8 Fla. L. Weekly Supp. 570a
Insurance — Personal injury protection — Dismissal — Assignment — Attachment of assignment of benefits by provider claiming PIP benefits pursuant to an assignment is not required by Rule 1.130 — Provider’s allegation of standing by way of assignment must be taken as true for purposes of insurer’s motion to dismiss — Motion for summary judgment based on provider’s lack of standing denied where provider’s allegation of assignment is taken as true and insurer presented no evidence supporting motion
DAVID B. MANKOWITZ, D.C., P.A., as assignee of Malachi Jackson III, Plaintiff, vs. ALLSTATE INSURANCE COMPANY, Defendant. County Court, 12th Judicial Circuit in and for Sarasota County. Case No. 2001 SC 000940 NC. May 30, 2001. Emanuel LoGalbo, Judge. Counsel: Jeffrey A. Luhrsen, Jodat & Luhrsen, P.A., Sarasota. Phil Yurecka, St. Petersburg.
ORDER DENYING MOTIONS TO DISMISSAND FOR SUMMARY JUDGMENT
This matter came before the Court on Defendant’s Motions to Dismiss and for Summary Judgment. Being fully advised, the Court finds as follows:I. Procedural Posture
This is a claim for PIP benefits brought by a medical provider claiming to have standing pursuant to an assignment of insurance benefits. Plaintiff did not attach any written document evidencing an assignment, but rather alleged assignment and, therefore, standing by pleading as follows:
Malachi Jackson III actually or equitably assigned PIP benefits to David B. Mankowitz, D.C., P.A. by written document, parol or course of conduct.
Defendant seeks dismissal based upon Plaintiff’s election not to attach an assignment. Defendant argues that attachment of the assignment is required by Florida Rule of Civil Procedure 1.130.
Defendant also seeks summary judgment based upon the absence of any record evidence showing that the insured actually or equitably assigned his benefits to Plaintiff as alleged. Discovery is ongoing.II. Conclusions of Law
Rule 1.130 does not require Plaintiff to attach a written assignment of benefits. Subsection (a) of this Rule provides:
(a) Instruments Attached. All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading. No papers shall be unnecessarily annexed as exhibits. The pleadings shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments.
(emphasis added).
The crux of the present case is breach of the insurance contract,not breach of the assignment. Therefore, the substance of the present controversy involves the terms of the insurance contract rather than the terms of any written assignment. The purpose of Rule 1.130 is to apprise the defendant of the nature of the cause of action so that it may form a reply. See Sachse v. Tampa Music Co., 262 So. 2d 17, 19 (Fla. 2d DCA 1972); citing United States Rubber Products, Inc. v. Clark, 200 So. 385 (Fla.1941)1. Consequently, attachment of the assignment is not only not required, it is prohibited by the provision of Rule 1.130 that disallows unnecessary annexation of exhibits.
Several well known and highly regarded commentators agree that documents evidencing standing need not be attached. Regarding the inapplicability of Rule 1.130 to assignments, see Berman, Florida Civil Procedure, ¶130.3[2], where the commentator wrote:
A document “upon which action may be brought or defense made” is not intended to extend generally to evidence supporting a claim or defense. Elements of a cause of action, for example, as capacity to sue, standing, pre-litigation demand (if substantively required) or other substantive elements of a claim for relief, are likely to be evidenced by a document or documents that would be offered at trial to prove entitlement to relief.Such documents are not however, required to be attachedunder subdivision (a) of this rule.2
ANOTHER WELL-KNOWN COMMENTATOR AGREES WITH BERMAN. SEE TRAWICK, FLA. PRAC. AND PROC., §6-15, WHERE THE COMMENTATOR EXPLAINS THATASSIGNMENTS NEED NOT BE ATTACHED, WRITING:
Documents relating to the right to bring the action or that are prerequisites to liability are not required. In this category are letters of administration, assignments of contracts, mortgages, judgments and other instruments unless a party to the assignment is suing for breach of the assignment . . . Allegations of the right to bring the action, of giving notices or of the prerequisites to liability are necessary.
(multiple footnotes omitted) (emphasis supplied)
There is at least one District level opinion in which the Court reached a conclusion that is consistent with the commentators’ conclusions. In Parkway General Hospital v. Allstate Insurance Company, 393 So. 2d 1171 (Fla. 3rd DCA 1981), the Court held that a medical provider’s allegation of standing by way of an assignment of benefits was sufficient to withstand a Motion to Dismiss. This holding is consistent with the well-settled proposition that Florida is an “ultimate fact” pleading jurisdiction. Florida Rule of Civil Procedure 1.110(b) only requires that pleadings contain a short and plain statement of ultimate facts. Ultimate facts, as distinguished from evidentiary facts and conclusions of law, must be pleaded. See Ingram-Dekle Lbr. Co. v. Geiger, 71, So. 552 (Fla. 1916); Barton v. Moline Properties, 164 So. 551 (Fla. 1935).
In the present case, the Plaintiff pleaded sufficient ultimate facts to acquaint the Defendant with its theories so that a reply could be formed. In considering a Motion to Dismiss, the Second District synopsized the rule3 as follows:
[T]he trial court is confined to the four corners of the complaint, and all its material allegations must be taken as true. See Davidson v. Iona-McGregor Fire Protection and Rescue Dist., 674 So.2d 858, 859 (Fla. 2d DCA 1996); Holland v. Anheuser Busch, Inc., 643 So.2d 621 (Fla. 2d DCA 1994).
This Court concludes that Rule 1.130 only requires attachment of documents forming the basis for the substantive claim. With that in mind, it is obvious that Plaintiff’s allegation of standing by way of assignment must be taken as true. See Davis. Consequently, Defendant’s Motion to Dismiss is HEREBY DENIED.
Next, Defendant seeks to prevail by way of a Motion for Summary Judgment. Defendant offers neither affidavits nor depositions in support, but rather bases its argument on the absence of any record evidence establishing Plaintiff’s standing. If not identical to its argument for dismissal, this argument by Defendant is a very close relative. Given the well settled and long standing rule of law explained in Davis, supra, coupled with the absence of any supporting evidence in support of its Motion, Defendant’s Motion for Summary Judgment must fail. Plaintiff’s allegations are taken as true, and it is Defendant’s burden as the movant to show that Plaintiff has no chance to prevail. See Hervey v. Alfonso, 650 So. 2d 644, 645-6 (Fla. 2d DCA 1995) (movant must demonstrate “that the nonmoving party cannot prevail”). In the case at bar, Defendant has presented nothing and, therefore, has not met its burden. Consequently, Defendant’s Motion for Summary Judgment is HEREBY DENIED.
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1Whi1e Clark predates the adoption of the Florida Rules of Civil Procedure, it remains controlling. At the time Clark was decided, 1936 Common Law Rule 16 was operative. Common Law Rule 16 contained a provision for attachment of documents forming the basis of a substantive claim that was nearly identical to the present day Rule 1.130.
2Citing Railey v. Skaggs, 220 So. 2d 689, 690 (Fla. 3rd DCA 1969); and Student Loan Marketing Ass’n v. Morris, 662 So. 2d 990 (Fla. 2d DCA 1995).
3See Davis v. Bell, 705 So.2d 108 (Fla. 2d DCA 1998).
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