27 Fla. L. Weekly Supp. 897a
Online Reference: FLWSUPP 2710MAESInsurance — Personal injury protection — Provider’s action against insurer — Standing — Corporations — Medical provider that is administratively dissolved corporation may bring action for unpaid PIP benefits in its own name where action is necessary for provider to wind up its business
WESTLAND SOUTH MEDICAL CENTER, a/a/o Jorge R. Maestre, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 09-08156 CC 26 (03). July 13, 2018. Gloria Gonzalez-Meyer, Judge. Counsel: Yankell Francisco Benavides, Law Offices of Corredor & Husseini, P.A., Doral, for Plaintiff. Beighley, Myrick, Udell & Lynne, P.A., Miami, for Defendant.
ORDER DENYING DEFENDANT’SMOTION TO DISMISS
THIS CAUSE having come to be heard upon Defendant’s Motion to Dismiss, and the Court having heard argument of counsel at a hearing on July 6, 2018, and the court being otherwise fully advised in the premises, the Court hereby makes the following findings of fact and law:
Undisputed Facts Relevant To The Issue At Hand:
1. Plaintiff, WESTLAND SOUTH MEDICAL CENTER, seeks payment of PIP benefits under the subject policy of insurance pursuant to an alleged assignment of benefits executed by JORGE R. MAESTRE (“Claimant”) and charges submitted to the Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, for alleged medical treatment rendered to Claimant.
2. Plaintiff filed the instant suit on or about October 7, 2009 for alleged PIP unpaid benefits.
3. At all times during Claimant’s treatment and Plaintiff’s submission of bills to Defendant, Plaintiff was an active and licensed Florida Corporation.
4. Plaintiff was administratively dissolved for failure to file an annual report on September 23, 2016 and remained dissolved as of the date of the hearing hereon.
Relevant Florida Statutes Considered By The Court:
Fla. Stat. 607.1622(1):
“Each domestic corporation and each foreign corporation authorized to transact business in this state shall deliver to the Department of State for filing a sworn annual report on such forms as the Department of State prescribes that sets forth. . . .”
Fla. Stat. 607.1622(8):
“Any corporation failing to file an annual report which complies with the requirements of this section shall not be permitted to maintain or defend any action in any court of this state until such report is filed. . .”
Fla. Stat. 607.1421(3):
“A corporation administratively dissolved continues its corporate existence but may not carry on any business except that necessary to wind up and liquidate its business and affairs under s. 607.1405 (2009) . . . .”
Fla. Stat. 607.1405. Effect of Dissolution:
(1) “A dissolved corporation continues its corporate existence but may not carry on any business except that appropriate to wind up and liquidate its business and affairs, including:
(a) Collecting its assets;
(e) Doing every other act necessary to wind up and liquidate its business and affairs.”
(2) “Dissolution of a corporation does not:
(e) Prevent commencement of a proceeding by or against the corporation in its corporate name;
(f) Abate or suspend a proceeding pending by or against the corporation on the effective date of dissolution. . .”
Issue To Be Ruled Upon By The Court:
Defendant argues that recent case law from Florida’s Second District has resurrected an interpretation of the above statutes whereby a corporation which is administratively dissolved cannot maintain standing pursuant to Fla. Stat. 607.1622(8). Defendant argues that Fla. Stat. 607.1622(8), being a more specific statute than Fla. Stat. 607.1421(3), should prevail when the two are interpreted together. Defendant cites to Trans Health Mgmt. v. Nunziata, 159 So.3d 850 (Fla. 2nd DCA 2014) [40 Fla. L. Weekly D43a], and Island Breeze Boat Club. v. Destination Boat Clubs, 172 So.3d 878 (Fla. 2nd DCA 2015). Defendant claims that these two cases, being the more recent opinions on the issue of administrative dissolution, are binding upon this Court and require this Court dismiss Plaintiff’s action, or at the very least order Plaintiff to file an annual report to reacquire standing Nunc Pro Tunc. See Allied Roofing Indus. v. Venegas, 862 So. 2d 6, 9 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D1623a]
Plaintiff argues that an administratively dissolved corporation is not required to file an annual report to retain standing where it is simply winding up its affairs. Plaintiff contends that Fla. Stat. 607.1622(8) only applies to existing corporations continuing their business. Plaintiff argues that Fla. Stat. 607.1421(3) specifically authorizes Plaintiff to seek the payment of the alleged PIP benefits because it is an outstanding debt, the collection of which, is necessary for Plaintiff to wind up its business.
Applicable case law and conclusions:
In 2014, the Second District Court Of Appeals published Trans Health Management v. Nunziata, 159 So.3d 850 (Fla. 2nd DCA 2014) [40 Fla. L. Weekly D43a]. That opinion states:
As to THMI, we must dismiss the appeal because it is precluded from prosecuting this appeal by the provisions of section 607.1622(8). That section provides that a corporation that has been administratively dissolved for failing to file an annual report “shall not be permitted to maintain or defend any action in any court of this state” until the annual report is filed and the appropriate taxes are paid. While administratively dissolved corporations are generally permitted to wind up their affairs, see § 607.1421(3), and while administrative dissolution does not generally “[p]revent commencement of a proceeding by or against the corporation in its corporate name,” § 607.1405(2)(e), these general rules do not apply to the specific circumstance of a corporation administratively dissolved for failing to file its annual report. Instead, for those corporations, the specific provisions of section 607.1622(8) control over the more general provisions of section 607.1405(2)(e). See, e.g., Cricket Props., LLC v. Nassau Pointe at Heritage Isles Homeowners Ass’n, 124 So. 3d 302, 307 (Fla. 2d DCA 2013) [38 Fla. L. Weekly D2163e] (“[A] more specific statute covering a particular subject is controlling over one covering the same subject in general terms.” (citing Mendenhall v. State, 48 So. 3d 740, 748 (Fla. 2010) [35 Fla. L. Weekly S631a])).
However, Nunziata seems to be in direct conflict with the precedent set by the Fourth and Fifth Districts Courts of Appeal. See Cygnet Homes, Inc., v. Kaleny Ltd. Of Florida, Inc., 681 So. 2d 826, 826 (Fla. 5th DCA 1996) [21 Fla. L. Weekly D2171c]; National Judgment Recovery Agency, Inc. v. Harris, 826 So. 2d 1034 (Fla. 4th DCA 2002) [27 Fla. L. Weekly D1866d]. The Third District Court of Appeal is in agreement both Cygnet and Nat’l Judgment. See K & M Shipping v. Penel, 834 So. 2d 876 (Fla. 3d DCA 2002) [27 Fla. L. Weekly D2390c] (Citing to both Cygnet and Nat’l Judgment). Additionally, Nunziata is in conflict with the Second DCA’s own precedent. See PBF of Fort Myers, Inc. v D&K Partnership, 890 So.2d 384 (Fla. 2d DCA 2004) [30 Fla. L. Weekly D15a] (“The Rosses urge us to reject the National Judgment decision and adopt the rationale of the court in Vacation Break. We decline to do so. We agree with the rationale of the National Judgment decision, that section 607.1622(8) pertains to existing corporations which have failed to file annual reports and not corporations which have been dissolved.”). This Court must conclude that there is interdistrict conflict in how to address standing for administratively dissolved corporations and therefore Trans Health Mgmt. v. Nunziata, is persuasive but not controlling on this Court. See Pardo v. State, 596 So.2d 665, 666 (Fla. 1992).
The Third District Court of Appeal has opined on this issue in K & M Shipping v. Penel, 834 So. 2d 876 (Fla. 3d DCA 2002) [27 Fla. L. Weekly D2390c], and National Judgment, 826 So.2d 1034, 1035 (Fla. 4th DCA 2002). In K & M Shipping v. Penel, the court opined quite clearly; “[a]s a preliminary matter, the appellant dissolved corporations have standing to proceed in this appeal.” 834 So. 2d 876 [27 Fla. L. Weekly D2390c]. Similarly, in Allied Roofing Indus. v. Venegas, 862 So. 2d 6, 9 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D1623a], the court stated in dicta that administratively dissolved corporations can continue their existence to wind up their business. Id. at 8. These Third District Court of Appeal cases cite approvingly to both National Judgment and Cygnet. Therefore, the Third District Court of Appeal has incorporated the holding and rationale of National Judgment and Cygnet. This Court concludes that an administratively dissolved corporation can continue an action pursuant to Fla. Stat. 607.1405 and that Fla. Stat. 607.1622(8) was not intended to bar a corporation from winding up its business. Cygnet Homes, Inc., v. Kaleny Ltd. Of Florida, Inc., 681 So. 2d 826, 826 (Fla. 5th DCA 1996) [21 Fla. L. Weekly D2171c]; K & M Shipping v. Penel, 834 So. 2d 876 (Fla. 3d DCA 2002) [27 Fla. L. Weekly D2390c].
Defendant argues that Nunziata, decided in 2014, and Island Breeze, decided in 2015, represent a more modern view of the issue of administrative dissolution. This argument is not persuasive considering there has been no change to the statutes in question in the past 20 years, Nunziata fails to address the countervailing opinions which Defendant asserts Nunziata is replacing, and the argument in Nunziata mirrors the argument made in Vacation Break of Boca Raton, Inc., v. Breeden, 765 So.2d 281 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D1955b], the case the 4th DCA analyzed and recedes from in National Judgment. 826 So. 2d at 1035 (“We now recognize that the distinction made in Vacation Break, between an administratively dissolved corporation and a voluntarily dissolved corporation, is inconsistent with the statutes. We therefore recede from Vacation Break and follow Cygnet.”). Specifically, the court in Nunziata stated:
[W]hile administrative dissolution does not generally “[p]revent commencement of a proceeding by or against the corporation in its corporate name,” § 607.1405(2)(e), these general rules do not apply to the specific circumstance of a corporation administratively dissolved for failing to file its annual report. Instead, for those corporations, the specific provisions of section 607.1622(8) control over the more general provisions of section 607.1405(2)(e). See, e.g., Cricket Props., LLC v. Nassau Pointe at Heritage Isles Homeowners Ass’n, 124 So. 3d 302, 307 (Fla. 2d DCA 2013) [38 Fla. L. Weekly D2163e] HN2 (“[A] more specific statute covering a particular subject is controlling over one covering the same subject in general terms.” (citing Mendenhall v. State, 48 So. 3d 740, 748 (Fla. 2010) [35 Fla. L. Weekly S631a])).
Trans Health Mgmt. v. Nunziata, 159 So. 3d 850, 855-56 (Fla. 2d DCA 2014) [40 Fla. L. Weekly D43a] (emphasis added).
Similarly, the now defunct Vacation Break of Boca Raton v. Breeden, states:
Section 607.1405 and section 607.1622(8) are readily harmonized. Clearly, a dissolved corporation can maintain and defend lawsuits in winding up its business affairs; however, where the dissolved corporation has been administratively dissolved for failure to file an annual report, it may not do so without first filing the report and paying the statutory fees.
Vacation Break of Boca Raton, Inc., v. Breeden, 765 So. 2d 281, 282 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D1955b](emphasis added).
Both cases address the dichotomy between Fla. Stat. § 607.1045 and § 607.7622(8), both cases state that in general a dissolved corporation can wind up its business, both cases carve out an exception to the usual rule for administratively dissolved corporations who failed to file an annual report whereby those corporations cannot maintain or defend a lawsuit. Additionally, both cases make the argument that Fla. Stat. 607.1622(8) is a more specific statute which trumps Fla. Stat. 607.1405 when a corporation is administratively dissolved for the specific reason that it failed to file an annual report. This is the argument, language and holding that the Fourth District Court of Appeal recedes from in National Judgment Recovery Agency, Inc. v. Harris, 826 So.2d 1034 (Fla. 4th DCA 2002) [27 Fla. L. Weekly D1866d]. By incorporating Harris and Cygnet, the opinions binding this Court have already addressed Defendant’s argument. This Court finds Defendant’s argument as untenable today as it was in 2002 under National Judgment.
