25 Fla. L. Weekly Supp. 965b
Online Reference: FLWSUPP 2511GILLInsurance — 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 Tom and Susan Gillis, Plaintiff, v. STATE FARM FLORIDA INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2017-CC-002476. Division CC-C. August 4, 2017. Brent D. Shore, 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 DEFENDANT’S MOTION TO DISMISS
This cause came before the Court for Hearing on the Defendant’s Motion To Dismiss and the Court having considered the argument of counsel and being fully advised, finds:
(A) The Plaintiff’s Complaint in this case was filed on February 22, 2017. Prior to filing the Complaint, the Plaintiff apparently performed work on the home of Tom and Susan Gillis, who executed an Assignment Of Benefits (AOB) to A.J. Wells Roofing Contractors, a copy of which was attached to the Plaintiff’s Complaint. At the time the AOB was executed, the fictitious name of A.J. Wells Roofing Contractors was not registered with the State of Florida. However, the fictitious name was registered on April 5, 2017.
(B) The Defendant argues that the Plaintiff 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 after the case has been filed. The Defendant cites Progressive Express Insurance Company v. Hartley, 21 So. 3d 119 (Fla. 5th DCA 2009) [34 Fla. L. Weekly D2229c] and Progressive Insurance Company v. McGrath Cmty. Chiropractic, 913 So. 2d 1281 (Fla. 2nd DCA 2005) [30 Fla. L. Weekly D2622b].
(C) Although the AOB was in violation of Florida Statute Section 865.09 on the date of execution, the failure to register the fictitious name does not render the AOB invalid. Florida Statute 865.09 (9)(b) (2016) and Worm World, Inc. v. Ironwood Prods., Inc., 917 So. 2d 274 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D2850b].
(D) The Plaintiff’s lack of initial standing can be cured without dismissing and then refiling the case. Florida Statute 865.09(9)(a) states that “. . .if a business fails to comply with this section, the business may not maintain any action, suit, or proceeding. . .until this section is complied with. . .”. Courts have found that the prohibition against “maintaining” a suit does not prohibit “instituting” a suit. See, McNayr v. Cranbrook Invest., Inc., 146 So. 2d 400 (Fla. 3d DCA 1962) (affirmed in McNayr v. Cranbrook Invest., Inc., 158 So. 2d 129 (Fla. 1963) and 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).
(E) The Hartley and McGrath cases are distinguishable from the instant case. In Hartley, the defect was never cured. In McGrath, there was a lack of standing because the initial Assignment occurred after the case was filed. The AOB in the instant case was valid.
Therefore, it is
ORDERED AND ADJUDGED:
The Defendant’s Motion To Dismiss is DENIED.
