27 Fla. L. Weekly Supp. 95a
Online Reference: FLWSUPP 2701SAINInsurance — Personal injury protection — Attorney’s fees — Claim or defense not supported by material facts or applicable law — Where medical provider failed to provide assignment of benefits to refute defense of lack of standing until after it voluntarily dismissed complaint, insurer is entitled to attorney’s fees and costs
ACN BAROMEDICAL, LLC a/a/o Ulysse Saint-Jilus, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COWE 17-011077. December 5, 2018. Ellen Feld, Judge. Counsel: Landau & Associates, PA, Sunrise, for Plaintiff. Jeffrey W. Golovin, Dutton Law Group, Ft. Lauderdale, for Defendant.
ORDER
THIS CAUSE having come before the Court upon Defendant’s Motion to Tax Fees and Costs, and argument having been heard by this Court on October 25, 2018, having been fully advised in the premises, the Court finds as follows:
BACKGROUND, PROCEDURAL HISTORY FACTS
Plaintiff filed its Complaint on May 18, 2017 alleging a dispute over Personal Injury Protection (“PIP”) benefits. Plaintiff filed suit based on a cause of action pursuant to Florida’s Motor Vehicle No-Fault Law, specifically section 627.736, Florida Statutes, for medical services provided as a result of a motor vehicle accident. The Complaint alleges that the insured “equitably assigned to Plaintiff and/or also executed a written assignment of rights, assigning to Plaintiff certain benefits payable pursuant to the policy of insurance issue by Defendant.” See Plaintiff’s Complaint, ¶11.
A copy of an assignment of benefits was not attached to the Complaint. A copy of an assignment of benefits was not attached to Plaintiff’s pre-suit demand letter. The Defendant has not received an assignment of benefits from Plaintiff at any time during the course of the litigation.
The Defendant asserted as an affirmative defense that the Plaintiff did not have standing to bring suit as it did not have an assignment of benefits and rights. The Defendant filed its Motion for Sanctions under FL Stat. §57.105 with a safe harbor letter on July 31, 2017 based on the issues raised in its affirmative defenses. The Plaintiff did not dismiss the matter nor provide any documentation to refute the allegations.
The matter proceeded with litigation including the Defendant serving discovery on the Plaintiff on October 27, 2017 and the filing of a Motion for Summary Judgment regarding the Assignment of Benefits and Rights with supporting affidavit on November 17, 2017. Plaintiff failed to provide an assignment of benefits in their response to Defendant’s discovery requests. On August 17, 2018, the Plaintiff filed its Notice of Voluntary Dismissal without prejudice. On October 22, 2018, after the case was voluntarily dismissed, the Plaintiff for the first time filed a purported assignment of benefits.
CONCLUSIONS OF LAW
Standing as a matter of law must be had in order for Plaintiff to bring and maintain suit. See Fla. R. Civ. P. 1.210 (a). “Whether a party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy is what has traditionally been referred to as the question of standing to sue.” Sierra Club v. Morton, 405 U.S. 727, 731-32 (1972). “[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III [of the United States Constitution].” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citing decision omitted). Proving standing is “an indispensable part of the plaintiff’s case,” and the burden of proving standing rests with the plaintiff. Id. Standing must exist at the time the lawsuit was filed. Macaline Dadaille v. Allstate Indemnity Co., 7 Fla. L. Weekly Supp. 343a (2000), citing Marion Correctional Inst. v. Kriegel, 522 So. 2d 1354 (Fla. 1988).
Plaintiff lacks standing to file or maintain this lawsuit because no assignment of benefits was ever provided until after the Plaintiff voluntarily dismissed the case. Plaintiff’s failure to provide an assignment of benefits is fatal to its claim. “To demonstrate standing to file a PIP suit on behalf of an insured, a medical provider must provide a written assignment of benefits that is executed after the relevant date of loss. . .” Central Palm Beach Physicians & Urgent Care, Inc. D/B/A a/a/o Allan Campo v. Progressive Select Insurance Company, 24 Fla, L. Weekly Supp. 726a.(2016). In the case at bar the Plaintiff never provided a written assignment, not with their demand letter, not attached to the complaint and never provided one in response to discovery requests.
In Progressive Express Insurance Company v. McGrath Community Chiropractic, f/k/a Naples Community Chiropractic, 913 So. 2d 1281 (Fla. 2nd DCA 2005) [30 Fla. L. Weekly D2622b], the Court held that the assignment of benefits is the basis of the claimant’s standing to invoke the process of the court. Standing must exist pre-suit and Plaintiff’s attempt to acquire standing by filing an assignment of benefits after it voluntarily dismissed the case does not cure the fact that no assignment was ever provided during the entire course of the litigation up to and including the voluntary dismissal.57.105 SANCTIONS
In this matter it is clear that the Plaintiff failed to prove that it had standing by providing an executed assignment of benefits at any time supporting the Defendant’s defense that the Plaintiff did not have standing. The Defendant did not know that the Plaintiff had standing at any time. If the Plaintiff knew it had standing and did not timely inform the Defendant of that fact, especially during the safe harbor period, the Defense is entitled to its fees and costs. The Court in Insurance Corporation of New York v. M & J Health Center, Inc., 13 Fla. L. Weekly Supp. 682a (2006) stated , “The language of Fla. Stat. 57.105 is mandatory: “shall award fees.”(emphasis added).” The Court further noted as in the case at bar, “M & J could have dismissed the case during the safe harbor and avoided fees. It failed to do so.” Here the Plaintiff had the same opportunity, they could have dismissed the case and avoided fees during the safe harbor period.
It is therefore ORDERED AND ADJUDGED:
Defendant’s Motion for Entitlement to Reasonable Fees and Costs is GRANTED pursuant Fla. Stat. 57.105. The Court reserves jurisdiction to determine the amount of reasonable fees and costs.
