8 Fla. L. Weekly Supp. 406a
Civil procedure — Insurance — Personal injury protection — Where court previously held that medical provider lacked standing because assignment of benefits to medical provider was not supported by valid consideration where it held insured personally liable to provider in event provider did not collect from insurer and also made insured personally liable for interest for any balance owed 45 days after service, medical provider could not subsequently amend the assignment and then file amended complaint basing its standing allegations upon the amended assignment — Standing is determined by facts in existence at time of filing of original complaint — Motion for clarification and to allow plaintiffs’ amended complaint to stand is denied
AMERICAN DIAGNOSTIC INSTITUTE, INC. (Walter Gozzersing), Plaintiff, vs. ALLSTATE INDEMNITY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 00 08725-54. March 21, 2001. Zebedee Wright, Judge. Counsel: Catherine Pellizarri, for Plaintiff. Rafael Katz and Allison Dudley, Tolgyesi, Katz, Hankin & Katz, P.A., Hollywood, for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR CLARIFICATION OF THECOURT’S ORDER ON DEFENDANT’S MOTION TO DISMISS AND/ORMOTION FOR LEAVE OF COURT AND TO ALLOW PLAINTIFF’SAMENDED COMPLAINT TO STAND[Original Opinion at 8 Fla. L. Weekly Supp. 125a]
THIS CAUSE, came to be heard upon Plaintiff’s Motion for Clarification of the Court’s Order on Defendant’s Motion to Dismiss and/or Motion for Leave of Court and to Allow Plaintiff’s Amended Complaint to Stand. This Honorable Court has considered the record, the pleadings filed, the argument of the parties, and has been otherwise duly advised in the premises.
Plaintiff, AMERICAN DIAGNOSTIC INSTITUTE, INC. (ADI), filed suit to recover personal injury protection benefits. ADI is a medical service provider which claimed standing to file this suit based upon a document which Plaintiff titles “irrevocable assignment of benefits” which purportedly assigns personal injury protection benefits from Defendant’s insured to Plaintiff. Defendant filed a Motion to Dismiss Plaintiff’s Complaint on the grounds that Plaintiff did not have standing to file suit because it did not have a valid assignment of benefits from Defendant’s insured. This Honorable Court granted Defendant’s Motion to Dismiss after having heard argument of the parties. This Court’s Order on Defendant’s Motion to Dismiss was entered on October 23, 2000, and can be found at 8 Fla. L. Weekly Supp. 125 (Broward County Court, 2000).
ADI subsequently filed an Amended Complaint on or about November 10, 2000. ADI did not seek leave of court to file this Amended Complaint. ADI’s Amended Complaint incorporates an affidavit from the President of ADI, Humberto Bogani. Said affidavit is marked as “Exhibit D” to Plaintiff’s Amended Complaint.
The affidavit attached to Plaintiff’s Complaint is alleged to be an “amendment to the assignment of benefits attached to the Plaintiff’s Original Complaint.” In the affidavit, Mr. Bogani indicates that the purpose of the affidavit “is to void, nullify and/or waive paragraphs four (4) and five (5) of the irrevocable assignment of PIP benefits … thereby conveying a true legally binding assignment of PIP benefits from [Defendant’s insured] to American Diagnostic institute, Inc.. [sic].” The amendment further goes on to state that ADI will not hold Defendant’s insured liable for any amounts unpaid by Defendant or seek to collect interest from Defendant’s insured on unpaid balances. It should be noted that paragraphs four (4) and five (5) of the original “irrevocable assignment of benefits” held the insured responsible for payment of any amounts unpaid by the insurance company, including interest for late payments.
Defendant filed a Motion to Strike Plaintiff’s Amended Complaint because Plaintiff failed to seek leave of court to file same. On February 5, 2001, some three (3) months after the Court’s Order was entered in this case, Plaintiff filed its Motion for Clarification of the Court’s Order on Defendant’s Motion to Dismiss and/or Motion for Leave of Court and to Allow Plaintiff’s Amended Complaint to Stand. Plaintiff seeks clarification as to whether the dismissal of its original Complaint was with or without prejudice. Plaintiff was advised at the time of the hearing on this motion that the dismissal was without prejudice.
Plaintiff next argues that leave of court to amend complaints should be liberally granted. This Honorable Court agrees. However, Plaintiff is not seeking to amend its Complaint. Rather, Plaintiff is seeking to re-create or modify the contract (or as Plaintiff calls it, the “irrevocable assignment of benefits”) which Plaintiff claims gives it standing to file this suit.
Amending the document or contract at issue in order to gain standing is not the same as amending a complaint to allege standing when the failure to allege standing was simply the result of a mistake. Plaintiff is not seeking to fix its Complaint to allege facts which were in existence at the time of the original filing. Rather, Plaintiff seeks to allege facts and to create entirely new documents, which arose after the filing of the original Complaint in order to acquire and assert standing to file this suit. Without question, in order for this Honorable Court to have subject matter jurisdiction, ADI must have standing to bring this suit, and must have had said standing at the time of the filing of the original Complaint.
ADI did not have standing to file this suit at the time of the filing of the original Complaint. “When the claim … asserted in [an] amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading.” Fla. R. Civ. Pro. 1.190(c). This Honorable Court finds the instant case analogous to the recent case of Fortune Insurance Co. v. Lugo, 7 Fla. L. Weekly Supp. 435b (Fla. 11th Cir. Ct., April 4, 2000). In Lugo the question was whether the Plaintiff had standing to sue at the time the action was filed. The insured signed revocations of assignments after suit was filed. The court went on to find that unless there was a “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. citing Shackelford v. Old Dominion Ins. Co., 6 Fla. L. Weekly Supp. 335 (Fla. 20th Cir. Ct., Jan. 20, 1999).
The Plaintiff seeks leave to file an Amended Complaint which bases its standing allegations upon a document created after the filing of the original Complaint, specifically, the affidavit of Mr. Bogani. Even if Plaintiff were allowed to file its Amended Complaint, the Amended Complaint would relate back to the date of filing of the original Complaint. Plaintiff did not have standing to file suit at the time the original Complaint was filed. Plaintiff cannot now assert standing based upon facts which came into existence after the filing of the original Complaint. For these reasons, Plaintiff’s Motion for Clarification of the Court’s Order on Defendant’s Motion to Dismiss and/or Motion for Leave of Court and to Allow Plaintiff’s Amended Complaint to Stand is denied.
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