25 Fla. L. Weekly Supp. 616a
Online Reference: FLWSUPP 2507FAULInsurance — Property — Standing — Assignment — Assignment in favor of entity that was non-registered fictitious name at time of assignment and at time suit for unpaid benefits was filed is invalid and cannot confer standing on assignee — Lack of standing at inception of case cannot be cured by acquiring standing after case is filed — Allegations of equitable assignment cannot establish standing where allegations are contradicted by written assignment attached to complaint — Complaint is dismissed with prejudice
A.J. WELLS ROOFING AND CONSTRUCTION a/a/o Larry and Della Faulkner, Plaintiff, v. STATE FARM FLORIDA INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2017-CC-002415. August 31, 2017. John A. Moran, Judge. Counsel: Steven M. Bush, The Bush Law Group, LLC, Jacksonville, for Plaintiff. Robert Kingsford and Lynn Alfano, Alfano Kingsford, P.A., Maitland, for Defendant.
ORDER DISMISSING PLAINTIFF’SCOMPLAINT WITH PREJUDICE
THIS CAUSE having come to be heard on June 28, 2017 on Defendant’s March 28, 2017 Motion to Dismiss Plaintiff’s Complaint, and the Court having considered the Motion and Memoranda submitted by the parties, having heard argument of counsel, and being otherwise duly advised in the premises, it is hereby ORDERED and ADJUDGED as follows:
1. Plaintiff claimed standing to sue for unpaid roof claim benefits pursuant to an Assignment of Benefits which was attached to the Complaint as an exhibit to the Complaint. The Assignment of Benefits stated in pertinent part that “the insured(s) hereby assign any and all insurance claim rights, benefits, and proceeds under any applicable insurance policies to A.J. Wells Roofing Contractors.” The date on the Assignment of Benefits was January 30, 2017.
2. At the time the Assignment of Benefits was signed and at the time this lawsuit was filed on February 22, 2017, A.J. Wells Roofing Contractors was a non-existent entity and, without dispute, was a non-registered fictitious name in the State of Florida. Florida’s Fictitious Name Act, Florida Statute §865.09, requires that businesses operating under a fictitious name must register the name with the Division of Corporations of the Florida Department of State.
3. An Assignment of Benefits made to a non-existent entity is invalid and cannot confer standing to bring an action against an insurer based on the claimed assignment from the insured. Progressive Express Insurance Company v. Hartley, 21 So. 3d 119, 120-121 (Fla. 5th DCA 2009) [34 Fla. L. Weekly D2229c]. Here, Plaintiff based its standing in this case on the written Assignment of Benefits attached to the Complaint, which was in favor of the non-existent entity, A.J. Wells Roofing Contractors. As such, the Assignment of Benefits is invalid and cannot confer standing to bring this action.
4. Furthermore, a Plaintiff’s lack of standing at the inception of a case is not a defect that may be cured by the acquisition of standing after the case is filed, nor does Rule 1.190(c), Florida Rules of Civil Procedure, permit a party to establish the right to maintain an action retroactively by acquiring standing to file a lawsuit after the fact. Progressive Express Insurance Company v. McGrath Community Chiropractic, 913 So. 2d 1281, 1285 (Fla. 2nd DCA 2005) [30 Fla. L. Weekly D2622b].
5. Finally, any claim that Plaintiff’s cause of action is saved by allegations of an equitable assignment must be rejected because such allegations in the Complaint are contradicted by the written Assignment of Benefits attached to the Complaint, so that the plain meaning of the exhibit controls. Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So. 2d 399, 401 (Fla. 2nd DCA 2000) [25 Fla. L. Weekly D1914b].
6. Therefore, based upon the above facts and law, Plaintiff’s Complaint must be dismissed with prejudice. The Court reserves jurisdiction to consider Defendant’s Motion to Recover Attorney’s Fees from First Coast Properties of Jacksonville, Inc. for Failing to Comply with Florida Statute §865.09(9)(b).
