25 Fla. L. Weekly Supp. 966a
Online Reference: FLWSUPP 2511STANInsurance — Homeowners — Standing — Assignment — Where plaintiff/assignee was not in compliance with fictitious name statute at time assignment was executed in fictitious name and action was filed, but subsequently came into compliance, noncompliance was cured, and plaintiff can maintain suit from that point forward — Motion to dismiss denied
A.J. WELLS ROOFING AND CONSTRUCTION a/a/o Federica Stanley, Plaintiff, v. STATE FARM FLORIDA INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2017-SC-001550, Division M. July 27, 2017. Mose L. Floyd, Judge. Counsel: Dale S. Shelton, The Bush Law Group, LLC, Jacksonville, for Plaintiff. Robert A. Kingsford, Alfano Kingsford, P.A., Maitland, for Defendant.
ORDER DENYING MOTION TO DISMISS
The Defendant STATE FARM FLORIDA INSURANCE COMPANY (“State Farm”) filed a Motion to Dismiss the Plaintiff’s A.J. WELLS ROOFING AND CONSTRUCTION a/a/o FEDERICA STANLEY (“A.J. Wells Roofing”) complaint based upon a lack of standing. The Court having heard argument from both parties and being otherwise fully advised of the premises herein rules as follows:
The undisputed facts of this case are that the insured, Federica Stanley incurred property damage and assigned their post loss rights of her insurance policy to the Plaintiff. Plaintiff completed all of the necessary repairs and received some compensation from Defendant. While performing repairs, Plaintiff filed a supplemental claim for additional costs that were incurred and Defendant denied the claim. At the time of the assignment, Plaintiff used an unregistered fictitious name, in violation of § 865.09. After the filing of the original complaint, Plaintiff took action to cure the defect and comply with the Florida statute by registering the fictitious name used on the assignment.
Defendant contends that the Plaintiff lacks standing to bring an action against an insurer based upon an assignment to an unregistered fictitious entity and that lack of standing cannot be cured by the acquisition of standing after the case is filed. Progressive Insurance Company v. Hartley, 21 So. 3d 119, 120-121 (Fla. 5th DCA 2009) [34 Fla. L. Weekly D2229c]. Progressive Express Ins. Co. v. McGrath Cmty. Chiropractic, 913 So. 2d 1281, 1285 (Fla. 2nd DCA 2005) [30 Fla. L. Weekly D2622b].
The facts of the instant case are distinguishable from Hartley, because in Hartley, the defect was never cured. In the instant case, the Plaintiff is now in compliance of the law. In Rapid Rehabilitation, Inc. a/a/o Forbes, Cyrus v. United Automobile Insurance Company, 20 Fla. L. Weekly Supp. 649a (17th Judicial Circuit, Broward County, 2012), the court held that failure to comply with § 865.09 can be cured after the filing of a suit and from that point forward, the suit can be maintained. This Court is in agreement with the Rapid Rehabilitation case. While the Defendant asserts that § 865.09 (9) (a) (see below) prohibits a business from maintaining a claim if it does not comply with that section of the statue. However, a further reading of the section allows the prohibition to be lifted after the section has been complied with, as the Plaintiff has accomplished in this case.
§ 865.09 (9)(a) “If a business fails to comply with this section, the business, its members, and those interested in doing such business may not maintain any action, suit, or proceeding in any court of this state until this section is complied with. An action, suit, or proceeding may not be maintained in any court of this state by any successor or assignee of such business on any right, claim, or demand arising out of the transaction of business by such business in this state until this section has been complied with.”
The instant case is also distinguishable from McGrath, because in McGrath, there was a lack of standing because the actual assignment happened after the case was filed. In the instant case, the assignment happened before the case was filed.
In response to Defendant’s Motion, Plaintiff argues that even if the assignment is found to be invalid, Plaintiff has standing based on a valid equitable assignment. Plaintiff argues that a court may find an equitable assignment where necessary to effectuate the parties’ plain intent or to avoid injustice. SourceTrack, LLC v. Ariba Inc., 958 So. 2d 523, 526 (Fla. 2d DCA 2007) [32 Fla. L. Weekly D1419a]. It is clear that both parties intended the assignment to be valid. Plaintiff made necessary repairs and Defendant paid Plaintiff most of the money it asked for those repairs.
This Court finds that by properly registering the fictitious name Plaintiff is now in compliance with requirements of § 865.09. This Court further finds that the assignment is valid. Therefore, the Defendant’s Motion to Dismiss is DENIED.
