18 Fla. L. Weekly Supp. 169c
Online Reference: FLWSUPP 1802PHIL
Insurance — Personal injury protection — Standing — Assignment — Error to enter summary judgment in favor of medical provider where questions remain as to whether uncle who executed assignment for treatment of injured minor was minor’s guardian
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. APPLETON CHIROPRACTIC CENTER, INC., a/a/o RONEL PHILOGENE, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. CACE09-052012. December 1, 2010. Honorable Leonard Feiner, Judge.
OPINION
(GOLD, Judge.) THIS CAUSE comes before the Court, sitting in its appellate capacity, upon the consolidated appeals by Appellant, United Automobile Insurance Company (herein “United Auto”), of the trial court’s final judgment in favor of Appellee, Appleton Chiropractic Center, Inc. Appleton Chiropractic Center, the plaintiff below concedes error as to the first issue on appeal. As to the second issue raised by United Auto, that the trial court erred in entering its final judgment without determining the issue of standing on the merits, the Court dispenses with oral argument and finds as follows:
Based upon this Court’s prior ruling in Trauma Medical Services v. United Automobile, 16 Fla. L. Weekly Supp. 596a (Fla. 17th Judicial Circuit, County Court, 2009, Judge Feiner), a plaintiff’s lack of standing at the inception of a case is not a defect that may be cured by the acquisition of standing after the case is filed. See also Progressive Express v. McGrath Community Chiropractic, 913 So. 2d 1281 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D2622b] (explaining that, unlike a statutory requirement of the construction lien law, an assignment of PIP benefits concerns the claimant’s standing to bring the action. For a medical provider to bring an action for PIP benefits, the insured must assign his or her right to such benefits under the policy to the medical provider.).
Here, the record shows that questions remain about whether the assignment, executed by the uncle of the minor who was injured in the accident, comports with the requirements of section 627.736(5)(a), Florida Statutes, which requires assignment by the minor’s guardian. There is no evidence in the record that the minor’s uncle is the child’s guardian. See Hartford Ins. Co. of Se. v. St. Mary’s Hosp., Inc., 771 So. 2d 1210, 1212 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D2523a] (holding that without a valid assignment of the right to personal injury protection (PIP) benefits, a hospital lacked standing to bring suit against the automobile insurer pursuant to the No Fault laws or the insurance contract). As such, the trial court erred in entering summary judgment and failing to determine whether the Plaintiff had standing in this case. Accordingly, it is
ORDERED AND ADJUDGED that:
(1) The trial court’s final judgment dated March 30, 2009 is hereby REVERSED and REMANDED for any further proceeding consistent with this opinion; and,
(2) Appellee’s Motion for Appellate Attorney’s Fees is hereby DENIED.
