23 Fla. L. Weekly Supp. 587b
Online Reference: FLWSUPP 2306BRINInsurance — Personal injury protection — Standing — Order dismissing complaint due to lack of standing based on conflict between name of plaintiff medical provider and name on assignment of benefits is vacated on rehearing where court ruled without considering existence of evidence that may have resolved conflict, and plaintiff has also pled standing based on oral and equitable assignment
HEALTH AND REHAB OF JOHN YOUNG, INC. a/a/o GASTALINA BRINACHE, Plaintiff, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2013-SC-10615-O. April 24, 2015. Andrew L. Cameron, Judge. Counsel: Pamela Rakow-Smith, Eiffert & Associates, P.A., Orlando, for Plaintiff. Robert Kingsford, Kingsford Law Offices, P.A., Maitland, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FORREHEARING/RECONSIDERATION ANDMOTION TO VACATE ORDER OF DISMISSAL
THIS MATTER came before the Court on March 6, 2015 on Plaintiff’s Motion for Rehearing/Reconsideration on Defendant’s Motion to Dismiss Plaintiff’s Amended Statement of Claim and Motion to Vacate Order of Dismissal entered on October 3, 2014, and the Court having heard argument of counsel and considered the motion, finds as follows:
1. The Plaintiff is a health care provider licensed to do business in the State of Florida.
2. The Defendant is an insurance company licensed to do business in the State of Florida.
3. The Amended Statement of Claim alleges that the Defendant issued a policy of insurance to Manite St. Surin which provided coverage to assignor, Gastalina Brinache. The coverage included Personal Injury Protection Coverage.
4. The Amended Statement of Claim alleges that the assignor, Gastalina Brinache, was involved in an automobile accident on or about March 6, 2010, in which she sustained personal injuries.
5. The Amended Statement of Claim alleges that the assignor, Gastalina Brinache, completed an assignment of benefits assigning her rights, title, and interest under said policy of insurance to the Plaintiff for treatment related to the automobile accident. A copy of the assignment of benefits was attached and incorporated by reference to the Amended Statement of Claim.
6. The Amended Statement of Claim alleges that the Defendant failed to pay the Plaintiff’s covered loss.
7. The Amended Statement of Claim alleges that the Plaintiff has “performed all conditions precedent to entitle Plaintiff to recover benefits for said necessary medical, rehabilitative and remedial treatment regarding the above-described policy.”
8. On or about May 12, 2014, the Defendant filed its Motion to Dismiss Plaintiff’s First Amended Statement of Claim based on lack of standing pursuant to an allegedly defective assignment of benefits.
9. The Defendant argued in its motion that the Plaintiff lacked standing to bring suite because the name on the Amended Statement of Claim did not match the name on the assignment of benefits.
10. On September 17, 2014, a hearing on Defendant’s Motion to Dismiss Plaintiff’s Amended Statement of Claim was conducted by the Court.
11. Based on the arguments and case law provided to the Court by counsel for the Plaintiff and the Defendant, the Court entered an order dismissing Plaintiff’s Amended Statement of Claim, with prejudice, on October 3, 2014.
12. The Plaintiff subsequently filed its timely Motion for Rehearing/Reconsideration of Defendant’s Motion to Dismiss Plaintiff’s Amended Statement of Claim and Motion to Vacate Order of Dismissal Entered on October 3, 2014, pursuant to Fla. R. Civ. Pro. 1.530. Hearing was conducted on March 5, 2015.
13. The purpose of a motion for rehearing and/or for reconsideration is to give the trial court an opportunity to consider matters, which it overlooked or failed to consider, and to correct any error if it becomes convinced that is has erred. See, Francisco v. Victoria Marine Shipping Inc., 486 So.2d 1386, 1388 (Fla.3d DCA 1986).
14. “In determining whether a complaint properly states a cause of action upon which relief can be granted, a court must confine its review to the four corners of the complaint, drawing all inferences in favor of the pleader, and accept as true all well-pled allegations.” Deutsche Bank National Trust Company, Etc. v. Tony Lippi, 78 So.3d 81, 84 (Fla. 5th DCA 2012) [37 Fla. L. Weekly D201b]. “The allegations, taken as true, ‘are then reviewed in light of the applicable substantive law’ to determine whether standing exists.”
15. The court in Deutsche Bank further held that a trial court may not speculate as to whether the allegations in the Complaint are true. More importantly, a motion to dismiss is not a motion for summary judgment and a trial court may not rely upon depositions, affidavits or other forms of evidence or speculate as to whether the allegations in the complaint will ultimately be provable.
16. The Defendant relies upon Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So.2d 399 (Fla. 2nd DCA 2000) [25 Fla. L. Weekly D1914b], in asserting that the Court could consider the issue of standing in a Motion to Dismiss. More specifically, the Defendant argues that when the assignment of benefits is attached as an exhibit, the contents of the exhibit control over the inconsistent allegations contained within the Complaint.
17. In Paladin Properties v. Family Investment Enterprises, 952 So.2d 560, 563-564 (Fla. 2nd DCA 2007) [32 Fla. L. Weekly D432a], the Second District held that “it is true that exhibits attached to a complaint become part of the complaint and will be considered together with it. It is also true that exhibits attached to a complaint control over the allegations of the complaint when the two contradict each other. However, the alleged contradiction must be apparent from the face of the complaint and the exhibits. Moreover, for exhibits to serve as a basis for dismissing a complaint for failure to state a cause of action, the exhibits must actually negate the cause of action-not simply raise possible defenses to it.”
18. The issue of standing and the effect of the alleged invalid assignment of benefits were matters to be raised as affirmative defenses, not in a motion to dismiss. Hartford Insurance Company of the Midwest v. O’Connor, 855 So. 2d 189 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D2140a].
19. Here, the Court ruled that the Plaintiff lacked standing to bring the instant action after comparing the name and signature on the assignment of benefits to the name on the caption of the Amended Statement of Claim. However, when making its determination, the Court failed to consider the existence of evidence that may have resolved the conflict as to whether the individual whose signature appeared on the assignment of benefits was in fact the same person whose name appeared in the Amended Statement of Claim.
20. Additionally, notwithstanding the apparent confusion regarding the assignment of benefits attached to the Amended Statement of Claim, the Plaintiff has pled standing to bring this action by “oral assignment, equitable assignment and/or written assignment of benefits” in its Amended Statement of Claim.
21. “[N]o particular words or form of instrument is necessary to effect an equitable assignment and any language, however informal, which shows an intention on one side to assign a right or chose in action and an intention on the other to receive, if there is valuable consideration, will operate as an effective equitable assignment.” Giles v. Sun Bank, N.A., 450 So.2d 258, 260 (Fla. 5th DCA, 1984).
It is hereby ORDERED AND ADJUDGED:
1. Plaintiff’s Motion for Rehearing/Reconsideration on Defendant’s Motion to Dismiss Plaintiff’s Amended Statement of Claim is GRANTED.
2. The Order of Dismissal with Prejudice entered on October 3, 2014, is hereby VACATED.
3. Defendant shall have twenty (20) days from the date of this order to file a response to Plaintiff’s Amended Statement of Claim.
