23 Fla. L. Weekly Supp. 970a
Online Reference: FLWSUPP 2309GUILInsurance — Personal injury protection — Complaint — Amendment — Substitution of plaintiff — Motion to amend complaint to substitute medical provider that is entirely separate and distinct legal entity from plaintiff medical provider is denied — Further, amendment would be futile since relation back doctrine of rule 1.190(c) does not apply and statute of limitations has elapsed
FLORIDA WELLNESS & REHAB CENTER OF HOMESTEAD a/a/o EUNICE GUILLOT, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 11-006206 COSO 62. February 9, 2016. Terri-Ann Miller, Judge. Counsel: Todd A. Landau, Todd Landau, P.A., Hallandale Beach; and Garrett T. Zediker, Zediker & Associates, P.A., Miami, for Plaintiff. Elinis M. Sequeira and Edward N. Winitz, Conroy Simberg, P.A., Hollywood, for Defendant.
ORDER ON PLAINTIFF’S MOTION FORLEAVE TO AMEND COMPLAINT
THIS CAUSE having come before the Court on December 17, 2015 on Plaintiff’s Motion for Leave to Amend Complaint and on Defendant’s Memorandum of Law in Opposition to same, having heard argument of counsel and reviewed the Court file and applicable law, and being otherwise fully advised in the premises thereof, the Court finds as follows:FACTS
On or about August 24, 2011, Plaintiff filed its initial Complaint for Personal Injury Protection benefits, in which Plaintiff was named as Florida Wellness & Rehab Center of Homestead. Plaintiff then filed an Amended Complaint on or about June 5, 2013, wherein it again named the Plaintiff as Florida Wellness & Rehab Center of Homestead.
On or about February 17, 2014, Defendant filed a Proposal for Settlement pursuant to Florida Statute § 768.79 and Fla. R. Civ. P. 1.442. The Proposal for Settlement was made out to Plaintiff, Florida Wellness & Rehab Center of Homestead.
Subsequently, on August 18, 2015, Defendant took the deposition of Plaintiff’s, Florida Wellness & Rehab Center of Homestead, corporate representative. Testimony at the deposition indicated that Plaintiff did not provide any treatment to Eunice Guillot, that the treatment was rendered by Florida Wellness & Rehabilitation Center, Inc., and that Florida Wellness & Rehab Center of Homestead and Florida Wellness & Rehabilitation Center, Inc. are two completely separate and distinct legal entities with different corporate names, tax identification numbers, and owners. The testimony is corroborated by the corporate filings by Florida Wellness & Rehab Center of Homestead and Florida Wellness & Rehabilitation Center, Inc., indicating that each entity has different corporate names, tax identification numbers, and owners. In response, Defendant filed a Motion for Attorney’s Fees and Costs Pursuant to Florida Statute § 57.105 against Plaintiff, Florida Wellness & Rehab Center of Homestead on or about November 25, 2015.
Plaintiff now seeks to amend its Complaint a second time to substitute Plaintiff as Florida Wellness & Rehabilitation Center, Inc.ANALYSIS
Contrary to Plaintiff’s assertions, Plaintiff’s proposed amendment is not a correction to a mere scrivener’s error under Rule 1.190, but rather, a substitution of one entirely separate and distinct legal entity for another. Florida Courts have consistently ruled that the substitution of an entirely separate and distinct legal entity in the place of another does not involve the correction of a mere scrivener’s error or misnomer. G.B. Holdings, Inc. v. Steinhauser, 862 So.2d 97 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D2660b]; Lindsey v. H.H. Raulerson Jr. Mem’l Hosp., 505 So.2d 577 (Fla. 4th DCA 1987); Michelin Reifenwerke, A.G. v. Roose, 462 So.2d 54 (Fla. 4th DCA 1984); Rayner v. Aircraft Spruce-Advantage, Inc., 38 So.3d 817 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D1346a]; Johnson v. Taylor Rental Ctr., Inc., 458 So.2d 845 (Fla. 2d DCA 1984); One Call Prop. Serv., Inc. (a/a/o Sally Hubbard) v. USAA Cas. Ins. Co., 20 Fla. L. Weekly Supp. 829b (19th Jud. Cir. Ct. 2013); MDC Chiropractic, Inc. (a/a/o Marcus Amorim) v. Allstate Prop. & Sec. Ins. Co., 21 Fla. L. Weekly Supp. 699a (15th Jud. Cir. Ct. 2014); compare Arch Specialty Ins. Co. v. Kubicki Draper, LLP, 137 So.3d 487 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D640a] (allowing plaintiff’s leave to amend complaint where the proposed substituted party was previously named in the underlying action, which is distinguishable to the case at issue as Plaintiff’s proposed substituted party has never been previously named in this action and there is no underlying action).
Although two entities may share several things in common, “they are irrefutably separate and distinct legal entities as demonstrated by their different corporate names and federal tax identification numbers.” One Call Prop. Serv., 20 Fla. L. Weekly Supp. 829b. Additionally, entities are “entirely separate and unrelated companies” when the entities are not functioning through the same management structure or where a fictitious name is not registered between the entities. G.B. Holdings, 862 So.2d at 99. However, “[c]orporations are treated as separate entities notwithstanding common shareholders and officers.” Am. Injury Ctr., Inc. (a/a/o Richard Bonner) v. USAA Gen. Indem. Co., 22 Fla. L. Weekly Supp. 1085a (12th Jud. Cir. Ct. 2015). What is more, when “[t]here is no indication of any connection between the two corporations[,] . . . [a]lthough they carry liability insurance with the same company and are represented by the sane attorney, these facts do not change the relationship.” Johnson, 458 So.2d at 846. “To permit a substitution at this point would be tantamount to introducing ‘new parties’ into the lawsuit . . . .” Garrido v. Markus, Winter & Spitale Law Firm, 358 So.2d 577, 583 (Fla. 3d DCA 1978); see Stratton of Fla., Inc. v. Woolley, 711 So.2d 597 (Fla. 4th DCA 1998).
In her sworn statements at deposition, Plaintiff’s, Florida Wellness & Rehab Center of Homestead, corporate representative, stated that Plaintiff did not provide any treatment to Eunice Guillot, that the treatment was rendered by Florida Wellness & Rehabilitation Center, Inc., and that Florida Wellness & Rehab Center of Homestead and Florida Wellness & Rehabilitation Center, Inc. are two completely separate and distinct legal entities with different corporate names, tax identification numbers, and owners. Her testimony is corroborated by the corporate filings by Florida Wellness & Rehab Center of Homestead and Florida Wellness & Rehabilitation Center, Inc., indicating that each entity has different corporate names, tax identification numbers, and owners. Therefore, Plaintiff’s proposed amendment is a substitution of one entirely separate and distinct legal entity for another, rather than a correction to a mere scrivener’s error.
Moreover, Plaintiff is precluded from amending its Complaint to substitute one Plaintiff for another, as the substitution Plaintiff seeks is impermissible. Fla. R. Civ. P. 1.260 provides the specific circumstances wherein a party may be substituted in an action. The Rule provides for a substitution of parties only in the event of: (a) the death of a party; (b) the incompetency of a party; (c) the transfer of interest; or (d) the public officer’s death or separation from office. Fla. R. Civ. P. 1.260.
Accordingly, substitution is impermissible and a plaintiff is precluded from amending a complaint to substitute one party for another when Rule 1.260 has not been satisfied. One Call Prop. Serv., 20 Fla. L. Weekly Supp. 829b (“[d]espite Florida’s liberal amendment standard, such a substitution is impermissible”); Am. Injury Ctr., 22 Fla. L. Weekly Supp. 1085a (where Rule 1.260 is not met, a Plaintiff cannot substitute a new party . . . to address the defects in the Complaint”); Damage Control, Inc. (a/a/o Paula Riley) v. USAA Cas. Ins. Co., 21 Fla. L. Weekly Supp. 935a (9th Jud. Cir. Ct. 2014) (denying plaintiff’s leave to amend complaint for failure to met Rule 1.260); see also MDC Chiropractic, 21 Fla. L. Weekly Supp. 669a; compare Caduceus Prop., LLC. v. Graney, 137 So.3d 987 (Fla. 2014) [39 Fla. L. Weekly S93a] (allowing plaintiff’s leave to amend complaint where the proposed substituted party was previously named in complaint, which is distinguishable to the case at issue as Plaintiff’s proposed substituted party has never been previously named in the Complaint).
In this case, none of the circumstances provided for in Rule 1.260 are evident. There has been no: death of a party; incompetency of a party; transfer of interest; or public officer’s death or separation from office. Therefore, the substitution Plaintiff seeks is impermissible and Plaintiff is precluded from amending its Complaint to substitute Plaintiff, Florida Wellness & Rehab Center of Homestead, for Florida Wellness & Rehabilitation Center, Inc.
Additionally, the amendment is futile as the relation-back doctrine of Rule 1.190(c) does not apply to the substitution Plaintiff seeks and, thus, the statute of limitations has elapsed. Florida Courts have consistently held that an “amendment does not relate back to the original complaint[ ] and the amendment is barred by the statute of limitations” when an amended complaint seeks to bring on a new party into the action. Troso v. Fla. Ins. Guar. Ass’n, Inc., 538 So.2d 103, 104 (Fla. 4th DCA 1989); see also G.B. Holdings, 862 So.2d at 99-100; Stratton of Fla., 711 So.2d at 597; Lindsey, 505 So.2d at 578-579 (the relation back rule should not be applied in cases where an amendment seeks to add a new party); R.A. Jones & Sons, Inc. v. Holman, 470 So.2d 60, 66-69 (Fla. 3d DCA 1985) (rule is generally that relation back will not apply when amendment substitutes or adds a new party); Louis v. S. Broward Hosp. Dist., 353 So.2d 562, 562-563 (Fla. 4th DCA 1977) (“relation back rule is inapplicable where the effect is to bring new parties into the suit”); Garrido, 358 So.2d at 583 (general rule is that amendment does not relate back to date of original filing when new parties are added or substituted); Rayner, 38 So.3d at 820 (rule that permits relation back of amended pleadings generally does not apply when new party is added); Johnson, 458 So.2d at 846-847 (rule which permits relation back of amended pleadings does not apply where entirely new party is added); compare Arch Specialty Ins. Co., 137 So.3d 487 (allowing plaintiff’s amend complaint to relate back where the substituted party was previously named in the underlying action, which is distinguishable to the case at issue as Plaintiff’s proposed substituted party has never been previously named in this action and there is no underlying action).
“The reasoning apparently is that such an addition amounts to the assertion of a ‘new cause of action,’ and if an amendment were allowed to relate back in that situation, the purpose of the statute of limitations would be defeated.” R.A. Jones & Sons, Inc., 470 So.2d at 67 (citation omitted). Additionally, “[t]o permit a substitution at this point would be tantamount to introducing ‘new parties’ into the lawsuit and . . . such is not the nature of the ‘relation back’ doctrine.” Garrido, 358 So.2d at 583; see also Stratton of Fla., 711 So.2d at 597; Beltran v. Vincent P. Miraglia, M.D., P.A., 125 So.3d 855, 860 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D808a].
Furthermore, the amendment is futile as the relation-back doctrine of Rule 1.190(c) does not apply as a result of Plaintiff’s own inexcusable neglect and, thus, the statute of limitations has elapsed. Florida “Courts have refused to apply the [relation-back doctrine] so as to allow the addition of a party to relate back where the plaintiff’s failure to timely join the correct party was due to his own inexcusable neglect.” Beltran, 125 So.3d at 860.
To qualify for the relation-back doctrine, “the plaintiff ha[s] to show that his failure to join the correct parties at the outset had not been due to his own inexcusable neglect.” Garrido, 358 So.2d at 583; see also Stratton of Fla., 711 So.2d at 597. “As a matter of law, [a plaintiff’s] delay in examining [ ] records [does] not postpone the running of the statute of limitations” “when the means of discovering” the failure to join the correct party is “readily available to [ ] plaintiff through an examination of” discovery and records. Frankowitz v. Propst, 489 So.2d 51, 52 (Fla. 4th DCA 1986); see also Michelin Reifenwerke, 462 So.2d at 56 (finding “[t]here are numerous discovery measures in the rule book which could [be] employed”). What is more, knowledge of the contents of records is imputed to plaintiff, even when the contents are not known. Lee v. Simon, 885 So.2d 939, 945 (Fla. 4th DCA 2004) [29 Fla. L. Weekly D2395b]. In this case, Plaintiff sought to amend the plaintiff named. However, Plaintiff should have known from the onset of the case who should have been named as the correct plaintiff. As such, Plaintiff’s failure to add the correct party was due to its own inexcusable neglect.
In addition, Plaintiff’s proposed amendment is impermissible as Defendant will be severely prejudiced should the amendment be allowed. “Plaintiff must demonstrate that the parties will not be prejudiced by its amendment.” MDC Chiropractic, 21 Fla. L. Weekly Supp. 669a; see also Garrido, 358 So.2d at 583 (plaintiff must demonstrate an “absence of prejudice”); Beltran, 125 So.3d at 859; Stratton of Fla., 711 So.2d at 597; One Call Prop. Serv., 20 Fla. L. Weekly Supp. 829b. However, Plaintiff in this case has made no showing.
The Court in One Call Prop. Serv. found there to be sufficient prejudice warranting denial of an amendment to substitute a party where the “[d]efendant expanded resources in defending the case against it up to [that] point.” 20 Fla. L. Weekly Supp. 829b. Additionally, the Court in MDC Chiropractic found great prejudice to defendant where the litigation to date was against the incorrect party and discovery had been conducted “against the wrong party including the scheduling of the wrong party’s corporate representative.” 21 Fla. L. Weekly Supp. 669a. In this case, Defendant has litigated the case for about five (5) years since 2011, which included propounding and responding to discovery and conducting various depositions, including the deposition of the wrong party’s corporate representative. Consequently, Defendant has expanded a great amount of time and resources in defending the case to date.
Moreover, the Court in One Call Prop. Serv. also found prejudice where the defendant would be “prevented from exercising its right under Florida Statute Section 57.105 to move for attorney’s fees and costs should it ultimately prevail in [the] matter.” 20 Fla. L. Weekly Supp. 829b. In this case, Defendant filed a Motion for Attorney’s Fees and Costs Pursuant to Florida Statute § 57.105 on November 25, 2015, as well as a Proposal for Settlement pursuant to Florida Statute § 768.79 and Fla. R. Civ. P. 1.442 on February 17, 2014, both of which would entitle Defendant to attorney’s fees and costs should it ultimately prevail in this matter. Additionally, the Proposal for Settlement was made out to Plaintiff, Florida Wellness & Rehab Center of Homestead, which is the incorrect party. Consequently, if Plaintiff’s proposed amendment is allowed, Defendant would lose out on its entitlement to attorney’s fees and costs for the time that has elapsed since February 17, 2014 from Plaintiff, Florida Wellness & Rehab Center of Homestead. Therefore, Defendant will be severely prejudiced should the amendment be allowed.
The facts in existence when a suit is instituted determine the right to recover in an action at law. Voges v. Ward, 98 Fla. 304 (Fla. 1929). Moreover, a plaintiff’s lack of standing at the inception of a case is not a defect that may be cured by the acquisition of standing after the case is filed. Progressive Express Ins. Co. v. McGrath Cmty. Chiropractor, 913 So.2d 1281 (Fla. 2nd DCA 2005) [30 Fla. L. Weekly D2622b] (holding that “the assignment of personal injury protection (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”). The rule on relation back of amended pleadings does not permit a plaintiff to establish the right to maintain an action against automobile insurer retroactively by acquiring standing to file lawsuit after the fact. Id. at 1284 (holding that “there was no [a]ssignment of [b]enefits, from Abner Joseph to the [Provider], either written or equitable, in existence at the time the [Provider] filed this lawsuit in [and, t]herefore, the [Provider] lacked standing to file suit at the time the original complaint was filed”).
In this case, the purported assignment of benefits attached to the Complaint is between Eunice Guillot and Florida Wellness & Rehabilitation Center, Inc., not Plaintiff, Florida Wellness & Rehab Center of Homestead. As such, Plaintiff lacks standing as it has no assignment of benefits from the insured. This lack of standing at the inception of this case cannot be cured.
Consequently, the correct procedure would not be to amend the complaint, but to dismiss the case with prejudice. The dismissal applies only to the parties named and does not preclude suit by an unnamed party with standing. Lambrix v. Dugger, 547 So.2d 1265 (Fla. 1st DCA 1989).CONCLUSION
Accordingly, it is hereby ORDERED and ADJUDGED that Plaintiff’s Motion for Leave to Amend Complaint to revise the named Plaintiff from Florida Wellness & Rehab Center of Homestead to Florida Wellness & Rehabilitation Center, Inc. is hereby DENIED and the case is dismissed with prejudice. The Court reserves jurisdiction as to Defendant’s attorney’s fees and costs associated with defending this case before the Court.
