Arnwine v. Huntington Nat. Bank, N.A., 818 So. 2d 621, 624 (Fla. 2d DCA 2002) [27 Fla. L. Weekly D1335a] (“[T]he addition of a new party will relate back when the new party is sufficiently related to the original party that the addition will not prejudice the new party.”) (emphasis added); see also Kozich v. Shahady, 702 So. 2d 1289, 1291 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D2251a] (“The addition of a party, however, does relate back where the new and former parties have an identity of interest which does not prejudice the opponent.”); see also Flores v. Riscomp Industries, Inc., 35 So. 3d 146, 147-48 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D1190a] (“To relate back, the claim must arise out of the same ‘conduct, transaction, or occurrence.’ . . .We have articulated the test to be whether ‘the original pleading gives fair notice of the general fact situation out of which the claim or defense arises.’ ”) (emphasis in original).
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