24 Fla. L. Weekly Supp. 23c
Online Reference: FLWSUPP 2401ACEVInsurance — Personal injury protection — Standing — Error to dismiss PIP suit on ground that plaintiff is not medical provider that actually provided services at issue where deposition testimony supporting that finding is contradicted by documentary evidence — Director of plaintiff that is dissolved corporation was entitled to appoint agent to bring PIP suit in plaintiff’s name
GALLO MEDICAL CENTER a/a/o LUZ DELIA ACEVEDO, Appellant, v. STATE FARM FIRE & CASUALTY CO., Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 13-391 AP. L.T. Case No. 05-2315 CC 26. February 1, 2016. On Appeal from the County Court for Miami-Dade County, Judge Lawrence D. King. Counsel: Maria E. Corredor, and Rima C. Bardawil, for Appellant. Dian H. Tutt, for Appellee.
(Before BAGLEY, MILLER, and DIAZ, JJ.)
(BAGLEY, Judge.) In this PIP case involving a medical provider’s suit against State Farm seeking payment for medical services, the lower court dismissed the suit for lack of standing after State Farm argued that the corporation which was pursuing the lawsuit was a corporation named Gallo Medical Center that was incorporated on August 9, 2006 (“Gallo 2”) rather than the corporation named Gallo Medical Center that was incorporated on May 10, 2004 (“Gallo 1”) which actually provided the medical services at issue.
State Farm argued below, and argues on appeal, that because “Gallo Sr.” (actually Rodolfo Rodriguez Gallo) testified at a deposition that “Gallo Jr.” (actually Rodolfo Carlos Rodriguez Gallo) owned Gallo Medical Center, and because the only Gallo Medical Center which “Gallo Jr.” was ever a director of was Gallo 2, then it must be Gallo 2 that was suing State Farm, not Gallo 1, and that Gallo 2 did not have standing in the case. The trial court dismissed the case and granted final judgment in favor of State Farm. The Appellant argues that Gallo 1, not Gallo 2, is suing State Farm, and that Gallo 1 has standing, so that the order dismissing the case for lack of standing should be reversed.
The parties agree that the standard for reviewing an order dismissing a case for lack of standing is de novo. Thus, this court has used the de novo standard in reviewing the record to determine whether Gallo 1 or Gallo 2 brought the suit below.
According to the Articles of Incorporation for Gallo Medical Center, Inc., filed on May 10, 2004, Gallo 1 was incorporated on May 10, 2004, with “Gallo Jr.” as the president and sole director. On September 25, 2004, through an amendment to the articles of incorporation, Estela Mayra Ramos became the president and director of Gallo 1. The insured received treatment from Gallo 1 from December 13, 2004 through January 28, 2005. The lawsuit was filed on May 4, 2005. Then, as reflected in an annual report dated September 8 2005, Adannys Dominguez became the president of Gallo 1. Gallo 1 was then voluntarily dissolved on February 15, 2006, according to the articles of dissolution contained in the record.
Gallo 2 was then incorporated on August 9, 2006. The articles of incorporation list Adannys Dominguez as registered agent, incorporator, initial officer and/or director and “P” (presumably president). Then, on June 10, 2010, the articles of incorporation were amended to make Gallo Jr. the President. Finally, Gallo 2 was administratively dissolved on September 28, 2012.
The issue in this case started during the March 29, 2011 deposition of “Gallo Sr.,” who was asked “Who is the owner of Gallo Medical Center?” and answered “Right now, it’s my son.” (“Gallo Jr.”) He also answered that the original owner was Mayra Ramos, followed by Adannys Dominguez. He stated that his son had never been the owner of the clinic previously. Later, he was again asked if his son was the original owner and testified that it was Mayra, but when he was asked whether AHCA records would be correct if they indicated that his son originally opened the clinic, he answered that AHCA “has to be right” but he thought that it was Mayra. He also testified that “Gallo Medical Center” had never been an inactive corporation.
Most of the deposition testimony of “Gallo Sr.” discussed above seems to be factually inaccurate, in that it conflicts with documentary evidence such as the corporations’ articles of incorporation and amendments. For example, Gallo Sr. states that his son was not the original owner when the documentary evidence indicates that his son was the original owner prior to Mayra Ramos. He further believed that the corporation had never been inactive, when in fact, the initial corporation had been voluntarily dissolved, a new corporation was formed with the same name, and then it was administratively dissolved. In fact, during Gallo Sr.’s deposition, there was no discussion whatsoever that there had been two corporations with the name Gallo Medical Center, so when he testified that his son was the owner of Gallo Medical Center, it is not clear which corporation he might have been talking about.
The deposition of “Gallo Jr.” is somewhat more consistent with the documentary evidence since he testified that he had originally established “Gallo 1,” and then sold it to Mayra Ramos, and that there were two separate entities. When Gallo Jr. testified that “the second Gallo Medical Center only exists on paper” and was asked “why is that?” he answered “Because I’m still trying to collect . . . on PIP suits.” But he testified that he had no paperwork or information that would transfer interest from the prior Gallo Medical Center to the newer formed corporation. He also testified that he did not know whether Gallo 1 or Gallo 2 is bringing the suit. When asked “if there’s a recovery in this suit for PIP benefits, would that go to the corporation of Gallo Medical Center No. 2?” he answered that he did not “believe so.” And he testified that he was not aware of Gallo 2 ever recovering any funds for PIP benefits. He seemed to be unaware during his deposition that Gallo 2 had been dissolved, testifying that he “thought it was still current.”
Utilizing the de novo standard, and construing the facts in favor of the plaintiff, as the party whose standing is being challenged, see Sun States Utilities, Inc. v. Destin Water Users, Inc., 696 So. 2d 944, 945, n.1 (Fla. 1st DCA 1997) [22 Fla. L. Weekly D1678e], we find that Gallo 1 is the entity who brought the suit below, and that it has standing to do so.
First, there is no question that “Gallo 1” holds the cause of action in the instant case. Gallo 1 is the corporation that performed the treatment and no indication has been found in the record that Gallo 1 ever transferred the claim to Gallo 2, Gallo Jr., or any other person or entity.
The last president and director of Gallo 1 was Adannys Dominguez. She was the president and director at the time that Gallo 1 was dissolved, and Gallo Jr. held no position in the company at that time. Florida Statute section 607.1405(2)(e) and (f) provide that “Dissolution of a corporation does not . . . Prevent commencement of a proceeding by or against the corporation in its corporate name . . . . [or] Abate or suspend a proceeding pending by or against the corporation . . . .” Section 607.1405(5) provides that “For purposes of this section, the circuit court may appoint a trustee for any property owned or acquired by the corporation who may engage in any act permitted under subsection (1) if any director or officer of the dissolved corporation is unwilling or unable to serve or cannot be located.” Thus, it appears that the statute contemplates that any director or officer of the dissolved corporation (or a court-appointed trustee) can act for the corporation.
As noted, in the instant case, Adannys Dominguez was the only director or officer of Gallo 1 at the time that it was dissolved, so she has the authority to act on its behalf. Furthermore, Adannys Dominguez is in fact acting on behalf of Gallo 1 in this suit by delegating her authority to Gallo Sr. The record contains the affidavit of Adannys Dominguez, dated September 18, 2013, which provides, in part: “8. As the president and an officer of the corporation, I authorized Mr. Rodlfo Rodriguez-Gallo to serve as the corporate representative of Gallo Medical Center, Inc. in this lawsuit to collect assets of the corporation. 9. As the president and an officer of the corporation, I have at all times authorized Mr. Rodolfo Rodriguez-Gallo to serve as the corporate representative of Gallo Medical Center, Inc. in this lawsuit to collect assets of the corporation.”
A corporation may decide what agents will appear and speak for the corporation in litigation. W. Stuart Acreage, Inc. v. Hannett, 427 So. 2d 323, 323 (Fla. 4th DCA 1983); see also § 607.0801, Fla. Stat. (2013). Research has revealed nothing suggesting that this is different for a dissolved corporation, which is permitted to sue pursuant to section 607.1405(2)(e) and (f) of the Florida Statute, than it is for an active corporation. Thus, as the director and officer of Gallo 1 when it was dissolved, Adannys Dominguez is permitted to act on Gallo 1’s behalf, and in doing so, she was permitted to appoint Gallo Sr. to act on behalf of Gallo 1. According to her affidavit, she did so, and thus, Gallo 1, through Gallo Sr., is properly bringing the cause of action in the instant case.
Accordingly, the order dismissing this case for lack of standing, and the final judgment entered in favor of State Farm is REVERSED and this case if REMANDED for further proceedings consistent with this order.
