26 Fla. L. Weekly Supp. 669b

Online Reference: FLWSUPP 2608KORCInsurance — Personal injury protection — Standing — Insurer waived defense of lack of standing where issue was not raised in response to demand letter or plead as affirmative defense

MOHAMED KORCHI, an insured individual by and through his/her assignee, DOC SCHROEDER INC., d/b/a Back Pain Relief Clinic, Plaintiff, v. AUTO-OWNERS INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 13-CC-023694. Division L. September 12, 2018. Cynthia S. Oster, Judge. Counsel: Marc J. Semago, FL Legal Group, Tampa, for Plaintiff. Edwin Valen, Cole Scott & Kissane, P.A., Tampa, for Defendant.

ORDER ON DEFENDANT’S MOTIONFOR SUMMARY JUDGMENT

THIS CAUSE having come before the Court on February 26, 2018 and the Court having heard argument of counsel and the Court being fully advised in the premises, it is: ORDERED and ADJUDGED as follows:FINDINGS OF FACT

1. This matter arises over a dispute over personal injury protection (PIP) benefits from a September 26, 2011 motor vehicle crash.

2. The patient, Mohamed Korchi, sought and received treatment from the Plaintiff, Doc Schroeder, Inc. d/b/a Back Pain Relief Clinic, from September 26, 2011 through January 4, 2012.

3. The Defendant, Auto-Owners Insurance Company, paid directly to Doc Schroeder, Inc. d/b/a Back Pain Relief Clinic for treatments rendered at Back Pain Relief Clinic. Plaintiff disputes that all dates of service submitted were paid, while the Defendant disputes that the Plaintiff submitted billing for all dates of service.

4. On December 5, 2012, the Plaintiff served a demand letter pursuant to Fla. Stat. § 627.736(10) on the Defendant, which attached a copy of Plaintiffs assignment of benefits.

5. The Defendant responded to Plaintiff’s demand letter on December 18, 2012. In that response, the Defendant’s representative issued a payment to the Plaintiff and in its letter, did not assert that the Plaintiff lacked standing for payment.

6. The Plaintiff filed suit on September 13, 2013, alleging in its complaint an entitlement to bring suit via an actual and/or equitable assignment of benefits from the patient, Mohamed Korchi, against the Defendant.

7. The Defendant served its answer and affirmative defenses on November 12, 2013. Among the asserted affirmatives defenses, the Defendant did not plead the defense that the Plaintiff lacked standing. The Defendant has not, at any point in these proceedings, moved to amend its answer to assert additional affirmative defenses.

8. The Defendant initially moved for summary judgment on May 1, 2014. In its motion, the Defendant challenged the sufficiency of Plaintiff’s demand letter, but did not challenge standing. In its motion for summary judgment, the Defendant stated in the “Statement of Facts” section of the motion that “[o]n September 26, 2011 Mohamed Korchi assigned his personal injury protection benefits to the Plaintiff, via an assignment of benefits.” This motion was never argued before the Court.

9. Defendant first challenged the Plaintiff’s standing in its pleadings filed on May 31, 2017 in the motion before the Court, asserting that the purported assignment of benefits executed by Mohamed Korchi assigned to two entities: Doc Schroeder, Inc. d/b/a Back Pain Relief Clinic and to Rhonda Schroeder, DC.

CONCLUSIONS OF LAW

Viewing the facts and law in a light most favorable to the Plaintiff, as the non-moving party, the Court concludes as follows:

The Defendant Waived Asserting Standing as an Affirmative Defense

Lack of standing is an affirmative defense that a defendant must raise; the failure to raise it generally results in waiver. Dage v. Deutsche Bank National Trust Co., 95 So.3d 1024, 1024 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D2044b]. In analyzing lack of standing in the personal injury protection context, the Thirteenth Judicial Circuit, sitting in its appellate capacity, has held that the failure to assert the affirmative defense of lack of standing results in waiver of the defense. Progressive Consumers Insurance Co. v. Craig A. Newman, D.C. (a/a/o Reem Riley), 15 Fla. L. Weekly Supp. 129a (13th Jud. Cir. (Appellate) 2007). Judge Levens, in writing for the court, held that if a defendant did not plead lack of standing as an affirmative defense, it could not seek summary judgment on standing. Id.

The record before the Court demonstrates that the Defendant did not assert a lack of standing in response to Plaintiff’s demand letter of December 5, 2012. The Defendant has not disputed that it, in response to Plaintiff’s demand letter, issued payments to Plaintiff’s counsel for the Plaintiff, Doc Schroeder, Inc. d/b/a Back Pain Relief Clinic and not for Rhonda Schroeder, DC, individually. Moreover, the record before the Court, as well as admissions of counsel for the Defendant to the Court, demonstrate that the Defendant did not plead lack of standing as an affirmative defense in its answer and it has not moved for leave to amend its answer and affirmative defenses at any point in the proceedings. Based on the clear directive of the Thirteenth Judicial Circuit Appellate division in Progressive v. Newman, supra, the Court holds that the Defendant waived the lack of standing affirmative defense and DENIES the Defendant’s motion for summary judgment.

Lastly, based on the Court’s ruling on the waiver of standing, the Court does not make any findings of fact or conclusions of law as to the sufficiency of the assignment of benefits.

For the reasons stated herein, the Defendant’s motion for summary judgment is DENIED.