23 Fla. L. Weekly Supp. 549a
Online Reference: FLWSUPP 2306WHALInsurance — Personal injury protection — Standing — Assignment — No merit to argument that medical provider did not have standing to file suit for PIP benefits because assignment was made in provider’s fictitious name where fictitious name was properly registered, and provider filed suit in both its properly registered corporate name and its fictitious name — Even if argument had merit, insurer waived argument by failing to plead lack of standing based on fictitious name in its answer or affirmative defenses
SILVER CONSULTING SERVICES, INC. D/B/A SILVER CHIROPRACTIC A/A/O MARVIN WHALEN, Plaintiff, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2014-SC-3350. September 24, 2015. Dawn Hudson, Judge. Counsel: Adam Saben, Shuster & Saben, Jacksonville, for Plaintiff. John Mollaghan, Herssein Law Group, Tampa, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FORSUMMARY JUDGMENT AS TO STANDING
THIS CAUSE came before the Court on Defendant’s Motion for Summary Judgment as to standing. The Court, having reviewed the motions and entire Court file, read relevant legal authority; heard argument, and, been sufficiently advised in the premises, finds as follows:
1. The gravamen of the Defendant’s motion is that since the assignment of benefits in this case is made to the Plaintiff’s fictitious name, the Plaintiff has no standing to file suit in this case for unpaid PIP benefits.
2. There is no dispute that the Plaintiff is, and at all relevant times was, a properly registered fictitious name. Further, there is no dispute that the Plaintiff filed suit in this case in its properly registered corporate name and in its properly registered fictitious name.
3. The main case that the Defendant relies on is Progressive Express v. Hartley, 21 So.3d 119 (Fla. 5th DCA 2009) [34 Fla. L. Weekly D2229c]. In Hartley, the Fifth DCA found that the patient of a medical provider, Atlantic Coast Chiropractic Clinic, had standing to bring a first-party PIP suit because the original assignment of benefits had been made to Atlantic Coast Chiropractic, which, at the time of the execution of the assignment, was an unregistered fictitious name. In other words, at the time the assignment was signed, Atlantic Coast Chiropractic, as a corporate entity, did not exist.
4. In our case, Silver Chiropractic & Wellness was a registered fictitious name. As a registered fictitious name, Silver Chiropractic & Wellness is legally entitled to “maintain any action, suit, or proceeding” in any court of this state. See, Florida Statute 865.09(9). Also, even assuming that Silver Chiropractic & Wellness was an unregistered fictitious name, the proper remedy is not summary judgment, but abatement. Jackson v. Jones, 423 So.2d 972 (Fla. 4th DCA 1983). Further, even if the Defendant’s position is that the Plaintiff can only maintain a PIP suit in the name of its corporate entity, in this case, the Plaintiff did so. Therefore, under any review of the facts, as well as the procedural history of this case, the Defendant’s position is unsupported by any law or argument.
5. Even assuming, arguendo, that the Defendant’s position had any merit, the Plaintiff also notes that the Defendant failed to plead lack of standing based on “a fictitious name” in its Answer or affirmative defenses. Florida Rule of Civil Procedure 1.120(a) requires a specific averment when challenging capacity to sue. Therefore, in this case, the Defendant’s position is waived.
6. Finally, the Plaintiff presents the recent case of Florida Hospital Medical Center a/a/o Luis Henriquez v. United Services Automobile Association, 23 Fla. L. Weekly Supp. 61a (Order of Orange County Court Judge Tina Caraballo, dated March 13, 2015), wherein the same defense firm as in this case raised the same issue as to standing. In that case, Judge Caraballo denied the Defendant’s motion for summary judgment, finding that suit was entirely proper based on a registered fictitious name. Coincidentally, the court found that the same defense firm waived the issue in that case too for failure to raise a timely defense in its Answer. Therefore, based on the case law submitted by the Defendant that actually supports the positions of the Plaintiff;1 the fact that the Plaintiff filed in both the corporate and properly registered fictitious name in this case; and, the fact that the Defendant waived this issue, this Court concurs with the ruling of its sister court in Henriquez.
The Defendant’s Motion for Summary Judgment is DENIED.
__________________
1See, Progressive Express v Hartley and Jackson v. Jones, both cited, supra.
