27 Fla. L. Weekly Supp. 742b
Online Reference: FLWSUPP 2708PERNInsurance — Personal injury protection — Motion to amend complaint filed against wrong insurer to name correct insurer by interlineation is denied — Medical provider may not substitute entirely new party as defendant — Further, amendment would be futile since statute of limitations has expired and amendment would not relate back to complaint’s original filing
E. MICHAEL WILLIAMS D.O., as assignee of William Pernas II, Plaintiff, v. WINDHAVEN INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 17-CC-009416, Division U. October 3, 2019. Christine K. Vogel, Judge. Counsel: Kevin Richardson, Stillo & Richardson P.A., for Plaintiff. Sean Greenwalt and John Mollaghan, Windhaven Insurance Company, Miami, for Defendant.
ORDER GRANTING DEFENDANT’S MOTIONFOR SUMMARY JUDGMENT AND DENYINGPLAINTIFF’S MOTION TO, AMEND COMPLAINT
THIS CAUSE, having come before the Court on the 17th day of September 2019, and the Court hearing argument and being fully advised in the premises and law makes the following findings:
1. Plaintiff filed their initial complaint against Windhaven Insurance Company on March 7, 2017 for breach of contract. The alleged date of loss occurred on November 28, 2012.
2. However, Windhaven Insurance Company never issued a policy to the named insured. Rather, Equity Insurance Company issued the named insured’s policy.
3. Windhaven responded in their initial Answer and Affirmative Defenses that they never issued a policy or contracted with the named insured.
4. Windhaven Insurance and Equity Insurance are completely separate legal entities that do not share the same officers or owners, do not issue each other’s policies, and are separately incorporated with different federal tax identification numbers.
5. The only connection between the two corporations is the use of the same third-party claim’s management organization, Windhaven Claims Management, LLC.
6. To address the issue, Defendant filed its Motion for Summary Judgment on wrong named Defendant and Plaintiff filed a Motion to Amend Complaint Through Interlineation to change the Defendant to Equity Insurance.
IT IS HEREBY ORDERED:
1. That Plaintiff’s Motion to Amend Complaint Through Interlineation seeking to change the Defendant party from Windhaven Insurance to Equity Insurance is Denied.
2. “Corporations are treated as separate entities notwithstanding common shareholders and officers.” Gray v. Executive Drywall, Inc., 520 So. 2d 619, 621 (Fla. 2d DCA 1988). “This is not a situation in which a party is incorrectly described as a corporation when it is not . . . A plaintiff may amend a compliant to correct the identification of a party, but the plaintiff may not substitute an entirely new party.” Tannenbaum Chiropractic Institute, Inc., d/b/a Cities Orthopedic Group a/a/o Debora French v. State Farm Mutual Automobile Insurance Co., 10 Fla. L. Weekly Supp. 478b (Fla. 13th Jud. Cir. Ct. App. 2003).
3. Thus, Plaintiff may not substitute an entirely new party, Equity Insurance, to address the defects in the Complaint because Plaintiff proceeded against the wrong entity when it filed suit against Windhaven Insurance Company. Plaintiff lacks standing against Windhaven Insurance.
4. Further, amending Plaintiff’s Complaint would be futile in this situation because the statute of limitations has expired, and the amendment would not relate back to the Complaint’s original filing against an entirely new party. See Craig v. East Pasco Medical Center, Inc., 650 So.2d 179 (Fla. 2d DCA 1995) [20 Fla. L. Weekly D395b].
5. The Plaintiff shall recover nothing from this action and shall go forth hence without day.
6. The Court hereby grants Defendant’s entitlement to attorney’s fees and costs and reserves jurisdiction as to the amount.
