7 Fla. L. Weekly Supp. 435b
Insurance — Personal injury protection — Insured who assigned benefits to medical care providers who agreed to accept the assignment lacked standing to bring suit against insurer — Lack of standing at time suit was filed not cured by revocation of assignments after suit was filed
FORTUNE INSURANCE COMPANY, Appellant, vs. RALPH LUGO, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 99-047 AP. Lower Case No. 98-00967 CC(01). Revised Opinion filed April 4, 2000. An Appeal from the County Court for Miami-Dade County, Florida. Jose M. Rodriguez, Judge. Counsel: Diane Tutt, for appellant. Eric Shapiro, for appellee.
(Before STUART M. SIMONS, DAVID L. TOBIN and ROSA I. RODRIGUEZ, JJ.)
[Original Opinion at 6 Fla. L. Weekly Supp. 753e;
Revised Opinion at 7 Fla. L. Weekly Supp. 239i]
(PER CURIAM.) Appellant, FORTUNE INSURANCE COMPANY (“Fortune”), filed a Motion for Rehearing of this Court’s revised opinion which was entered on January 19, 2000. In this appeal, the Appellant (“Fortune”) challenges the lower court’s denial of a Motion to Strike. The lower court’s Order denied the Appellant the right to arbitration as to certain personal injury protection (“PIP”) claims. The Appellee assigned his personal injury protection benefits to his medical care providers who agreed to accept the assignment. Due to this assignment of personal injury protection benefits, the Appellee had no standing to bring suit, as any cause of action he might have against this Appellant was assigned to his medical care providers. Accordingly, the exclusive remedy is binding arbitration by the medical care providers pursuant to the provisions of Chapter 682 of the Florida Statutes (Florida Arbitration Code). In this Court’s Opinion of January 19, 2000, a split opinion, an opposite result was reached; however, upon consideration of Fortune’s Motion for Rehearing the Court finds that further consideration of the matter is necessary.
“Motions for rehearing are strictly limited to calling the court’s attention — without argument — to something it had obviously overlooked or misapprehended.” Goter v. Brown, 682 So. 2d 155, 158 (Fla. 4th DCA 1996), rehearing denied, rehearing stricken, review dismissed, 690 So. 2d 1299; Fla. R. App. P. 9.330; Diamond Cab Co. of Miami v. King, 146 So. 2d 889 (Fla. 1962); See Fla. R. App. P. 9.330(a).
The Appellant’s Initial Brief on Appeal focused on the attempted revocation of Lugo’s assignment of benefits to his medical providers; however, the pleadings merely present a perfunctory reference to the more important issue of standing. “The determination of standing to sue concerns a court’s exercise of [subject matter] jurisdiction to hear and decide the cause pled by a particular party.” Rogers & Ford Corp. v. Carlandia Corp., 626 So. 2d 1350, 1352 (Fla. 1993).1 Further “subject matter jurisdiction is so vital to a court’s power to adjudicate that its absence can be raised at anytime.” Hernandez v. Coopervision, Inc., 661 So. 2d 33, 35 (Fla. 2d DCA 1995) citing 84 Lumber Co. v. Cooper, 656 So. 2d 1297 (Fla. 2d DCA 1994). Accordingly, the more important question for this Court is whether Lugo had standing to sue when the action was originally filed below.
“The general rule is that the right of a complainant to the relief prayed must be determined according to the facts existing at the time the original bill was filed.” Shackelford v. Old Dominion Ins. Co., 6 Fla. L. Weekly Supp. 335 (Fla. 20th Cir. Ct., Jan. 20, 1999) citing Merideth v. Long, 119 So. 114, 115 (Fla. 1928); see also Florida Power & Light Co. v. System Council U-4 of Intern. Broth. of Elec. Workers, AFL-CIO, 307 So. 2d 189, 192 (Fla. 4th DCA 1975). The Court in Shackelford explained that “[i]f a plaintiff had no valid cause of action on the facts existing at the time of filing suit, the defect cannot ordinarily be remedied by the acquisition or accrual of one while the suit is pending.” Id.2
Fortune’s Motion for Rehearing includes the argument that Lugo had no standing as to Drs. Yoham and Yerfelt when he filed suit. “[A]n assignment of benefits transfers to the assignee all of the interest of the assignor under the assigned contract, the assignor has no right to make a claim on the contract once the assignment is complete, unless authorized to do so by the assignee.” State Farm v. Ray, 556 So. 2d 811 (Fla. 5th DCA 1990). This action was filed February 6, 1998, and the purported revocations of assignment were not tendered until January 8, 1999. As it appears the assignments were made before the filing of suit and the purported revocations were not made until after the filing of suit, the Plaintiff lacked standing.
Accordingly, the Court GRANTS the instant Motion for Rehearing, VACATES its revised opinion of January 31, 2000, REVERSES the lower court’s denial of the Motion to Strike and REMANDS to the trial court for further proceedings consistent with this opinion.
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1“Generally, one with a legally protectible right or interest at stake in an otherwise justiciable controversy is a proper party to obtain judicial resolution of that controversy. The party with the right or interest at stake generally should also be a `real party in interest,’ that is, `the person in whom rests, by substantive law, the claim sought to be enforced.’ ” Carlandia Corp., 626 So. 2d at 1352.
2See also Fla. R. Civ. P. 1.050 (“Every action of a civil nature shall be deemed commenced when the complaint or petition is filed…”)
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