25 Fla. L. Weekly Supp. 965c
Online Reference: FLWSUPP 2511MCKEInsurance — 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
A.J. WELLS ROOFING AND CONSTRUCTION a/a/o Gail McKenxie, Plaintiff, v. STATE FARM FLORIDA INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Division 1. Case No. 16-2017-CC-003551. June 26, 2017. Pauline M. Drake, Judge. Counsel: Steven M. Bush, 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 in this case filed a Motion to Dismiss the complaint based on a lack of standing. The Court heard arguments on Defendant’s Motion to Dismiss.
The undisputed facts of this case are that the insured, Gail McKenzie incurred property damage and assigned their post loss rights of the 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 was an unregistered fictitious name, in violation of § 865.09. After the filing of the original complaint, Plaintiff came into compliance with the Florida statute.
Defendant contends that an unregistered fictitious name lacks standing to bring an action against an insurer based on 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 instant case are distinguishable from Hartley, because in Hartley, the defect was never cured. In 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. Law 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.
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 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.
Therefore, this Court finds that the assignment was valid and the Motion to Dismiss is DENIED.
