28 Fla. L. Weekly Supp. 552a
Online Reference: FLWSUPP 2806BENN
Insurance — Res judicata — Insured’s voluntary dismissal of previous suit against insurer, to which medical provider that is assignee of insured was not party, does not bar provider’s suit against insurer
OCEAN CHIROPRACTIC AND HEALTH CENTER, INC., a/a/o Ronald Bennett, Plaintiff, v. CENTURY-NATIONAL INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 2017-SC-001670. August 13, 2020. Melanie Surber, Judge. Counsel: Robert B. Goldman, Florida Advocates, Dania Beach, for Plaintiff. William J. McFarlane, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS MATTER came before the Court on August 5, 2020, upon the Defendant’s Motion for Summary Judgment, and the Court having heard argument of counsel and being otherwise fully advised, it is hereby
ORDERED that Defendant’s Motion is DENIED, in reliance upon Brito v. Heritage Property & Casualty Ins. Co., 276 So.3d 990 (Fla. 3d DCA 2019) [44 Fla. L. Weekly D1898b].
Defendant argued that this lawsuit is barred under the doctrine of res judicata, and that Ronald Bennett’s voluntary dismissal with prejudice of a prior lawsuit filed against Century-National Insurance Company in St. Lucie County, to which Ocean Chiropractic and Health Center, Inc. was not a party, constitutes an adjudication on the merits in this case.
In Brito, the Third District Court of Appeal addressed the privity requirement or “identify of persons and parties to the action” necessary to establish res judicata, rejecting the insurer’s argument that an assignor and its assignee are “privies” as a matter of law. In that case, the insureds hired a mold testing company after their home was damaged as the result of a roof leak. The insureds executed an assignment of benefits in favor of the mold testing company. The assignment was only for the benefits and proceeds under any applicable insurance policies payable to the mold testing company, that pertained to the total invoice amount for the services performed by the mold testing company. After the insurer denied the claim, the insureds sued the insurer in circuit court. The mold testing company filed a separate small claims lawsuit in county court. After a jury verdict and the entry of a final judgment in favor of the insurer and against the mold testing company on the assigned invoice claim, the insurer then filed a motion for summary judgment against the insureds in the circuit court case, contending that the insured’s claim was barred by collateral estoppel and res judicata. The trial court granted that motion.
The Third District Court of Appeal reversed, finding that the assignee (mold testing company) and partial assignor (the insureds) were not “privies”; i.e., the parties were not identical for purposes of res judicata, because the mold testing company had obtained a limited assignment of the insureds’ policy rights, not a complete assignment of all rights and coverages. Just as the mold testing company had obtained a limited assignment in Brito, Ocean Chiropractic & Health Center’s assignment from Ronald Bennett was similarly limited, as he had assigned his claims to proceeds, but only to the extent of his charges.
Further, the Brito Court rejected the insurer’s argument that an assignor and its assignee are “privies” as a matter of law, where the mold testing company had acquired its limited rights before either lawsuit was filed. The Court recognized that “the argument and case law advanced by the insurer may be applicable in a case in which the assignee acquires its interests after the judgment in the first suit has been entered.” Citing Allstate Ins. Co. v. Warren, 125 So.2d 886, 888-89 (Fla. 3d DCA 1961); Barnett Bank of Clearwater, N.A. v. Rompon , 359 So.2d 571, 572 (Fla. 2d DCA 1978).* * *
28 Fla. L. Weekly Supp. 553a
Online Reference: FLWSUPP 2806FISC
Insurance — Personal injury protection — Request for information or documentation — Where medical provider failed to respond to insurer’s pre-suit request for information, condition precedent to suit was not satisfied — PIP statute does not require that request for information be sent within specific time period
JOSEPH FISCHETTI, P.A., a/a/o Cassandra Thorpe, Plaintiff, v. GARRISON PROPERTY & CASUALTY INS. CO., Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. CONO18007969, Division 70. May 7, 2020. John D. Fry, Judge. Counsel: Dylan J. Shore, Ian Bressler Law, P.A., Wellington, for Plaintiff. Christopher S. Dutton and Laura M. Myers, Dutton Law Group, P.A., Tampa, for Defendant.
[Rehearing Denied July 13, 2020.]
FINAL ORDER GRANTING DEFENDANT’S57.105 MOTION FOR SANCTIONS
This cause having come before this Honorable Court on December 18, 2019, and the Court having heard argument of counsel, the Court finds the following:
Fla. Stat. §627.736(6)(b) does not require a request for information to be sent to a provider from an insurance company within a specific period of time. In conjunction with there not being a specific time period for a request, it doesn’t obviate the Plaintiff’s obligation to comply with the request for information required to comply with the request pursuant to Fla. Stat. §627.736(6)(b).
The Plaintiff’s failure to submit additional documents or respond, and then file the instant lawsuit, required a judicial review of both the request and whether it created a condition precedent to the filing of this lawsuit. In this particular case, the Court finds that a request was made. The Plaintiff failed to respond to that request, which creates a legal question of whether the request was appropriate and a predicate to the filing of the suit.
The Court finds that the request, pursuant to Fla. Stat. §627.736(6)(b), was legally sufficient which created a bar to the filing of the suit. As such, the Court rules for the Defendant in this matter.
ORDERED AND ADJUDGED that the Court enters a FINAL ORDER in this matter and will enter an Order Preliminary, subsequent to the signing of this Order.
