23 Fla. L. Weekly Supp. 61a
Online Reference: FLWSUPP 2301HENRInsurance — Personal injury protection — Standing — Fictitious name — Insurer’s motion for summary judgment based on medical provider suing under registered fictitious name is denied where insurer did not make specific negative averment challenging provider’s capacity to sue, invoice and explanation of reimbursement reveal that parties utilized provider’s fictitious name in conducting their business, and Fictitious Name Act provides statutory basis for properly registered fictitious name to file suit
FLORIDA HOSPITAL MEDICAL CENTER, as assignee of Luis Henriquez, Plaintiff, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2014-SC-11036-O. March 13, 2015. Tina L. Caraballo, Judge. Counsel: William England, Bradford Cederberg, P.A., Orlando, for Plaintiff. David R. Hwalek, Tampa, for Defendant.
ORDER DENYING DEFENDANT’S MOTIONFOR FINAL SUMMARY JUDGMENT
THIS MATTER having come before the Court on March 6, 2015 upon Defendant’s Motion for Final Summary Judgment related to Plaintiff’s use of its fictitious name and the Court having heard arguments of counsel and being otherwise fully advised in the premises, finds as follows:
1. This is a claim for PIP benefits arising out of emergency services provided by the Plaintiff in this matter, Florida Hospital Medical Center, to Defendant’s United Services Automobile Association (“USAA”)’s insured, Luis Henriquez, following a motor vehicle collision that occurred on or about June 5, 2014.
2. There is no dispute that Florida Hospital Medical Center is, and has been, at all times material hereto, a properly registered fictitious name for Adventist Health System/Sunbelt Inc. § 865.090, Fla. Stat.
3. Defendant responded to the complaint by asserting “without knowledge, therefore denied” in response to Plaintiff’s allegation that it was a domestic corporation licensed to conduct business in Orange County, Florida.
4. Florida Rule of Civil Procedure 1.120(a) requires a specific negative averment when challenging capacity to sue. “A denial based on lack of knowledge is not sufficient to state a specific negative averment.” Sun Valley Homeowners, Inc. v. Am. Land Lease, Inc., 927 So. 2d 259, 261 (Fla. 2d DCA 2006) [31 Fla. L. Weekly D1289a]. Accordingly, the issue has been waived. Cor-Gal Builders, Inc. v. Southard, 136 So. 2d 244, 246 (Fla. 3d DCA 1962).
5. The proper challenge to capacity is a motion to dismiss or a motion to strike. Wittington Condo. Apartments Inc., v. Braemar Corp., 313 So. 2d 463 (Fla. 4th DCA 1975).
6. The proper remedy if the fictitious name has not been registered is abatement. § 865.09(9)(a), Fla. Stat.; Jackson v. Jones, 423 So. 2d 972, 973 (Fla. 4th DCA, 1983)(“Until a party involved in litigation complies with the fictitious name statute his action will be abated until compliance is affected.”).
7. While not properly authenticated summary judgment evidence, the Court notes that the Court file contains the invoice for the medical services provided at issue in the case and it is in the name “Florida Hospital Med Center.” The Explanation of Reimbursement identifies the billing provider as “Florida Hosp Med Center.” There is no question the parties utilized the properly registered fictitious name in conducting their respective business. Worm World, Inc. v. Ironwood Productions, Inc., 917 So. 2d 274, 275 (Fla. 1st DCA 2005) [30 Fla. L. Weekly D2850b].
8. The Defendant asserts that there is no Florida statute that permits a fictitious name to maintain a lawsuit as it is a legal nullity. The Court disagrees. It is illogical to assert that if a judgment were entered against Florida Hospital Medical Center, that the Defendant would have no means of enforcing that judgment. Florida Statute 865.09 contains the “Fictitious Name Act”. Section (9) of the Act, entitled PENALTIES.- indicates, “(a) If a business fails to comply with this section, the business, its members and those interest in doing such business may not maintain any action, suit, or proceeding in any court of this state until this section is complied with. (emphasis added). The wording of the statute presupposes that if a business has complied with this statute, it may maintain an action, suit or proceeding. Accordingly, it is
ORDERED AND ADJUDGED that the fictitious name statute provides a statutory basis for a properly registered fictitious name to file and maintain a lawsuit and the Defendant’s Motion for Summary Judgment is DENIED.
